Now showing: 'Hillary: The Movie' and election-law gripes

The film's creators dispute a finding that election rules apply to their promotional ads. Next stop: the Supreme Court.

By Warren Richey | Staff writer of The Christian Science Monitor

from the February 1, 2008 edition

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To many supporters of President Bush, Michael Moore's 2004 documentary "Fahrenheit 9/11" was a blatant attempt to use factual distortions, conspiracy theories, and irreverent wit to undermine the reelection of a sitting president.

The film's popularity did not go unnoticed among Republicans. Now, with the 2008 presidential primaries well under way, a Washington-based conservative advocacy group has produced its own political documentary. It's called "Hillary: The Movie."

There's just one problem. Without extensive broadcast advertising, few people will see it.

"I could have the movie in hundreds of theaters. I just can't let anyone know it is there by advertising it," complains executive producer David Bossie. "I can't purchase ad time on television or radio stations."

"Hillary: The Movie" premièred Jan. 16 in Washington. It is being screened in select cities, including showings in San Diego on Feb. 1 and Santa Ana, Calif., on Feb. 2. But because of its hard edge and timely political subject matter, the Federal Election Commission has put restrictions on three broadcast advertisements promoting the movie. Under campaign-finance regulations, ads for the film must include a political disclaimer and the film's financial backers must be disclosed to the FEC and the public.

The group, Citizens United, objects to the preconditions. Its leaders say they are just trying to get people to see their movie or purchase the DVD, not defeat a particular presidential candidate. So they sued in federal court in Washington, D.C. – and lost.

In an appeal to the US Supreme Court, the group's lawyer, James Bopp, argues that the three ads are not "electioneering communications" advocating the election or defeat of a particular candidate. The ads are simply an effort to inform potential viewers about a political documentary. For the FEC to impose disclosure and disclaimer requirements is an unconstitutional infringement of free speech, Mr. Bopp says.

Judges say election rules apply

Last week, a three-judge district court panel rejected Bopp's argument. It found that "Hillary: The Movie" is the functional equivalent of the kind of corporate-funded campaign attacks that election laws are designed to prevent. The panel also ruled that even though the advertisements about the film did not themselves amount to political attacks, the FEC was still within its power to impose disclosure and disclaimer requirements on the ads.

That's the issue Bopp is presenting to the Supreme Court. The justices are scheduled to discuss whether to take the case on an expedited basis during their Feb. 15 conference.

"I just don't see how the Federal Election Commission has the authority to use campaign-finance rules to regulate advertising that is not related to campaigns," Bopp said in a phone interview.

The First Amendment lawyer is a prominent opponent of the 2002 campaign-finance reform law cosponsored by Sens. John McCain (R) of Arizona and Russ Feingold (D) of Wisconsin. Last year, Bopp persuaded a majority of justices to scale back rules in the McCain-Feingold law governing "issue advertising." Analysts see the latest lawsuit as a bid to extend that holding.

"The law is clearly being tested, and I think [Bopp's] assumption is that this court now is going to be more sympathetic to these challenges," says Washington lawyer Robert Bauer, an election law expert. But it is not clear, Mr. Bauer adds, that the Supreme Court will agree to hear the case.

The market is now

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