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U.S. Supreme Court considers ‘Hillary’ film in ruling

It didn’t take long for “Hillary: The Movie” to turn into Citizens United v. the Federal Elections Commission, and now Arizona’s Capitol insiders are waiting to see how the U.S. Supreme Court will deal with a longstanding roadblock designed to limit the political activity of corporations and unions.

In March, the nation’s highest court heard arguments over whether the 2008 film attacking then-presidential candidate Hillary Clinton should have been subjected to restrictions typically applied to communications designed to influence elections.

The film’s producer, Citizens United, a conservative advocacy group, was prevented by the Federal Elections Commission and lower federal courts from advertising the movie without disclosing the film’s contributors and airing the sharp critique on a cable on-demand service.

The group argued the film was a documentary and not a form of corporate “electioneering communication” that is prohibited from playing on broadcast or satellite transmissions during federal “black-out” periods that precede primary and general elections.

The film features interviews with dozens of individuals such as Clinton critic Dick Morris, who portray the former first lady as a manipulative and chronic liar. Citizens United sought to air the film, which was funded by individual and corporate contributors, before the 2008 Democratic presidential primary elections.

However, when considering the limited dispute, the Supreme Court took the unusual step of ordering another hearing to address whether the court should reconsider earlier precedents and federal law that largely prohibit corporations, unions, and advocacy groups from using their treasuries to support or oppose political candidates.

Now, after the court heard additional arguments in early September, political parties, attorneys and interest groups are paying close attention to see whether the court loosens restrictions that require affected parties to form political action committees funded through voluntary employee or member contributions to play a direct role influencing candidate elections.

The case has created a divide between unwavering free speech proponents, who argue the ban on political expenditures from corporate treasuries violates constitutional rights, to progressive interests that fear the court could unleash a torrent of special-interest cash into political campaigns.

Paul Eckstein, a local attorney who frequently represents Democratic officials and causes, said he believes the court will issue a broad ruling favoring corporations, unions, and nonprofit interests.

But the attorney, whose firm Perkins Coie Brown and Bain represented the campaign of President Barack Obama, said that doesn’t mean he expects a tide of large corporate expenditures will greatly alter the political landscape for Arizona candidates.

Besides having the ability to form political action committees, the businesses are also free under court precedent to contribute to ballot campaigns, he said, adding that both activities are common.

“There’s been a lot of money in the political process,” Eckstein said. “It’s just been difficult to put it into candidate races.”

A more likely scenario, he said, is a rise in expenditures from smaller, family-owned businesses forming to advocate for candidates sharing their interests.

“It will be a lot more important to speak to business groups and I think it will benefit Republicans,” he said.
Incumbents will gain an added electoral advantage at the expense of “populists and renegades who don’t have a corporate angel,” Eckstein said.

Republican attorney Lee Miller shared Eckstein’s sentiment that large corporations would be unlikely to radically alter their current political activity or their primary objective, assuming the court delivers a broad ruling.

“They’ve got a diverse group who at the end of the day are interested in making money,” said Miller. “Shareholders are very mercenary. They want high profits and high dividends.”

But, Miller said he expects to see a rather narrow ruling. Most likely, the court will side with Citizens United, but at the same time create some sort of legal test requiring corporations to prove a “valid business purpose” in order to influence elections absent the use of political action committees.

And that, he said, would simply increase business for attorneys and political consultants, and, to a lesser degree, empower independent expenditure committees that would push the line between issue-advocacy and electioneering to benefit specific candidates.

Miller said it is unlikely that any political party would stand much to gain in Arizona, as there is no visible gap of political allegiances held by the state’s small business owners.

Todd Lang, executive director of the Citizens Clean Elections Commission, said he, too, is not expecting a “drastic” overhaul of campaign finance restrictions for corporations and unions to come out of the court’s pending decision.

Still, he said was troubled by the “overreaching” decision by the FEC to apply federal campaign finance restrictions to limit the dissemination of “Hillary: the Movie” by Citizens United.

“I’m puzzled by the government strategy of equating a two-hour movie with a 30-second advertisement,” he said, adding movies, such as films released by liberal Michael Moore, are often tinged with political messages.

But, Lang said he was wary of any decision that could greatly empower corporations and affected interest groups to “dominate” political discourse at the expense of common citizens.

The prospect of increasing corporate political might is also a concern of Bob Grossfeld, a Democrat consultant who said that campaign finance restrictions can almost always be sidetracked by determined political interests.

Grossfeld said he was most concerned that the court would throw out the so-called ‘black-out’ periods in federal campaign finance laws known as McCain-Feingold that prevent direct corporate political expenditures from occurring 30 days before and leading up to primary elections and 60 days before and leading up to the general elections.

Corporations, he added, are not people with constitutional rights. The current restrictions requiring the use of political action committees are useful inconveniences that at a minimum slow corporate decision-makers who could otherwise “write a check and get it done.”

The Supreme Court is expected to issue a ruling by the end of 2009.

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