The BCRA created new regulations on speech that Congress considered to be “electioneering communications” &emdash; broadcast statements that refer to “a clearly identified candidate for Federal office,” and are made within 60 days of a general election or within 30 days of a primary or caucus. Such communications are subject to a variety of restrictions. For example, corporations and labor unions may not fund them except through Political Action Committees.
At first, the new restrictions seemed confined to traditional campaign advertising. “There is no indication in the congressional record that Congress intended BCRA’s restrictions on political speech to extend to documentary films,” said Matthew D. McGill of Gibson, Dunn & Crutcher LLP, one of the attorneys representing the nonprofit plaintiff in Citizens United v. FEC in the Supreme Court. “When enacting BCRA, Congress’s debates focused almost exclusively on 30- and 60-second political advertisements broadcast through traditional media.”
But when Citizens United produced a film titled Hillary: The Movie &emdash; a 90-minute documentary focused on then-presidential candidate Hillary Clinton’s political history and her White House bid &emdash; the FEC said the BCRA restricted distribution of the film.
The film and related ads never urged viewers to vote for or against any candidate, though they were anything but even-handed. According to court records, one ad featured Dick Morris saying, “Hillary is the closest thing we have in America to a European socialist,” and the film featured another commentator saying, “I can tell you beyond a shadow of a doubt that uh, the Hillary Clinton that I know is not equipped, not qualified to be our commander in chief.” Citizens United released the film on DVD and in theaters to coincide with the dates when many states held primary elections or party caucuses.
Citizens United also planned to show the film on television by way of a new nationwide video on-demand channel, “Elections ‘08.” Other documentary films have been distributed via video on-demand, including Michael Moore’s Fahrenheit 9/11. And video on-demand is increasingly used by news organizations &emdash; for example, local television stations throughout the country have contracted with local cable providers to distribute their newscasts via video on-demand.
Still, the FEC claimed that Hillary: The Movie was an “electioneering communication” and that showing the film by way of video on-demand in the run-up to the primaries would violate campaign finance restrictions in the same way broadcasting a 30-second ad funded by a corporation would.
The “functional equivalent of express advocacy”
Citizens United took the issue to federal court, arguing that the BCRA’s restrictions on the film and related ads violated the First Amendment. A special three-judge district court panel in Washington, D.C. sided with the FEC, noting that the Supreme Court refused to strike down the BCRA after a facial challenge in McConnell v. FEC.
The district court found that the FEC can regulate speech that “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” After viewing the film, the court concluded that the only reasonable