Convention week is a good time to reflect on campaign spending and the controversies over the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. The battle-lines around that controversial decision have been clearly drawn along partisan lines — so clearly, in fact, that it seems increasingly impossible to find not just a common ground on the decision but even a common understanding of the opinion. I will be defending Citizens United in the hope that, if the two sides cannot find common ground, perhaps there is a common understanding about this controversial case.
Citizens United overturned a law that prohibited a nonprofit, political organization from making available on pay-per-view a movie critical of then-candidate Hillary Clinton. Citizens United — which describes itself as “dedicated to restoring our government to citizens’ control” by using “a combination of education, advocacy, and grass roots organization” — would have had their movie banned simply because it was made by a corporation.
In 2004, Citizens United tried to use the same law to block advertisements for Michael Moore’s Fahrenheit 9/11. The Federal Election Commission ruled that Moore’s movie did not violate the law because the ads were not aired within 60 days of the general election. Although this attempt by Citizens United was a naked display of partisanship, it also demonstrated how the FEC’s rules create a regulatory environment amenable to partisan bickering over arbitrary and meaningless distinctions (why 60 days before an election?).
Citizens United’s victory in the Supreme Court helped strip the FEC of some of this arbitrary power. For example, under the law struck down in Citizens United, The Obama Effect, a recent movie about a man who devotes his life to getting President Obama elected in 2008, could easily have been banned by the FEC as an improper “electioneering communication” financed by a corporation. It would have been left to the discretion of FEC regulators to determine whether the movie is improper political speech. Even movies such as Zero Dark Thirty, the upcoming film about the Osama bin Laden assassination, are not exempt in principle from the FEC’s watchful eyes.
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