Legal News

Could Hillary-Movie Case Bring Down McCain-Feingold?

By Ashby Jones

Arguments before the Supreme Court often make for rather dull, and predictable, affairs. The justices have presumably read the briefings, so they know what each side is going to argue. Often, they use the arguments to clear up a minor point or, Court watchers sometimes say, try to persuade the other justices to adopt their positions.

But the script seemed to get tossed out the window on Tuesday during arguments over whether the airing of a documentary attacking Hillary Clinton violated the McCain-Feingold campaign finance law and, in the end, just how far McCain Feingold is constitutionally permitted to reach. Click here for the NYT story; here for the take from Legal Times’s Tony Mauro.

The issue bandied about on Tuesday asked whether banning the broadcast of "Hillary: The Movie," 30 days before last year’s Democratic primary, violated McCain-Feingold (a lower court said yes), and whether that application of McCain-Feingold violated the constitution.

Much of the intrigue arrived courtesy of Malcolm Stewart, the lawyer for the government. According to the NYT’s take, Stewart largely argued that Congress has the sweeping power to ban political books, signs and videos, so long as they’re paid for by corporations and disseminated not long before an election.

Stewart argued there was no difference in principle between the 90-minute documentary and a 30-second television advertisement, a position which Justice Kennedy seemed to find hard to stomach.

"If we think that the application of this to a 90-minute film is unconstitutional," Justice Kennedy said, "then the whole statute should fall under your view because there's no distinction between the two?"

It didn’t sit well with other justices, either. According to the NYT’s Adam Liptak: “by the end of an exceptionally lively argument at the Supreme Court on Tuesday, it seemed at least possible that five justices were prepared to overturn or significantly limit parts of the court's 2003 decision upholding the McCain-Feingold campaign finance law . . . .”

Part of the problem facing the law seems to lie within the current makeup of the court. Justice Alito replaced Justice Sandra Day O'Connor, an author of the 5-to-4 decision upholding the McCain-Feingold law in 2003. Justice Alito appears to be more skeptical of campaign finance regulation than Justice O'Connor was.

The Court could take a somewhat narrow approach to the case. But, according to Liptak, Stewart's answers on Tuesday seemed to invite the court toward a broader ruling.

Justice Scalia admitted to feeling a little “disoriented.” "We are dealing with a constitutional provision, are we not, the one that I remember which said Congress shall make no law abridging the freedom of the press?" he asked.

Full post as published by Law Blog - WSJ.com on March 25, 2009 (boomark / email).