Supreme Court cases are always a difficult topic for the MSM to deal with. When the Supreme Court takes a case, they agree to decide specific questions raised by the parties (or on rare occassions by the Court itself). The media, however, likes to talk about the juicy facts in the case even though those facts may have nothing to do with the questions presented.

In this case, there are four questions presented. Three of them have to do with prior decisions -- the McConnell decision generally upholding McCain-Feingold and the Wisconsin Right to Life decision which excluded certain types of advertising from the concept of electioneering communications. The last question has to deal with whether a movie should be treated like an ad or if it is exempt from the concept of electioneering communication.

These questions give some hint about what to expect in this case. Two of the Justices (Scalia and Thomas) were clear in the McConnell decision that they thought that McCain-Feingold was completely unconstitutional (and actually that they would overturn prior decisions and hold additional parts of the previous regime unconstitutional too). Basically, the most that Scalia and Thomas will accept are disclosure requirements. They are not likely to add anything to the reach of FEC regulations.

It is less clear as to what Alito and Roberts will do. They weren't on the Supreme Court when McConnell was decided. Their positions since joining the Supreme Court seem to indicate that they are close to the Scalia-Thomas position but that may be a feature of the cases that were heard.

That makes two Justices crucial on this case -- Kennedy and Breyer. Kennedy is crucial because his prior opinions indicate that he will allow limited regulations. The regulation in this case may seem like too much for him. Breyer is key because he will focus on the intent of the legislation and will ask is this the type of thing that was meant to be covered.

tmess2 :: Hillary the Movie, the FEC, and the Supreme Court

Now for the crucial facts of the case. Citizen United is a non-profit corporation. They with help from donors made an attack documentary about then-Senator Clinton. However, nowhere in that movie did anybody say don't vote for Senator Clinton, they just gave reasons why she was a bad person who implicitly shouldn't be president. That movie was shown in a handful of cities and ads were run promoting that movie. Citizen United then wanted to get it added on cable tv through the "on demand" feature which led to them filing this case challenging FEC regulations that may have interfered with that effort. Unlike some other "on demand" shows, Citizen United would be paying cable companies to make the movie available to viewers.

Citizen United has several arguments. First, they claim that production and distribution of a movie (and ads for that movie) are so different from typical campaigning that the "preventing corruption" justification for campaign finance laws that restrict the use of corporate funds can't be stretched to cover them. Second, they claim that the movie does not meet the definition created by the Supreme Court in 2007 of a communication that "is susceptible of no reaonable intrerpretation other than as an appeal to vote" for or against a specific person. They make similar arguments for arguing against the application of the requirement for disclosure of contributors to the movie and including a disclaimer on ads and the movie.

The FEC in response notes that contrary to Citizen United's argument, the trial judges found that the movie was "an appeal to vote." Second, they claim that the constitutional limitations on the disclosure and disclaimer provisions are not as strict as the limitations on the expenditure provisions. (An argument consistent with the past decisions of the Supreme Court which has been very quick to strike down limitations on expenditures, but typically willing to accept disclosure requirements.)

The big concern in this case is actually the one raised by the Reporters Committee for Freedom of the Press. Their concern is that, by treating a documentary as an extended advertisement, all critical coverage could be brought within the scope of campaign finance laws. Part of the concern is that, while campaign finance laws include an exemption for news coverage by traditional means -- radio stations, cable stations, newspapers, broadcast tv -- they do not include an exemption for new media like the internet. As such, they see the possibility that this new media will be subject to a subjective decision by the FEC as to the purpose of news commentary -- noting specifically the concern of the minority vote on the FEC about how do you distinguish this documentary from something like Fahrenheit 9/11.

A decision in this case is likely sometime toward the end of June.

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