Anti-Hillary Movie Smacks of Campaign Ad, Judges Say

A panel of federal judges heard arguments today over whether the Federal Election Commission can regulate promotional ads calling Sen. Hillary Clinton a “European Socialist” for a movie that sets fire to her record as First Lady and a New York senator.

The judges appeared to agree that the 90-minute movie, produced by the conservative group Citizens United, was thinly veiled campaign advertisement, not an issue-oriented documentary, as attorney James Bopp argued.

“What’s the issue?” asked Judge A. Raymond Randolph, of the U.S. Court of Appeals for the D.C. Circuit.

Bopp, lowering his voice, said, “That Hillary Clinton is a European Socialist. That’s an issue.”

“That doesn’t say don’t vote against her?” U.S. District Judge Royce Lamberth asked later.

No, Bopp replied. Neither the ads nor the movie exhorts viewers to vote against Clinton.

“Because it doesn’t use the magic word,” said Lamberth, archly.

“Hillary: The Movie” is the group’s fourth film. It is scheduled for release on DVD and single screenings in Washington and California. At issue was not the movie itself but whether the ads sprang provisions of campaign finance law requiring disclosure of donor information and the group’s name.

The Bipartisan Campaign Reform Act of 2002 provides for a three-judge panel of both federal district and appellate judges to hear disputes in some cases. Lamberth and Randolph were joined by U.S. District Judge Richard Roberts, who pressed the FEC on whether the harm of stripping the donors of their anonymity outweighed the harm to the public of non-disclosure.

The FEC targeted the ad as electioneering communication, much as it had in 2004 when director Michael Moore tried to air ads critical of President Bush to promote his movie Fahrenheit 9/11. Ultimately, the FEC made him remove any mention of Bush from the ads.

Citizens United’s catalogue also includes 2004’s Celsius 41.11: The Temperature at Which the Brain Begins to Die, a conservative counterpoint to Moore’s Fahrenheit 9/11; Border War: The Battle Over Illegal Immigration; and ACLU: At War With America.