Conservative Judicial Activism Runs Wild In the Case of Hillary the Movie

Personal question: What do you do when you hear a claim that not only is blatantly false, but which many Americans still believe anyway? If it involves something you’re drinking coming out of your nose, put down the coffee.

The constant carping about “liberal activist judges” is just such a claim. You know the drill – left wing judges “overturning the will of the people, disregarding the Constitution and [holding] a soft stance on crime, never mind that the will of the people is irrelevant, and a stance on anything is (or should be) forbotten.

Judges merely interpret (or should merely interpret) what others have written, be it a constitution, law or contract. If you do not like the result, don’t blame the judge – blame whoever drafted the document. Justice Brennen, in a 1987 radio interview eloquently stated this principle in response to a complaint about liberal activist judges letting off “creeps” on “technicalit[ies]”:

“You and the media ought to be ashamed of yourself to call the provisions and the guarantees of the Bill of Rights technicalities. They’re not. We are what we are because we have those guarantees, and this Court exists to see that they are faithfully enforced. These guarantees have to be sustained—even though the immediate result is to help out some very unpleasant person. They’re there to protect all of us.”

In contrast, for a perfect example of genuine judicial activism, look no further than the case of Hillary – the Movie, officially known as Citizens United v. Federal Election Commission, only instead of so-called liberal activists, this merely represents the most recent example of blatant activism committed by the ultraconservative five-justice majority of the United States Supreme Court.

In 1998, Congress published a report on the 1996 elections in which it “concluded that the soft-money loophole [in campaign finance laws] had led to a meltdown of the campaign finance system.” The subsequent Bipartisan Campaign Reform Act of 2002, aka the McCain-Feingold Act sought to close those loopholes.

Among other things, McCain-Feingold bars certain electioneering communications paid for by corporations or labor unions. It also bans electioneering communications within 30 days of a primary. “Electioneering communications” are ads actually supporting or attacking a specific candidate disguised as an issue ad or discussion, in an attempt to skirt McCain-Feingold prohibitions.

The Supreme Court recently upheld the constitutionality of McCain-Feingold in McConnell v. Federal Election Commission (2003) There, as in numerous others cases over the last 100 years, the Court upheld congressional authority to regulate corporate expenditures in federal elections because “[t]here is substantial evidence . . . to support Congress’ determination that such contributions . . . give rise to corruption and the appearance of corruption.”

This means, for example, that a corporation may not air an ad attacking a specific presidential candidate within 30 days of a primary.

Citizens United, a nonprofit organization attempted exactly that. It produced Hillary – the Movie, and sought to televise it in January, 2008, within 30 days of a primary. When the FEC blocked it from being aired, Citizens United responded that the film is just a 90-minute “documentary” of Hillary Clinton’s career.

Here’s a small sampling of quotes from the narrator and others, including the likes of Ann Coulter and Dick Morris. Innocent documentary or attack ad – you decide:

“She is steeped in controversy, steeped in sleaze, that’s why they don’t want us to look at her record.”

“I think we are at a very critical time in this country. 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.”

“[T]his vote comes down to one thing: liberty. Do you believe in liberty or don’t you? Economic liberty, free speech, protecting our borders, protecting our country from terrorism-the issue is liberty.”

We mustn’t be lolled into a state of security and complacency by the new found moderation that she likes to talk about. And we must never forget the fundamental danger that this woman [poses] to every value that we hold dear.”

If you think that sounds like an attack add, you’re not alone. A three-judge panel of the federal District Court in Washington D.C. agreed. Citizens United appealed that decision to the Supreme Court on the narrow question of whether the First Amendment permits the government to regulate this “feature-length documentary film about a political candidate.”

In other words, Citizens United did not claim the entire law was unconstitutional. It merely challenged whether the law could reach so far as to restrict the airing of its pleasant little documentary. The FEC’s position is that the movie is a 90-minute attack ad, and its funding and timing are precisely what Congress prohibited so corporations could not buy elections.

A decision was expected sometime last summer. In June, however, the Court shocked everyone by redefining the issue, calling for more briefing, and scheduling another round of arguments. The issue this time: Should prior cases, including McConnell, be overturned, and should all McCain-Feingold restrictions on soft-money electioneering be declared unconstitutional?

Huh? Neither party had questioned the law’s constitutionality, only its application in this narrow circumstance. The U.S. Constitution only authorizes federal courts to address actual cases and controversies. Without this limitation, nothing would prevent activist judges from deciding they don’t like a law, and wiping it off the books – even where no one is challenging the law.

Only the most blatantly activist court would decide, entirely on its own, that a law might be unconstitutional, despite its contrary conclusions just six years earlier, and compel one party who never challenged its constitutionality to attack it, and the other party to defend it. Yet, that’s precisely what’s happening here. And it ain’t the liberals.

The case was re-argued in September. We’ll find out any Monday now whether the five justices appointed by Republican presidents are willing to take this unprecedented step. Stay tuned.

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