March 27, 2009

Obama Administration Thinks it’s Acceptable to Ban Books about Politicians – Depending on Who Pays for Them

When Hillary Clinton was still a presidential candidate claiming she dodged sniper fire in Bosnia, a conservative nonprofit group called Citizens United put together a little film called “Hillary: The Movie.” The FEC felt that this film, especially since it was being advertised and distributed during the presidential campaign, was in violation of the so-called Bipartisan Campaign Finance Act, or, as it is more popularly known, McCain-Feingold. Citizens United understandably felt that the FEC and McCain-Feingold itself was in violation of something called the First Amendment. Unfortunately, a federal district court upheld the FEC’s ruling, but now the Supreme Court has a chance to correct the error.

During oral arguments before the Supreme Court Deputy Solicitor General Malcolm Stewart argued that not only films and television ads could be banned by the law, but also books and websites as well. Upon hearing this Justice Alito seemed a bit stunned. From the Wall Street Journal:

"That's pretty incredible," said Justice Samuel Alito. "You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?" Yes, Mr. Stewart said, if a corporation or union were paying for it. It would be possible to "prohibit the publication of the book using the corporate treasury funds."

As the piece points out:

“…McCain-Feingold is a blunt instrument that gives federal bureaucrats the power to decide what kind of campaign advertising is allowed during an election. If "Hillary: the Movie" isn't allowed, then Michael Moore's documentaries should be banned, and newspaper endorsements would also be suspect despite a specific carve-out in the law. If newspapers didn't have that carve-out, then maybe so many editors wouldn't cheerlead for this kind of law.”

Hopefully, the Supreme Court will take this opportunity to simply declare McCain-Feingold unconstitutional.

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