The Republican National Committee and other conservatives are in a lather over a new documentary and mini-series about Hillary Clinton currently in production at CNN and NBC. The presumptive presidential candidate’s future opponents think the films will be flattering to Clinton, unfairly benefitting her as-of-now nonexistent campaign. “I call on you to cancel this political ad masquerading as an unbiased production,” fumed Reince Priebus, chairman of the party, to CNN earlier this week. Priebus threatened the two networks with barring them from participating in GOP presidential primary debates if they don’t decide, by August 14, to cancel the productions.
But wait: Weren’t these some of the same people who a few years ago were arguing that a different political documentary — also about Hillary Clinton — could not be considered a political ad? They took their case all the way to the US Supreme Court in what became the Citizens United decision.
The producers of “Hillary: The Movie” argued before the Supreme Court that the 90-minute documentary they produced for the 2008 elections did “not qualify as an electioneering communication” and therefore shouldn’t be held to campaign-finance regulations. They claimed that the video-on-demand deal they wanted to offer viewers wasn’t the same as a mass-market broadcast (even though it would be offered free), and that anyway the film wasn’t “express advocacy.” The Supreme Court, of course, went far beyond the narrow question of whether “Hillary: The Movie” should be subject to disclosure and disclaimer requirements, and threw out almost all restrictions on political campaign spending.
So what’s the difference? Unlike the network productions — or at least what the GOP expects them to be — “Hillary: The Movie” was hardly flattering to Clinton. ”Steeped in sleaze,” “plagued by scandal,” “venal,” and “deceitful” were some of the phrases used to describe Clinton — and that was just the trailer. When it comes to films about Hillary Clinton, it seems, the problem conservatives have is not with the form of propaganda, but the content. Indeed, according to the website Politico, David Bossie, the president of Citizens United, is calling on both networks to air “Hillary: The Movie” to provide balance to what he called “a puff piece on an overly-celebrated figure on the left.”
Beyond all the strategic maneuvering, however, there remains the vexing question of how to regulate campaign communication. It has become increasingly difficult to define what constitutes a political advertisement. The modern media is so full of new forms of speech that the divisions TV networks still maintain between news and entertainment, for example, seem quaint. Is a candidate’s tweet a campaign ad? How about a savagely funny YouTube video that goes viral? One is tempted to say “caveat voter” and let it go at that.
But the public pays for the airwaves, and the government still has an interest in trying the referee the political conversation. The Citizens’ United decision upset the delicate balance between free speech and the corrupting influence of money, opening the floodgates to billions of dollars in unregulated campaign cash. But in their ruling the justices did leave a broad opening for Congress to adopt new disclosure laws that would at least throw some light on who is paying for all this speech. Congress should adopt some sunshine rules now, before the next campaign begins in earnest.