'The Comey Rule' & 'Citizens United'

Brendan Gleeson as President Trump in The Comey Rule (Vanity Fair/IMDb)

Earlier this week, Showtime concluded The Comey Rule, a two-part miniseries adaptation of former FBI director James Comey’s book A Higher Loyalty. Both the book and the series depict the most controversial parts of Comey’s tenure: the tail-end of Obama’s presidency, and the first few months of Trump’s. Comey has become something of a Resistance hero since Trump removed him from his position, a symbol of the liberal fantasy that Trump would be removed from power by non-electoral means.

I have neither read Comey’s book nor watched the miniseries, nor do I plan to (only a mild curiosity about Brendan Gleeson’s performance as Trump inspires any interest in me). These attempted recreations of recent events tend to have a stilted quality, partially a product of catering to their intended audience (which I definitely am not). But my lack of interest in the show would never extend to a desire to see it banned. This assertion may seem apropos of nothing, but it is not — and here’s why.

Something else the Left has a fantasy about is the 2010 Supreme Court decision in Citizens Election v. Federal Election Commission. In the liberal imagination, this decision essentially allowed corporations to take control of our political system. In reality, the item directly at issue in the case, which led to the Court’s decision, was a movie whose release the then-operative campaign-finance laws had stymied. It’s true that Hillary: The Movie was an anti-Clinton effort spearheaded by Citizens United, but the regulations that held up its release before the 2008 primary remain bizarrely onerous. From the Court’s decision [some citations omitted]: 

Before the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibited—and still does prohibit—corporations and unions from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections. BCRA §203 amended §441b to prohibit any “electioneering communication” as well. An electioneering communication is defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary or 60 days of a general election. §434(f)(3)(A). The Federal Election Commission’s (FEC) regulations further define an electioneering communication as a communication that is “publicly distributed.” 11 CFR §100.29(a)(2) (2009). “In the case of a candidate for nomination for President … publicly distributed means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days.” §100.29(b)(3)(ii). Corporations and unions are barred from using their general treasury funds for express advocacy or electioneering communications.

Citizens United wanted to release Hillary: The Movie within 30 days of the 2008 Democratic primary; it was concerned that existing campaign-finance law prohibited this, the source of its original suit. As the opinion of the Court further noted, it had ample reason to believe so: 

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

The Comey Rule‘s creators have surely sold their program as a honest, accurate depiction of the events Comey describes. And maybe it is. But if, in doing so, it created an unflattering depiction of President Trump, within 60 days (note the difference) of a general election contest for federal office, would this have fallen afoul of preCitizens United law? I am no lawyer, and I am also wary of excessive Supreme Court deference, but here again the Court is informative:

Modern day movies, television comedies, or skits on Youtube.com might portray public officials or public policies in unflattering ways. Yet if a covered transmission during the blackout period creates the background for candidate endorsement or opposition, a felony occurs solely because a corporation, other than an exempt media corporation, has made the “purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value” in order to engage in political speech. 2 U. S. C. §431(9)(A)(i). Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime. Yet this is the statute’s purpose and design.

Maybe Showtime would have counted as an “exempt media corporation,” and The Comey Rule would have encountered no issues. But the Citizens United decision points out the double standard this would create, allowing corporations with explicit media operations rights that those without them would not have.

At any rate, I am sure that those involved in making The Comey Rule are grateful not to have had to worry or really even think about government censorship. For many before the Citizens United decision, this was a serious concern. That is what the case was about.

Jack Butler is an associate editor at National Review Online.

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