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Given the FEC’s previous refusal to grant Citizens United a media exception to disseminate its John Kerry movie, there was a high probability that Hillary: The Movie would meet a similar fate in 2008. Citizens United probably knew that the FEC was likely to claim that considering its exclusively negative tone and laser-like focus on Senator Clinton, Hillary: The Movie amounted to a 90-minute campaign commercial well within the BCRA definitions of “electioneering,” and as such could neither be aired on broadcast outlets nor advertised over the airways within the applicable time limits. This presented an obvious marketing challenge. Were it limited to only movie theater screenings and online DVD sales, the film’s audience would be considerably narrower than intended. Citizens United surely realized that the only way to proceed with its plans to market political documentaries was to change the rules of the game. In December 2007, Citizens United brought suit against the FEC in the United States District Court for the District of Columbia. The purpose of the suit was to secure an injunction prohibiting the FEC from enforcing the electioneering provisions of the BCRA with regard to Hillary: The Movie. To that end, Citizens United made a First Amendment challenge, claiming that the BRCA’s bans on electioneering communications amounted to an unconstitutional infringement on its members’ freedom of speech. Moreover, the group alleged that because in its view its electioneering activities could not be banned, the disclosure requirements of the BCRA were also unconstitutional. First Amendment speech protections have long clashed with the restrictions imposed by campaign finance regulations. The general conflict in American campaign finance case law is that restrictions on contribution and/or spending are viewed by some as unreasonable restrictions on political speech, which has traditionally garnered significant protection (for an excellent summary, see: La Raja 2008, Ch. 3).
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Conor M. Dowling (Super PAC!: Money, Elections, and Voters after Citizens United (Routledge Research in American Politics and Governance))