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As Justice Kennedy—the presumed swing vote among the justices—noted, If we concede … that a short, 30-second, 1-minute campaign ad can be regulated, you want me to write an opinion and say, “well, if it’s 90 minutes, then that’s different.” It seems to me that you can make the argument that … 90 minutes is much more powerful in support or in opposition to a candidate. Olson disagreed, however, stating that the Court had previously found that broadcast materials whose purpose was to “inform and educate,” in addition to mere persuasion, were “on the line of being permissible.” As a documentary film, Olson argued that Hillary: The Movie held greater potential than the typical 30-second campaign commercial to educate viewers. Justice Souter did not appear to be persuaded, saying, [The film is] not a musical comedy. I think we have no choice, really, but to say this is not issue advocacy; this is express advocacy saying “don’t vote for this person.” And if that is a fair characterization, the difference between 90 minutes and 1 minute, either for statutory purposes or constitutional purposes, is a distinction that I just cannot follow. Souter’s question suggested that his position was that neither the length of the film nor its general level of information was relevant to whether Citizens United could legally broadcast it. Because it was (to Souter, presumably) a totally one-sided description of why Hillary Clinton was unfit for the White House, the movie amounted to electioneering of the sort proscribed by the BCRA.
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Conor M. Dowling (Super PAC!: Money, Elections, and Voters after Citizens United (Routledge Research in American Politics and Governance))