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Throughout his argument, Stewart was adamant that because it was a corporate-funded, prolonged attack of Clinton’s capacity for office, and that it was intended to air on television, Hillary: The Movie was subject to the ban on electioneering communications. Since candidates had previously elected to air extended “infomercial” ads in the past (most notably, Ross Perot in 1992 and 1996), the government’s position was that a communication expressly advocating the defeat of a candidate was certainly electioneering, regardless of how long it lasted. Stewart said, It may be rare to find a 90-minute film that is so unrelenting in its praise or criticism of a particular candidate that it will be subject to no reasonable interpretation other than to vote for or against that person, but when you have that, as I think we do here, there’s no constitutional distinction between the 90-minute film and the 60-second advertisement. The government’s rationale was that the film clearly met the definition of “express advocacy” that the Court had outlined in WRTL, since the only reasonable interpretation of the film was that it was encouraging viewers not to support Senator Clinton. This assertion was part of a crucial exchange in the argument. To Stewart’s claim that an ad and the film were functionally equivalent, Justice Kennedy was quick to respond that “If we think that … this film is protected, and you say there’s no difference between the film and the ad, then the whole statute must be declared” unconstitutional.
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Conor M. Dowling (Super PAC!: Money, Elections, and Voters after Citizens United (Routledge Research in American Politics and Governance))