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Kai Ryssdal: The Supreme Court is going to hold a rare instant replay tomorrow. Instant at least in judicial time. The justices are going to re-hear a case from last spring, called Citizens United vs. The Federal Election Commission. As you can gather from the name of one of the parties to that case, and from the fact that we're covering it on this program, it's a case about money in politics. About whether companies can buy ads to support or to attack candidates in federal elections. Marketplace's Steve Henn reports.
STEVE HENN: The case the Supreme Court hears tomorrow could remake American elections. But when it began, it looked like a minor fight about a pay-per-view documentary called "Hillary: The Movie."
Dick Morris: Hillary is really the closest thing we have in America to a European Socialist.
Voice Over: If you thought you knew everything about Hillary Clinton, wait until you see the movie.
David Bossie is president of Citizens United, the nonprofit group that made the movie.
DAVID Bossie: We are a political group. We make political films. We make films that are timely.
And Citizens United accepts individual and corporate money to do it. Groups that accept individual contributions can air ads about candidates right up to election day. But corporate money changes that. And that's why Bossie always runs into trouble with the Federal Election Commission, or FEC.
Bossie: We made this movie knowing we were headed to the Supreme Court.
Bossie planned to run his film during Hillary Clinton's campaign. But officials at the FEC thought it was really a 90-minute attack ad. And because Bossie took a little corporate money to make the film, the FEC told him he couldn't run it on pay-per-view or air ads for it on television without facing consequences.
BOSSIE: I would open myself up to five years in prison. That's the penalty. It's not like, oh, they slap you with a little fine. We are talking about criminalizing speech. Not just criminalizing it, but with a massive jail sentence.
So Bossie sued. Michael Toner is a former chair of the FEC. In this case, he filed a brief supporting Citizen's United.
MICHAEL Toner: Congress didn't intend to focus on pay-per-view programming and advertising of this nature.
Originally, that's what this case was about: Can the FEC legally ban a pay-per-view film? But instead of deciding that issue, this spring the Supreme Court surprised everyone by asking for a new hearing addressing a different issue: Do corporations have a first amendment right to political speech? Michael Toner...
Toner: It's a very unusual situation to have the court ordering rehearing in a case, and it usually only occurs when a number of justices are seriously contemplating overturning established precedent.
Toner believes campaign finance laws have been on a collision coarse with the first amendment for years. And this isn't the first time the FEC has interfered with a documentary film.
CLIP FROM FAHRENHEIT 9/11: You had some airplanes authorized at the highest level of our government to pick up Osama bin Laden's family members and transport them out of this country.
Back in the summer of 2004, the FEC began investigating Loinsgate and Michael Moore, asking questions about the promotion of Fahrenheit 9/11, which skewered President George W. Bush. Here's David Bossie.
Bossie: And they actually took their ads off the air, as opposed to fighting it. I found that to be kind of incredible actually. That the biggest distributors, the biggest movie companies in the country, would be afraid of the Federal Election Commission.
The FEC's power has alarmed the ACLU, and the Reporters Committee for the Freedom of the Press, and major unions. They are all backing Bossie in this case.
But campaign finance reform advocates like Trevor Potter say there are half a dozen ways Bossie could have made his movie legally and aired it on TV without breaking campaign finance rules.
Potter is a former chairman of the FEC. Now he runs the nonprofit Campaign Legal Center, which promotes enforcement of campaign finance laws.
TREVOR POTTER: There isn't a problem. This is an artificial crisis created by people who have another agenda.
Potter thinks Citizen's United real agenda has always been to challenge the ban on corporate money in elections and overturn a law that's been on the books for 62 years.
If they win...
FRED WERTHEIMER: In essence, you would be giving corporate America the capacity for dominance of our electoral and our decision-making process.
Fred Wertheimer lobbies for strict campaign finance laws at Democracy 21. Reformers like him point out that if Exxon Mobil had spent just 1 percent of its 2008 profits on political advertising in that year's election, it would have outspent both Obama and McCain combined.
In Washington, I'm Steve Henn for Marketplace.
EDITOR'S NOTE: The original version of this story incorrectly attributed the reference to Exxon Mobil to Fred Wertheimer, instead of Trevor Potter of the Campaign Legal Center.