The Supreme Court heard oral argument in Citizens United v. Federal Election Commission (FEC) on Tuesday March 24. The case challenges FEC electioneering communications rules as applied to a feature-length movie highly critical of Hillary Clinton's presidential candidacy, and ads promoting the movie. According to the New York Times, "it seemed at least possible that five justices were prepared to overturn or significantly limit parts of the court's 2003 decision upholding the McCain-Feingold campaign finance law, which regulates the role of money in politics." The group argues that the film is no different than any other journalistic documentary and therefore not a political communication, and ads for its film Hillary: The Movie should not be subject to donor disclosure requirements.

The Bipartisan Campaign Reform Act (BCRA) of 2002 prohibits corporations, including nonprofits, from airing broadcasts that refer to a federal candidate 30 days before a primary election and 60 days before a general election. This rule was modified after Wisconsin Right to Life v. FEC (WRTL) in 2007. Citizens United, a 501(c)(4) organization, wanted to have the film available for free via a video-on-demand service during the presidential primary campaign and accepted some for-profit corporate funding. In January 2008 a three-judge district court panel ruled that the film was an "electioneering communication." Deputy Solicitor General Malcolm Stewart, representing the FEC, argued that the limits on corporate spending apply regardless of whether or not the broadcast is a 90-second campaign ad or a 90-minute documentary. Citing WRTL, Stewart said the determining factor should be whether the communication is "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Stewart argued that the film is in fact express advocacy because it is "unrelenting in its praise or criticism of a particular candidate."

News reports following oral argument indicates that the Court may create a new exception for disclosure rules, perhaps through a service such as an on-demand channel, since viewers would have to choose to see it. BNA Money and Politics ($$) reports that "observers said after the argument that they were left wondering whether the Court would look for a narrow basis on which to rule."

Chief Justice Roberts asked Stewart if a 500-page book that contained a single statement of support for a candidate would be subject to the same restrictions and Stewart's response was that, yes it could. However, the electioneering communications rules only apply to broadcast, cable, or satellite transmission messages. The court is expected to decide the case by early summer.