UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

CITIZENS UNITED, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civ. No. 07-2240 (ARR, RCL, RWR) 

 ) 

FEDERAL ELECTION COMMISSION, ) MOTION FOR SUMMARY JUDGMENT 

 ) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION FOR SUMMARY JUDGMENT 

The Federal Election Commission respectfully moves this Court for summary judgment 

pursuant to Federal Rule of Civil Procedure 56 on Counts 1, 2, and 3 of Plaintiff’s Amended 

Complaint. A memorandum of law in support of this motion, a statement of material facts not in 

dispute, a statement of genuine issues, and a proposed order are attached pursuant to LCvR 7(h) 

and 56.1. 

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David B. Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: June 6, 2008 (202) 694-1650 

 

Case 1:07-cv-02240-RCL-RWR Document 55 Filed 06/06/2008 Page 1 of 71
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

CITIZENS UNITED, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civ. No. 07-2240 (ARR, RCL, RWR) 

 ) 

FEDERAL ELECTION COMMISSION, ) MEMORANDUM OF LAW 

 ) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM OF LAW IN 

SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO 

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

 FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

June 6, 2008 (202) 694-1650 

 

Case 1:07-cv-02240-RCL-RWR Document 55 Filed 06/06/2008 Page 2 of 71
TABLE OF CONTENTS 

I. BACKGROUND ................................................................................................................ 1 

A. Statutory and Regulatory Background.................................................................... 1 

B. Factual Background ................................................................................................ 3 

1. Citizens United and Related Entities .......................................................... 3 

2. Citizens United’s Film and Advertisements ............................................... 3 

3. Funding of Citizens United’s Electioneering Communications ................. 5 

C. Procedural History .................................................................................................. 5 

II. ARGUMENT...................................................................................................................... 7 

A. Standard of Review................................................................................................. 7 

B. The EC Disclosure Provisions Are Constitutional As Applied to Plaintiff’s 

Advertisements ....................................................................................................... 7 

1. The Disclosure Requirements Are Constitutional on Their Face ............... 7 

2. Disclosure Requirements Are Subject to Intermediate Scrutiny and 

Have Repeatedly Been Upheld Even as to Spending that Cannot 

Constitutionally Be Limited...................................................................... 11 

3. Disclosure Regarding WRTL Ads Furthers Important Government 

Interests..................................................................................................... 18 

a. Providing Information to the Public ............................................. 19 

b. Facilitating Enforcement of Funding Regulations........................ 22 

4. Plaintiff Demonstrates No Constitutional Burden Arising from the 

Disclosure Provisions................................................................................ 25 

a. Plaintiff Presents No Evidence that Its Donors Will Suffer 

Reprisals........................................................................................ 25 

b. Plaintiff Presents No Evidence that the Disclosure 

Requirements Will Chill Its Speech.............................................. 29 

c. The Disclaimer Requirements Impose No Constitutional 

Burdens ......................................................................................... 30 

5. The Important Government Interests Support the Disclosure 

Requirements As Applied to Plaintiff....................................................... 34 

 

Case 1:07-cv-02240-RCL-RWR Document 55 Filed 06/06/2008 Page 3 of 71
C. The EC Disclosure Provisions Are Constitutional As Applied to 

Plaintiff’s Film...................................................................................................... 34 

D. Hillary: The Movie Is the Functional Equivalent of Express Advocacy .............. 34 

1. The EC Funding Restriction Is Constitutional As Applied to ECs that 

Are the Functional Equivalent of Express Advocacy............................... 35 

2. Plaintiff’s Film Is the Functional Equivalent of Express Advocacy......... 37 

3. Plaintiff’s Counterarguments Are Without Merit..................................... 39 

III. CONCLUSION................................................................................................................. 45 

ii

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TABLE OF AUTHORITIES 

Cases 

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)......................................................12-13 

Adventure Commc’ns, Inc. v. Ky. Registry of Election Fin., 191 F.3d 429 (4th Cir. 1999) ......... 23 

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) ...................................................................28-29 

Alaska Right To Life Comm. v. Miles, 441 F.3d 773 (9th Cir. 2006) ..........................11-12, 24-26 

Am. Civil Liberties Union of N.J. v. N.J. Election Law Enforcement Comm’n, 

509 F. Supp. 1123, 1129 (D.N.J. 1981) ........................................................................... 21 

Am. Civil Liberties Union of Nev. v. Heller, 378 F.3d 979 (9th Cir. 2004)............................ 14, 30 

Am. Fed’n of Gov’t Employees, Local 446 v. Nicholson, 475 F.3d 341 (D.C. Cir. 2007) ............. 7 

Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87 (1982)...................................... 25 

Buckley v. Valeo, 424 U.S. 1 (1976)...................................................................................... passim

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999) ............... 11, 14, 16, 20, 30 

Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir. 2003)........................................ 20 

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980)......... 18, 22 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) ............................................15-17 

Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 

236 F.3d 1174 (10th Cir. 2000) ............................................................................ 14, 23, 30 

Citizens United v. FEC, 128 S. Ct. 1732 (2008)............................................................................. 6 

Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008)........................6, 8, 26, 34, 37-39, 42 

Colo. Right To Life Comm., Inc. v. Davidson, 395 F. Supp. 2d 1001 (D. Colo. 2005) .......... 11, 26 

Comm’n on Indep. Coll. & Univ. v. N.Y. Temp. State Comm’n on Regulation of Lobbying, 

534 F. Supp. 489 (N.D.N.Y. 1982) .................................................................................. 21 

Crawford v. Marion County Election Bd., 128 S. Ct. 1610 (2008) ............................................. 31 

Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006) .................................. 11 

Daggett v. Comm’n on Gov’t Ethics & Election Practices, 205 F.3d 445 (1st Cir. 2000)........... 23 

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ........................................................................... 41 

iii

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FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”) ..................15, 17, 23-24, 43 

FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (“WRTL”).............................. passim 

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978)..............................................13-17, 20 

Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457 (11th Cir. 1996) ............................ 21 

GCI Health Care Ctrs., Inc. v. Thompson, 209 F. Supp. 2d 63 (D.D.C. 2002).............................. 7 

Herschaft v. New York City Campaign Fin. Bd., 127 F. Supp. 2d 164 (E.D.N.Y. 2000)........11-12 

In re Grand Jury Proceedings, 776 F.2d 1099 (2d Cir. 1985) ..................................................... 26 

Jones v. Unknown Agents of FEC, 613 F.2d 864 (D.C. Cir. 1979) ....................................... 11, 26 

Kimbell v. Hooper, 665 A.2d 44 (Vt. 1995) ................................................................................. 21 

Majors v. Abell, 361 F.3d 349 (7th Cir. 2004)........................................................................ 14, 30 

Mariani v. United States, 212 F.3d 761 (3d Cir. 2000) (en banc) ............................................... 26 

McConnell v. FEC, 540 U.S. 93 (2003)................................................................................. passim 

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003).............................................. 9, 28, 30, 44 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).........................................13-14, 20, 28 

Meese v. Keene, 481 U.S. 465 (1987)........................................................................................... 32 

Minn. State Ethical Practices Bd. v. Nat’l Rifle Ass’n of Am., 761 F.2d 509 (8th Cir. 1985)...... 21 

N.C. Right to Life, Inc. v. Leake, 524 F.3d 427 (4th Cir. 2008)...............................................12-13 

N.C. Right to Life Comm. Fund for Indep. Political Expenditures v. Leake, 

Nos. 07-1438, 07-1439, 2008 WL 1903473 (4th Cir. May 1, 2008)................................ 12 

NAACP v. Alabama, 357 U.S. 449 (1958).................................................................................... 25 

Nat’l Ass’n of Mfrs. v. Taylor, --- F. Supp. 2d ---, Civ. No. 08-208, 2008 WL 1776997 

(D.D.C. Apr. 18, 2008), appeal docketed, No. 08-5085 (D.C. Cir.)................................. 21 

Nat’l Ass’n of Mfrs. v. Taylor, Civ. No. 08-208, 2008 WL 1390606 (D.D.C. Apr. 11, 2008), 

appeal docketed, No. 08-5085 (D.C. Cir.)...................................................................26-27 

Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104 (2d Cir. 2001)................................................... 33 

R.I. Affiliate Am. Civil Liberties Union, Inc. v. Begin, 431 F. Supp. 2d 227 (D.R.I. 2006) ... 17, 20 

Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440 (2004).................................................... 10 

iv

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United States v. Harriss, 347 U.S. 612 (1954) ...................................................................... 21, 30 

Wash. St. Grange v. Wash. St. Republican Party, 128 S. Ct. 1184 (2008)................................... 31 

Zauderer v. Office of Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S. 626 (1985) ................ 22 

Statutes and Regulations 

2 U.S.C. § 431(11) .......................................................................................................................... 2 

2 U.S.C. § 441d............................................................................................................................... 2 

2 U.S.C. § 441d(a)(3)...................................................................................................................... 2 

2 U.S.C. § 441d(d)(2) ..................................................................................................................... 3 

2 U.S.C. § 434(f)(1) ........................................................................................................................ 2 

2 U.S.C. § 434(f)(2) ........................................................................................................................ 2 

2 U.S.C. § 434(f)(2)(E)................................................................................................................... 2 

2 U.S.C. § 434(f)(3)(A)................................................................................................................. 44 

2 U.S.C. § 434(f)(3)(A)(i)................................................................................................... 1, 40, 44 

2 U.S.C. § 434(f)(3)(B)................................................................................................................. 44 

2 U.S.C. § 441b............................................................................................................................. 35 

2 U.S.C. § 441b(a) ........................................................................................................................ 10 

2 U.S.C. § 441b(b) ...................................................................................................................... 1, 8 

2 U.S.C. § 441b(b)(2) ..................................................................................................................... 2 

11 C.F.R. § 104.20.......................................................................................................................... 2 

11 C.F.R. § 104.20(c)(7)............................................................................................................. 2, 5 

11 C.F.R. § 104.20(c)(9)............................................................................................................. 2, 5 

11 C.F.R. § 110.11.......................................................................................................................... 2 

11 C.F.R. § 110.11(b)(3)................................................................................................................. 2 

11 C.F.R. § 110.11(c)(4)................................................................................................................. 3 

11 C.F.R. § 110.11(c)(4)(iii)(A) ................................................................................................... 33 

11 C.F.R. § 114.15.................................................................................................................... 2, 37 

v

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vi

Bipartisan Campaign Reform Act (“BCRA”), Pub. L. No. 107-155..................................... passim 

Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-55 .......................................... passim

Other Authorities 

Electioneering Communications, 72 Fed. Reg. 72,899 (Dec. 26, 2007) .................................. 5, 27 

FEC Advisory Opinion 1990-13................................................................................................... 27 

FEC Advisory Opinion 1996-46................................................................................................... 27 

FEC Advisory Opinion 2003-02................................................................................................... 27 

Fed. R. Civ. P. 12(b)(6)................................................................................................................. 34 

Fed. R. Civ. P. 56............................................................................................................................ 7 

Case 1:07-cv-02240-RCL-RWR Document 55 Filed 06/06/2008 Page 8 of 71
Defendant Federal Election Commission (“Commission”) submits this memorandum of 

law in support of its Motion for Summary Judgment and in opposition to Plaintiff’s Summary 

Judgment Motion. The Commission should be granted summary judgment as to Plaintiff’s 

claims that its paid broadcast communications involving presidential candidate Senator Hillary 

Clinton, and all similar communications, should be exempt from federal electioneering 

communication disclosure requirements. These disclosure provisions are substantially related to 

important government interests in providing information to the public and facilitating 

enforcement of electioneering communication financing restrictions. Plaintiff provides no 

evidence that it or its donors would be subject to any threats, harassment, or reprisals — or any 

other constitutional burden — if their identities were made known. Summary judgment is 

appropriate on Plaintiff’s challenge to the electioneering communication funding restriction 

because Plaintiff’s film, which is essentially a ninety-minute campaign ‘infomercial’ contending 

that Senator Clinton is unfit to be President, is the functional equivalent of express advocacy that 

she be defeated. 

I. BACKGROUND 

A. Statutory and Regulatory Background 

The Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-55, as amended by the 

Bipartisan Campaign Reform Act (“BCRA”), Pub. L. No. 107-155, defines an “electioneering 

communication” (“EC”) in the context of a presidential candidate as a “broadcast, cable, or 

satellite communication” that refers to a clearly identified candidate and is made within sixty 

days before a general election or thirty days before a primary election or party nominating 

convention. See 2 U.S.C. § 434(f)(3)(A)(i). 

Section 203 of BCRA provides that neither corporations nor labor unions may use their 

general treasury funds to produce or broadcast ECs. See 2 U.S.C. § 441b(a),(b)(2). However, in 

 

Case 1:07-cv-02240-RCL-RWR Document 55 Filed 06/06/2008 Page 9 of 71
FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (“WRTL”), the Supreme Court held 

that this funding restriction may constitutionally be applied only to ECs that are the “functional 

equivalent of express advocacy,” id. at 2667, which the Court’s controlling opinion defined as 

communications that are “susceptible of no reasonable interpretation other than as an appeal to 

vote for or against a specific candidate.” Id. The Commission has promulgated regulations 

codifying the WRTL standard. See 11 C.F.R. § 114.15. 

ECs are subject to reporting requirements, 2 U.S.C. § 434(f)(2); 11 C.F.R. § 104.20, and 

disclaimer requirements, 2 U.S.C. § 441d; 11 C.F.R. § 110.11. The reporting requirements at 

issue in this case provide that any “person” (defined to include any corporation, labor 

organization, or other group, 2 U.S.C. § 431(11)) expending over $10,000 to produce or air an 

EC must file a statement with the Commission. 2 U.S.C. § 434(f)(1)-(2). The statement must 

identify, in relevant part, the person making the EC disbursement and the amount and date of the 

disbursement. When a corporation finances an EC that is permissible under WRTL, the 

corporation must also report “the name and address of each person who made a donation 

aggregating $1,000 or more to the corporation . . . for the purpose of furthering electioneering 

communications.” 11 C.F.R. § 104.20(c)(9). However, if the disbursement is made out of a 

“segregated bank account established to pay for electioneering communications,” the corporation 

making the EC need only identify those individuals who contributed $1,000 or more to the 

account itself. 2 U.S.C. § 434(f)(2)(E); 11 C.F.R. § 104.20(c)(7). 

The EC disclaimer provisions require that a televised EC include on the screen (1) “the 

name and permanent street address, telephone number, or World Wide Web address of the 

person who paid for the communication,” and (2) a statement “that the communication is not 

authorized by any candidate or candidate’s committee.” 2 U.S.C. § 441d(a)(3); 11 C.F.R. 

§ 110.11(b)(3). The EC must also include a statement that the entity funding the EC “is 

2

Case 1:07-cv-02240-RCL-RWR Document 55 Filed 06/06/2008 Page 10 of 71
responsible for the content of this advertising” — this statement must be (1) made orally by a 

representative of the person making the EC, and (2) printed “for a period of at least 4 seconds” 

on at least four percent of the screen. 2 U.S.C. § 441d(d)(2); 11 C.F.R. § 110.11(c)(4). 

B. Factual Background 

1. Citizens United and Related Entities 

Plaintiff Citizens United is a Virginia corporation holding tax-exempt status under 

section 501(c)(4) of the Internal Revenue Code. (Def.’s Statement of Material Facts as to Which 

There Is No Genuine Dispute (“Def.’s Facts”) ¶ 1.) In addition to this corporation, Citizens 

United operates Citizens United Political Victory Fund (“CU-PVF”), which is a political 

committee (or “separate segregated fund”) and is registered with the Commission as such. (Id. 

¶ 19.) As a political committee, CU-PVF files with the Commission monthly, publicly available 

reports identifying, inter alia, the name and address of each person who has donated $200 or 

more to CU-PVF in the calendar year of the report. (Id. ¶ 20.) Since 1994, CU-PVF has filed 

approximately 160 reports, identifying a total of approximately 1,214 donations. (Id. ¶ 21.) 

Citizens United also operates The Presidential Coalition, LLC, and 2007 Conservative 

Victory Committee, which are entities holding tax-exempt status under section 527 of the 

Internal Revenue Code. (Id. ¶ 22.) As “527” organizations, these entities file each year with the 

Internal Revenue Service two to six publicly available reports listing, inter alia, the name, 

address, occupation, and employer of each person who has donated $200 or more to the 

organization in that calendar year. (Id. ¶ 23.) Since 2005, The Presidential Coalition has filed 

ten reports, identifying a total of approximately 11,500 donations. (Id. ¶ 24.) 

2. Citizens United’s Film and Advertisements 

Plaintiff has produced a film, entitled Hillary: The Movie. (Id. ¶ 3.) This film focuses on 

the ongoing presidential election, specifically Senator Hillary Clinton’s candidacy for President 

3

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of the United States. (Id. ¶ 4.) Hillary: The Movie is devoted to criticizing Senator Clinton’s 

character and arguing that she lacks the qualifications and is not fit to be elected President. (Id. 

¶ 5.) Hillary: The Movie does not focus on legislative issues, and it does not take a position on 

an issue, exhort the public to adopt that position, and urge the public to contact public officials 

with respect to the matter; instead, the only focuses of the film are Senator Clinton’s character 

and fitness for office and her actions in relation to certain controversies during Bill Clinton’s 

presidency. (Id. ¶ 6.) The film mentions legislative issues only in the context of critiquing 

Senator Clinton’s character and her fitness for the presidency. (Id.) Plaintiff identifies itself as 

being involved with the film by including Citizens United’s name and logo at the beginning of 

the movie. (Id. ¶ 3.) 

Hillary: The Movie is available for purchase by the general public on DVD, and it has 

been exhibited in several movie theaters. (Id. ¶ 7.) On December 20, 2007, Plaintiff received a 

solicitation to pay to have Hillary: The Movie distributed for four weeks through a nationwide 

cable-television video-on-demand system. (Id. ¶ 9.)1 Pursuant to this solicitation, the film 

would be broadcast on “Elections ’08,” which bills itself as a “breakthrough platform [that] 

allows you to speak directly to voters — 24/7 — in their own living rooms. By crafting and 

controlling your own long-form campaign message, you reach voters with no media dilution or 

bias.” (Id. ¶ 10.) Plaintiff wishes to pay to distribute its film through this medium within the 

thirty-day period before the Democratic national convention. (Id. ¶ 11.) 

Plaintiff also wishes to promote its film through television advertisements. (Id. ¶ 13.) 

These advertisements would mention Senator Clinton and would air on nationwide cable and 

network television within the thirty-day period before the Democratic national convention. (Id. 

 

1

 Because Plaintiff has insisted that the terms of the December 2007 offer remain 

confidential (see First Supp. to Pl.’s Resp. to FEC’s First Interrogs. at 5-6 (Def.’s Exh. 1)), this 

offer is being filed under seal. 

4

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¶ 14.) Plaintiff has stated that it intends to fund its advertisements from a bank account 

consisting solely of donations made to Plaintiff for the purpose of furthering the production or 

distribution of electioneering communications. (Id. ¶ 16.)2

Four days after Senator Barack Obama won the Iowa presidential caucuses, Plaintiff 

announced its intent to produce and broadcast a “documentary” film about Senator Obama, as 

well as television advertising for that film. (Id. ¶ 18.) 

3. Funding of Citizens United’s Electioneering Communications 

Since December 2006, twenty-eight individuals, two for-profit corporations, and three 

other entities have donated $1,000 or more to Plaintiff for the purpose of furthering the 

production or distribution of Plaintiff’s electioneering communications. (Id. ¶ 17.) Ten of the 

twenty-eight individuals have been publicly identified in IRS filings as donors to one of 

Plaintiff’s affiliated 527 organizations, The Presidential Coalition. (Id. ¶ 25.) In addition, one 

individual and two other entities, who have donated a total of $173,500 to Plaintiff for the 

purpose of furthering Plaintiff’s electioneering communications, are identified in the credits of 

Hillary: The Movie. (Id. ¶ 26.) 

C. Procedural History 

Plaintiff’s Amended Complaint asserts five claims, each seeking declaratory and 

injunctive relief. Counts 1 and 2 allege that the EC disclosure requirements are unconstitutional 

as applied to Plaintiff’s ads, to all other ads exempt from the EC funding restriction under WRTL, 

 

2

 Throughout this action, Plaintiff has asserted that it would be required to disclose all of 

its income, including income from the sale of its products. (See, e.g., Pl.’s Mem. in Support of 

Summ. J. Mot. at 33 n.24.) That assertion is incorrect; corporations disclosing ECs are not 

required to report income from commercial transactions or any other income besides donations 

earmarked for ECs. See Electioneering Communications, 72 Fed. Reg. 72,899, 72,911 (Dec. 26, 

2007); 11 C.F.R. § 104.20(c)(9). Plaintiff has also asserted that it intends to utilize the 

“segregated bank account” option to reduce its disclosure obligations, but, because nonearmarked general treasury funds are not subject to disclosure, Plaintiff’s intended use of the 

segregated account would likely increase Plaintiff’s reporting obligations. See id. 

5

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and to Plaintiff’s movie. (Am. Compl. ¶¶ 34-39.) Counts 3 and 4 allege that the corporate 

funding restriction is unconstitutional as applied to Plaintiff’s movie and “Questions” ad, 

respectively. (Id. ¶¶ 40-45.) Finally, Count 5 alleges that the corporate funding restriction is 

unconstitutional on its face. (Id. ¶¶ 46-48.) 

Contemporaneously with the filing of its original and amended complaints, Plaintiff 

sought preliminary injunctions against the Commission’s enforcement of the EC disclosure 

requirements and funding restriction. This Court denied Plaintiff’s motions, holding, inter alia, 

that Plaintiff was unlikely to prevail on the merits of its claims. See Citizens United v. FEC, 

530 F. Supp. 2d 274, 280-81 (D.D.C. 2008). Plaintiff appealed directly to the Supreme Court the 

denial of a preliminary injunction as to Count 1. On March 24, 2008, the Supreme Count 

dismissed the appeal for lack of jurisdiction. Citizens United v. FEC, 128 S. Ct. 1732 (2008). 

On February 11, 2008, the Commission moved to dismiss Count 3 for failure to state a 

claim on which relief can be granted and Count 4 for lack of subject-matter jurisdiction. Plaintiff 

agrees that the Court lacks jurisdiction over Count 4, but Plaintiff opposes dismissal of Count 3. 

The Commission’s Motion to Dismiss Counts 3 and 4 remains pending before the Court. 

On May 23, 2008, the Court entered an order dismissing Count 5 pursuant to a stipulation 

of the parties.3

 

3

 The Commission notes that it was unaware of Plaintiff’s intent to abandon Count 5 until 

Plaintiff filed its motion for summary judgment. (See Pl.’s Summ. J. Mot. at 1-2.) If the 

Commission had been informed of Plaintiff’s intention earlier (such as during the parties’ 

scheduling conference in March 2008), the Commission would have consented to significantly 

shorter discovery and briefing periods and could have avoided unnecessary affirmative case 

preparation regarding Plaintiff’s facial challenge to the EC funding restriction. (See Joint Rep. of 

Parties Pursuant to LCvR 16.3(d) (Docket No. 47) at ¶ 8(b) (“The Commission also requires time 

to develop a factual record regarding Plaintiff’s facial challenge to the electioneering 

communication financing restriction and possibly to conduct some discovery regarding that 

claim, potentially including third-party and/or expert discovery.”). 

6

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II. ARGUMENT 

A. Standard of Review 

“[I]n ruling on cross-motions for summary judgment, the court shall grant summary 

judgment only if one of the moving parties is entitled to judgment as a matter of law upon 

material facts that are not genuinely disputed.” GCI Health Care Ctrs., Inc. v. Thompson, 209 F. 

Supp. 2d 63, 67 (D.D.C. 2002) (citations omitted); Am. Fed’n of Gov’t Employees, Local 446 v. 

Nicholson, 475 F.3d 341, 342 (D.C. Cir. 2007) (“[S]ummary judgment is appropriate if there is 

no genuine issue as to any material fact and if either [cross-movant] is entitled to a judgment as a 

matter of law.”); see Fed. R. Civ. P. 56. 

B. The EC Disclosure Provisions Are Constitutional As Applied to Plaintiff’s 

Advertisements 

1. The Disclosure Requirements Are Constitutional on Their Face 

In McConnell v. FEC, 540 U.S. 93 (2003), the Supreme Court upheld the facial 

constitutionality of each of the EC disclosure provisions at issue here. Id. at 194-99, 230-31. 

Regarding the reporting requirements, the Court held that they are consistent with the First 

Amendment because “important state interests,” namely “providing the electorate with 

information, deterring actual corruption and avoiding any appearance thereof, and gathering the 

data necessary to enforce more substantive electioneering restrictions . . . amply support[ ] 

application of [the] disclosure requirements to the entire range of electioneering 

communications.” Id. at 196 (internal quotation marks omitted). The Court acknowledged that 

there may be limited instances in which the First Amendment burdens of disclosure might 

outweigh these government interests as to particular organizations, and the Court explained how 

the lower courts should decide such cases, but left resolution of them to future as-applied 

challenges. Id. at 197-99; see infra Part II.B.4 (explaining why Plaintiff does not meet 

7

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McConnell’s requirements for as-applied challenges).4

 Five Justices joined this opinion, and 

three additional Justices agreed that the reporting requirements were constitutional because they 

“substantially relate” to the informational interest cited by the majority. Id. at 321 (opinion of 

Kennedy, J.). Regarding the disclaimer requirements, Chief Justice Rehnquist, writing for eight 

Justices, upheld the provisions as bearing “a sufficient relationship to the important 

governmental interest of ‘shed[ding] the light of publicity’ on campaign financing.” Id. at 231 

(quoting Buckley v. Valeo, 424 U.S. 1, 81 (1976)). 

Four years later, in WRTL, the Supreme Court again addressed BCRA’s EC provisions. 

The subject of that case, however, was not disclosure, but funding — specifically, it was an asapplied challenge to § 441b(b)(2)’s prohibition on corporate funding of ECs, which McConnell

had upheld on its face. McConnell, 540 U.S. at 206-09. In fact, the plaintiff in WRTL had 

explicitly disavowed any challenge to the disclosure provisions. Wisconsin Right to Life, Inc. v. 

FEC, Civ. No. 04-1260, Verified Compl. for Declaratory and Injunctive Relief ¶ 36 (D.D.C. July 

28, 2004) (“WRTL does not challenge the reporting and disclaimer requirements for 

electioneering communications, only the prohibition on using its corporate funds for its grassroots lobbying advertisements.”).5

 The Court’s controlling opinion (written by Chief Justice 

 

4

 Contrary to Plaintiff’s assertion (Pl.’s Mem. in Support of Summ. J. Mot. at 23-25), the 

Commission has never argued that McConnell’s facial holding precludes the possibility of asapplied challenges to the disclosure statutes, nor did this Court hold that such actions are 

precluded. See Citizens United, 530 F. Supp. 2d at 281 (noting that “[t]he McConnell Court did 

suggest one circumstance in which the requirement to disclose donors might be unconstitutional 

as-applied”). 

5

 WRTL further informed the Court that “[b]ecause WRTL does not challenge the 

disclaimer and disclosure requirements, there will be no ads done under misleading names. 

There will continue to be full disclosure of all electioneering communications, both as to 

disclaimers and public reports. The whole system will be transparent. With all this information, 

it will then be up to the people to decide how to respond to the call for grassroots lobbying on a 

particular governmental issue.” Br. for Appellee, FEC v. Wisconsin Right to Life, Inc., S. Ct. 

Nos. 06-969, 06-970, at 49 (Mar. 21, 2007), available at 

http://www.jamesmadisoncenter.org/WI/BriefforAppellee032207.pdf (emphasis added). 

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Roberts and joined by Justice Alito) held that corporations may fund an EC unless the 

communication is the functional equivalent of express advocacy, which the Chief Justice defined 

as a communication that “is susceptible of no reasonable interpretation other than as an appeal to 

vote for or against a specific candidate.” WRTL, 127 S. Ct. at 2667. This holding thereby 

created two categories of communications that meet the statutory definition of an EC: (1) ECs 

that are the functional equivalent of express advocacy, which are subject to the corporate funding 

restriction; and (2) ECs that are susceptible of an interpretation other than as an appeal to vote 

for or against a specific candidate (hereinafter “WRTL ads”), which may be financed with the 

general treasury funds of corporations or unions. 

Contrary to Plaintiff’s contention (Pl.’s Mem. in Support of Summ. J. Mot. (“Pl.’s 

Mem.”) at 14-15), the Court did not hold that all WRTL ads are “issue speech”: The Chief 

Justice explicitly noted that the distinction between campaign and issue speech “dissolve[s] in 

practical application,” and held that funding limitations act to “suppress[ ]” speech susceptible of 

multiple interpretations, contrary to the First Amendment. Id. at 2669 (internal quotation marks 

omitted); infra Part II.D.3 (demonstrating that inclusion of purported political discussions in 

Plaintiff’s film does not render film “issue speech”). WRTL did not decide — either explicitly or 

tacitly — the question of whether WRTL ads may constitutionally be subject to BCRA’s EC 

disclosure provisions, which, the Court had previously held, do not suppress speech. See

McConnell, 540 U.S. at 197-99, 201 (“[FECA’s] disclosure requirements are constitutional 

because they ‘d[o] not prevent anyone from speaking.’”) (quoting McConnell v. FEC, 251 F. 

Supp. 2d 176, 241 (D.D.C. 2003)). 

Although WRTL did not challenge any disclosure provisions, and although disclosure is 

not mentioned anywhere in the WRTL opinion, Plaintiff now attempts to construe the decision as 

having addressed the issue and decided that all WRTL ads are exempt from all “regulation,” 

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including both financing restrictions and disclosure requirements. (Pl.’s Mem. at 1, 18-19 & 

n.9.) Plaintiff’s argument must fail, for it misinterprets the meaning of the WRTL language on 

which it relies. The decision in that case turned, in part, on the Commission’s argument that the 

EC financing restriction was merely a funding regulation, not a speech prohibition. See Br. for 

Appellant FEC, FEC v. Wisconsin Right to Life, Inc., S. Ct. Nos. 06-969, 06-970, at 7 (Feb. 23, 

2007), available at http://www.usdoj.gov/osg/briefs/2006/3mer/2mer/2006-0969.mer.aa.pdf 

(arguing that McConnell held financing restriction to be regulation rather than “complete ban”).6

 

The Court rejected the Commission’s distinction, using the term “regulation” to make clear that 

the financing provision was unconstitutional as applied to certain ads even though it was not an 

outright prohibition. See WRTL, 127 S. Ct. at 2671 n.9 (rejecting distinction). But the Court 

nowhere suggested that disclosure was also unconstitutional or that its use of the word 

“regulation” encompassed disclosure provisions of any kind. Indeed, if the Court had been using 

the word “regulation” as imagined by Plaintiff, it was tacitly deciding an issue that was not 

presented in the case. It defies logic to believe that the Court would issue such a momentous 

ruling — striking down an act of Congress and significantly limiting McConnell — sub silentio. 

See Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 449 n.4 (2004) (noting that Court is 

unlikely to overrule its own recent decisions sub silentio). Thus, there is no reasonable basis for 

Plaintiff’s claim that the term “regulation,” as used in WRTL, includes disclosure.7

 

6

 McConnell had explained that “[b]ecause corporations can still fund electioneering 

communications with PAC money [raised in a separate segregated fund, 2 U.S.C. § 441b(b)], it 

is ‘simply wrong’ to view the provision as a ‘complete ban’ on expression rather than a 

regulation.” 540 U.S. at 204 (citation omitted). 

7

 To the extent that Plaintiff’s motion can be read to argue that the constitutional 

limitations on financing and disclosure provisions are necessarily coterminous — i.e., that WRTL

ads must be exempt from disclosure because they are exempt from funding restrictions — such 

an argument is plainly contrary to law. See infra Part II.B.2 (collecting cases in which courts 

have struck down financing restrictions but upheld disclosure provisions). 

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In sum, McConnell upheld the EC disclosure provisions on their face, and nothing in 

WRTL stands to the contrary. It is true, as Plaintiff contends (Pl.’s Mem. at 24-25), that the 

Court’s “rejection of [the] facial challenge to the requirement to disclose individual donors [did] 

not foreclose possible future challenges to particular applications of that requirement.” 

McConnell, 540 U.S. at 199. However, McConnell also reiterated the burden of proof that a 

plaintiff must meet to succeed in such a challenge, and noted that the plaintiffs — one of which 

was Citizens United — had not presented enough specific evidence to meet that burden. See 

infra Part II.B.4. Thus, Citizens United must show undisputed evidence sufficient to meet the 

as-applied burden defined in McConnell and earlier cases. For the reasons discussed below, 

Plaintiff plainly cannot meet this burden. 

2. Disclosure Requirements Are Subject to Intermediate Scrutiny and Have 

Repeatedly Been Upheld Even as to Spending that Cannot Constitutionally 

Be Limited 

It is well established that First Amendment challenges to disclosure statutes are analyzed 

under an “exacting scrutiny” standard, which requires that the compelled disclosure bear a 

“substantial relation” to an important government interest. Buckley, 424 U.S. at 64, 66, 75; see 

also McConnell, 540 U.S. at 196, 231; Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 

182, 202 (1999) (“In [Buckley], we stated that ‘exacting scrutiny’ is necessary when compelled 

disclosure of campaign-related payments is at issue [and] upheld, as substantially related to 

important governmental interests, the recordkeeping, reporting, and disclosure provisions of 

[FECA] . . . .”); Alaska Right To Life Comm. v. Miles, 441 F.3d 773, 788 (9th Cir. 2006) 

(describing standard applied in McConnell); Ctr. for Individual Freedom v. Carmouche, 449 

F.3d 655, 663 (5th Cir. 2006); Jones v. Unknown Agents of FEC, 613 F.2d 864, 875 (D.C. Cir. 

1979) (citing Buckley); Colo. Right To Life Comm., Inc. v. Davidson, 395 F. Supp. 2d 1001, 

1015 (D. Colo. 2005) (citing Buckley); Herschaft v. New York City Campaign Fin. Bd., 127 F. 

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Supp. 2d 164, 167 (E.D.N.Y. 2000) (“[T]he government’s interests must be ‘sufficiently 

important to outweigh the possibility of infringement’ and there must be a ‘relevant correlation’ 

or ‘substantial relation’ between the governmental interests and the information required to be 

disclosed.”) (quoting Buckley). As the Fourth Circuit recently held, in upholding the 

constitutionality of state judicial-election disclosure laws, 

Reporting and disclosure requirements in the campaign finance realm 

“must survive exacting scrutiny.” Buckley, 424 U.S. at 64. The plaintiffs 

argue that “exacting scrutiny” in this context is equivalent to strict scrutiny 

(requiring narrow tailoring to a compelling state interest), but this 

argument is inconsistent with Buckley and subsequent cases. In Buckley

the Supreme Court held that there must be “a ‘relevant correlation’ or 

‘substantial relation’ between the governmental interest and the 

information required to be disclosed.” 424 U.S. at 64. In applying this 

test, the Court upheld a FECA disclosure requirement that bore a 

“sufficient relationship to a substantial governmental interest.” 424 U.S. 

at 80. Likewise, the Court recently upheld BCRA’s disclosure 

requirements based on its determination that the requirements advanced 

“important state interests.” McConnell, 540 U.S. at 93. 

N.C. Right to Life Comm. Fund for Indep. Political Expenditures v. Leake, 524 F.3d 427, 439 

(4th Cir. 2008).8

 The Ninth Circuit has also made clear that McConnell “did not apply ‘strict 

scrutiny’ or require a ‘compelling state interest.’ Rather, the Court upheld the disclosure 

requirements as supported merely by ‘important state interests.’” Alaska Right To Life, 441 F.3d 

at 788 (internal citations omitted). Thus, “exacting scrutiny,” as courts apply it to disclosure 

statutes, is identical to the constitutional standard more commonly known as intermediate 

scrutiny. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 220 (1995) (noting that 

 

8

 Plaintiff discusses at some length (Pl.’s Mem. at 20-22) a companion case, N.C. Right to 

Life, Inc. v. Leake, Nos. 07-1438, 07-1439, 2008 WL 1903462 (4th Cir. May 1, 2008). The 

provisions at issue in the case Plaintiff cites, however, implicated mandatory financing 

restrictions such as independent expenditure and contribution limits for groups that met the 

definition of “political committee.” See id. In contrast, the Leake opinion we cite above 

specifically and thoroughly examined disclosure requirements for campaign spending free from 

any mandatory financing restrictions. 

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intermediate scrutiny standard requires statute to be “substantially related to the achievement of 

an important governmental objective”) (internal quotation marks omitted). 

Plaintiff nonetheless argues that disclosure provisions are subject to “‘exacting scrutiny’ 

(i.e., strict scrutiny)” (Pl.’s Mem. at 9, 22), and that, “regardless of the level of scrutiny,” the first 

constitutional inquiry in the disclosure context must be whether the activity giving rise to the 

disclosure requirement is “unambiguously-campaign-related.” (Id. at 17.) Neither of these 

assertions has any basis in law. 

First, as discussed above, Buckley’s “exacting scrutiny” standard, as applied to disclosure

requirements, was intermediate, not strict, scrutiny. Buckley, 424 U.S. at 64; Leake, 524 F.3d at 

439. Plaintiff’s contrary argument cites to Buckley’s use of the phrase “exacting scrutiny” in 

striking down FECA’s expenditure limits, to which the Court applied strict scrutiny. See

Buckley, 424 U.S. at 44-45. But Buckley explicitly distinguished the scrutiny applicable to such 

“limitations on core First Amendment rights of political expression,” id., from infringements on 

the “privacy of association” at issue in disclosure requirements. Id. at 64. In the context of 

potential associational burdens arising from disclosure requirements, Buckley specifically 

defined exacting scrutiny as requiring only “a relevant correlation or substantial relation between 

the governmental interest and the information required to be disclosed.” Id. at 64 (quotation 

marks omitted). Furthermore, to the extent that Buckley’s internally differing uses of the phrase 

“exacting scrutiny” caused any confusion, McConnell expressly stated that the proper standard 

for disclosure obligations is the intermediate “important state interests” test. 540 U.S. at 196. 

Neither Buckley nor McConnell applied strict scrutiny to any of FECA’s disclosure requirements. 

Plaintiff also cites WRTL, 127 S. Ct. at 2669 n.7, First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765, 786 (1978), and McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995), for the 

proposition that strict scrutiny applies to disclosure requirements. (Pl.’s Mem. at 22.) But the 

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footnote in WRTL merely cited Buckley’s application of strict scrutiny to expenditure limits, 

WRTL, 127 S. Ct. at 2669 n.7 (citing Buckley, 424 U.S. at 44), and Bellotti applied strict scrutiny 

to “a prohibition . . . directed at speech itself,” Bellotti, 435 U.S. at 786 (striking down 

expenditure limit). Neither case applied strict scrutiny to any disclosure provision. McIntyre

applied strict scrutiny to a statute requiring identification of pamphlet distributors, but the Court 

explicitly distinguished this type of “anonymous campaign literature” from the financial 

disclosures at issue in Buckley. McIntyre, 514 U.S. at 353; see also id. at 379 (Scalia, J., 

dissenting) (noting that Court’s First Amendment cases do not “acknowledge any general right to 

anonymity . . . . Rather, they recognize[ ] a right to an exemption from otherwise valid 

disclosure requirements on the part of someone who could show a ‘reasonable probability’ that 

the compelled disclosure would result in ‘threats, harassment, or reprisals from either 

Government officials or private parties’”) (quoting Buckley; emphasis in original). Many courts 

have recognized this distinction between mandatory in-person identification, which may give rise 

to strict scrutiny, and requirements to make after-the-fact filings with a government agency, 

which are reviewed under the lower standard. See Buckley v. Am. Constitutional Law Found., 

525 U.S. at 198 (striking down statute requiring petition-circulators to wear name badges but 

upholding statute requiring them to file affidavits identifying themselves); Majors v. Abell, 361 

F.3d 349, 353-54 (7th Cir. 2004) (distinguishing McIntyre); Am. Civil Liberties Union of Nev. v. 

Heller, 378 F.3d 979, 1002 (9th Cir. 2004); Citizens for Responsible Gov’t State Political Action 

Comm. v. Davidson, 236 F.3d 1174, 1199 (10th Cir. 2000). Thus, there is no support for 

Plaintiff’s claim that strict scrutiny applies to statutes requiring the filing of disclosure 

statements. 

Throughout its brief, Plaintiff also argues that the First Amendment always prohibits the 

government from mandating disclosure regarding advertising, unless the speech contains specific 

14

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words unambiguously advocating the election or defeat of candidates. This assertion severely 

misinterprets Buckley and its progeny. Plaintiff distorts Buckley by contending that the decision 

enshrined the phrase “unambiguously-campaign-related” as a stand-alone constitutional “test” or 

“requirement” (Pl.’s Mem. at 17) that all disclosure statutes must pass. On the contrary, this 

phrase was merely part of the Court’s explanation that its statutory construction of “expenditure” 

in one part of the Act’s disclosure provisions would resolve “serious problems of vagueness,” 

Buckley, 424 U.S. at 76 — a problem that the Court has explicitly noted, and Plaintiff has 

conceded (Pl.’s Mem. at 20 n.22), does not arise in the context of BCRA’s bright-line EC 

definition. McConnell, 540 U.S. at 194 (“[W]e observe that [BCRA’s] definition of 

‘electioneering communication’ raises none of the vagueness concerns that drove our analysis in 

Buckley.”). Indeed, to the extent that Buckley caused any confusion on this point, the Court put 

the question to rest in McConnell, which, in upholding BCRA’s EC provisions, noted that 

Buckley’s “express advocacy limitation, in both the expenditure and the disclosure contexts, was 

the product of statutory interpretation rather than a constitutional command.” McConnell, 540 

U.S. at 191-92. Thus, Buckley’s interpretation of the term independent “expenditure” (when 

made by individuals or groups other than political committees) to mean spending that is 

“unambiguously related” to the campaign of a candidate, 424 U.S. at 79-80, has no bearing on 

the electioneering communication disclosure provisions; as the McConnell Court has explained, 

the definition of that term requires no narrowing construction to avoid vagueness. 

Plaintiff’s misinterpretation of Buckley is further demonstrated by the Supreme Court’s 

subsequent cases addressing disclosure. Plaintiff cites FEC v. Mass. Citizens for Life, Inc., 479 

U.S. 238 (1986) (“MCFL”), Bellotti, and Citizens Against Rent Control v. Berkeley, 454 U.S. 290 

(1981), for the proposition that “no case authorizes disclosure of communications that are not 

‘unambiguously campaign related’” (Pl.’s Mem. at 11) — or, as Plaintiff elaborates, 

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“unambiguously related to the campaign of a particular federal candidate.” (Pl.’s Mem. at 1, 8.) 

This assertion is manifestly false, because Bellotti and Citizens Against Rent Control had nothing 

whatsoever to do with any candidate campaign; they concerned pure issue speech regarding 

citizen initiatives and referenda. See Bellotti, 435 U.S. at 790 (distinguishing referendum from 

candidate campaign); Citizens Against Rent Control, 454 U.S. at 297 (same). Importantly, these 

non-campaign cases nonetheless spoke with approval of mandatory financial disclosure. Bellotti, 

435 U.S. at 791-92 n.32 (“Identification of the source of advertising [for or against initiatives] 

may be required as a means of disclosure, so that the people will be able to evaluate the 

arguments to which they are being subjected.”); Citizens Against Rent Control, 454 U.S. at 298-

99 (“[T]here is no risk that the Berkeley voters will be in doubt as to the identity of those whose 

money supports or opposes a given ballot measure since contributors must make their identities 

known under . . . the ordinance, which requires publication of lists of contributors in advance of 

the voting.”); see also Buckley v. Am. Constitutional Law Found., 525 U.S. at 204 (upholding 

mandatory disclosure of donations made to organizations to pay ballot-initiative petition 

circulators). 

Plaintiff similarly asserts that Citizens Against Rent Control and Bellotti must have 

applied the “unambiguously campaign related” requirement because the former “dealt with 

contributions to a campaign committee” and the latter “construed contributions and 

expenditures,” and because Buckley had previously construed those terms. (See Pl.’s Mem. at 12 

(emphasis and quotation marks omitted).) But this is nothing more than obfuscation: Citizens 

Against Rent Control did not involve contributions that would be spent to affect candidate

campaigns; Bellotti did not involve expenditures in candidate elections; Buckley narrowly 

construed the term “expenditure” in certain contexts due to vagueness concerns; and neither 

Citizens Against Rent Control nor Bellotti even mentioned Buckley’s construction, much less 

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applied it to ballot initiative funding issues. See Bellotti, 435 U.S. at 775-95 (constitutional 

analysis); Citizens Against Rent Control, 454 U.S. at 294-300 (same).9 Thus, there simply is no 

connection between Buckley’s narrowing of FECA and the holdings of these other cases, much 

less any plausible argument that Bellotti or Citizens Against Rent Control implicitly adopted an 

“unambiguously campaign related” test or otherwise subjected disclosure statutes to any such 

standard. 

It is equally nonsensical for Plaintiff to assert that MCFL “recognized the 

unambiguously-campaign-related requirement” (Pl.’s Mem. at 10) as a broad principle applicable 

to disclosure requirements, because the issue in that case was FECA’s limits on corporate 

independent expenditures, and the communications at issue expressly advocated for and against 

specific candidates. MCFL, 479 U.S. at 249-50. Indeed, in finding those funding limits 

unconstitutional as applied to MCFL, the Court noted the benefits of mandatory disclosure, even 

when the underlying expenditures to be disclosed were constitutionally exempt from limitation. 

Id. at 262 (striking down independent expenditure restrictions on certain non-profit organizations 

in part because “reporting obligations provide precisely the information necessary to monitor 

MCFL’s independent spending activity”); see also Buckley, 424 U.S. at 44, 80 (striking 

expenditure limits but upholding mandatory disclosure of expenditures); R.I. Affiliate Am. Civil 

Liberties Union, Inc. v. Begin, 431 F. Supp. 2d 227, 239 (D.R.I. 2006) (citing MCFL and 

Berkeley as cases in which Supreme Court found funding restrictions unnecessary in light of 

disclosure requirements). Accordingly, MCFL stands directly contrary to Plaintiff’s argument 

that WRTL’s holding regarding EC funding must be extended to the EC disclosure requirements. 

 

9

 In fact, the only times the word “campaign” appears in the majority opinion in Bellotti are 

when the Court (a) distinguishes referenda from candidate campaigns, 435 U.S. at 788 n.26, and 

(b) notes the continued applicability of disclosure provisions. Id. at 792 n.32. 

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Finally, in McConnell, the Court recognized that the statutory EC definition encompassed 

issue speech, 540 U.S. at 207 (discussing inclusion of some “pure issue ads” within EC 

definition), but the Court nonetheless facially upheld the disclosure requirements as “to the entire 

range of ‘electioneering communications.’” Id. at 196. This necessarily means that disclosure is 

not constitutionally limited to “unambiguously campaign related” advertising, for such a 

limitation would be impossible to reconcile with McConnell’s facial upholding of the disclosure 

provisions as “to the entire range” of ECs.10

In sum, Plaintiff’s proposition that the Constitution prohibits disclosure requirements that 

are not “unambiguously campaign related” is unsupported in the Supreme Court’s disclosure 

jurisprudence; the proper inquiry in this action is whether the EC disclosure provisions as applied 

to WRTL ads bear a substantial relationship to an important government interest.11

3. Disclosure Regarding WRTL Ads Furthers Important Government 

Interests 

The important government interests relating to disclosure of political activity are well 

recognized: “[D]isclosure serves informational functions, as well as the prevention of corruption 

and the enforcement of the contribution limitations.” Buckley, 424 U.S. at 83; see also 

McConnell, 540 U.S. at 196. More specifically, courts have identified disclosure-related 

 

10 The Commission again stresses, see supra p. 8 n.4, that it is not arguing that McConnell’s 

facial holding precludes as-applied challenges to the disclosure provisions. But the holding does 

belie Plaintiff’s argument that the Court has categorically excluded from disclosure requirements 

all ECs that are not the functional equivalent of candidate campaign ads. 

11 Plaintiff also contends that its ads are commercial speech, i.e., advertising the sale of a 

product. (See, e.g., Plaintiff’s Statement of Undisputed Material Facts (“Pl.’s Facts”) ¶¶ 32 

(“[The] Ads will promote showings of Hillary: The Movie in theaters and sales of Hillary in 

DVD format . . . .”), 33 (stating that ads will be timed “to maximiz[e] box office, cable ondemand, and DVD sales”).) Even if this contention is accurate, mandatory disclosure of 

commercial speech is subject to even fewer constitutional restrictions than those governing 

disclosure of political advertising. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of 

N.Y., 447 U.S. 557, 562-63 (1980) (“The Constitution . . . accords a lesser protection to 

commercial speech than to other constitutionally guaranteed expression.”). 

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government interests in (a) encouraging maximum transparency in political activity by providing 

financial information to the public, (b) facilitating enforcement of substantive funding 

regulations, and (c) deterring actual or apparent corruption.12 The informational and 

enforcement interests apply with full force to WRTL ads, as discussed below. 

a. Providing Information to the Public 

The government’s interest in providing information to the public was recognized in 

Buckley, which held the interest sufficient to justify mandatory disclosure of campaign financing 

and express advocacy. Buckley, 424 U.S. at 66-68, 81-82 (“[T]he disclosure requirement ... [is] 

a minimally restrictive method of furthering First Amendment values by opening the basic 

processes of our federal election system to public view.”). McConnell then applied Buckley’s 

holding regarding this interest to uphold the EC disclosure provisions. McConnell, 540 U.S. at 

196, 200-01; see also id. at 237-43 (upholding broadcast station record-keeping requirements in 

part to “help both the regulatory agencies and the public ... determine the amount of money that 

individuals or groups, supporters or opponents, intend to spend to help elect a particular 

candidate”). McConnell also quoted with approval the lower court’s finding that the corporate 

plaintiffs challenging the disclosure provisions purported to seek “wide-open” speech, yet 

“ignore[d] the competing First Amendment interests of individual citizens seeking to make 

informed choices in the political marketplace.” Id. at 196-97. Plaintiff engages in no analysis of 

Buckley or McConnell’s holdings on these points, instead resting its entire argument again on the 

 

12 Regarding communications that meet the statutory definition of ECs, the Court in WRTL

held that the anti-corruption interest did not apply to communications other than express 

advocacy or its functional equivalent. See WRTL, 127 S. Ct. at 2672. Thus, because Plaintiff’s 

planned ads are not the functional equivalent of express advocacy, the Commission is not relying 

upon an anti-corruption interest to justify disclosure requirements as applied to Plaintiff’s WRTL

ads. 

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premise that the government’s only interest is in disclosure of “unambiguously campaign 

related” speech. Once more, however, Plaintiff’s assertion is contrary to law. 

The government’s informational interest has repeatedly been found to justify mandatory 

disclosure relating to two different forms of “pure” issue advocacy. First, the informational 

interest has been recognized extensively in the context of issue advocacy regarding ballot 

initiatives. See, e.g., Buckley v. Am. Constitutional Law Found., 525 U.S. at 204 (upholding 

requirement to disclose donations made to organizations to pay ballot-initiative petition 

circulators); Bellotti, 435 U.S. at 792 n.32 (“Identification of the source of advertising may be 

required as a means of disclosure . . . .”); Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 

1107 (9th Cir. 2003) (holding that state’s informational interest, where factually supported, is 

sufficient to justify mandatory financial disclosure regarding ballot-initiative advocacy); 

R.I. Affiliate, 431 F. Supp. 2d at 236 (citing Cal. Pro-Life Council). This is particularly 

noteworthy here because the Supreme Court has held that ballot-initiative activity is inherently 

issue-focused and does not have the same corruptive potential as spending to influence candidate 

elections. Bellotti, 435 U.S. at 790 (“The risk of corruption perceived in cases involving 

candidate elections simply is not present in a popular vote on a public issue.”) (internal citations 

omitted); McIntyre, 514 U.S. at 353 n.15 (quoting Bellotti). For this reason, the WRTL Court 

itself considered ballot-initiative advertising to be analogous to WRTL ads for First Amendment 

purposes. See WRTL, 127 S. Ct. at 2664-65 (citing Bellotti), 2671-73 (same). Thus, any claim 

by Plaintiff that the government has no interest in disclosure of non-campaign issue advocacy is 

contrary to Supreme Court precedent and must fail: The interest necessarily extends to issue 

speech “so that the people will be able to evaluate the arguments to which they are being 

subjected.” Bellotti, 435 U.S. at 792 n.32. 

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Second, courts are nearly unanimous in upholding mandatory disclosure of lobbying 

expenditures on the basis of the government’s interest in informing the public of who is 

attempting to sway the resolution of public issues and how they are attempting to do so. See,

e.g., United States v. Harriss, 347 U.S. 612, 625 (1954) (“[F]ull realization of the American ideal 

of government by elected representatives depends to no small extent on their ability to properly 

evaluate such pressures.”); Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 

460 (11th Cir. 1996) (upholding state lobbyist disclosure statutes in light of state interest in 

helping citizens “apprais[e] the integrity and performance of officeholders and candidates, in 

view of the pressures they face”); Minn. State Ethical Practices Bd. v. Nat’l Rifle Ass’n of Am., 

761 F.2d 509, 512 (8th Cir. 1985) (quoting Harriss); Nat’l Ass’n of Mfrs. v. Taylor, --- F. Supp. 

2d ---, Civ. No. 08-208, 2008 WL 1776997, at *7 (D.D.C. Apr. 18, 2008), appeal docketed, No. 

08-5085 (D.C. Cir.) (denying motion for preliminary injunction against enforcement of lobbyist 

disclosure statute where injunction “would prevent . . . the public from gaining access to the very 

information Congress sought to have revealed”).13 Lobbying, like issue advocacy, typically does 

not involve candidate campaigns; it is issue-oriented political activity protected by the First 

Amendment, and it therefore shares most of the key characteristics of WRTL advertising that the 

Supreme Court found significant in that case. See WRTL, 127 S. Ct. at 2667 (“The ads focus on 

a legislative issue [and] take a position on the issue . . . . The ads do not mention an election, 

candidacy, political party, or challenger . . . .”). Thus, these cases make clear that the 

 

13 See also Comm’n on Indep. Coll. & Univ. v. N.Y. Temp. State Comm’n on Regulation of 

Lobbying, 534 F. Supp. 489, 494-95 (N.D.N.Y. 1982) (“The lobby law serves to apprise the 

public of the sources of pressure on government officials, thus better enabling the public to 

access their performance.”); Am. Civil Liberties Union of N.J. v. N.J. Election Law Enforcement 

Comm’n, 509 F. Supp. 1123, 1129 (D.N.J. 1981) (“The voting public should be able to evaluate 

the performance of their elected officials in terms of representation of the electors’ interest in 

contradistinction to those interests represented by lobbyists.”) (citation omitted); Kimbell v. 

Hooper, 665 A.2d 44, 49 (Vt. 1995) (“Vermont’s lobbyist disclosure law is a reasonable means 

of evaluating the lobbyist’s influence on the political process.”). 

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government’s interest in providing information to the public extends beyond speech about 

candidate elections and encompasses activity that attempts to sway public opinion on issues, just 

as Plaintiff claims to wish to do here.

In sum, even accepting arguendo the proposition that Plaintiff’s WRTL ads are issue 

speech,14 such ads still constitute attempts to sway public opinion or action on the specified 

issues, just as ballot-initiative advertising and lobbying activities are. In each of these areas, the 

government’s informational interest has been uniformly recognized, and mandatory disclosure 

provisions have been consistently upheld.15 

b. Facilitating Enforcement of Funding Regulations 

The second important government interest courts have recognized in upholding 

disclosure statutes is the interest in enabling enforcement of substantive funding regulations. In 

the electoral context, Buckley upheld FECA’s disclosure requirements as advancing the 

government’s interest in “gathering the data necessary to detect violations of the contribution 

limitations.” 424 U.S. at 68. McConnell similarly held that mandatory disclosure was 

constitutional in light of the interest in “gathering the data necessary to enforce more substantive 

electioneering restrictions.” 540 U.S. at 196; see also id. at 200-01 (upholding compelled 

disclosure of executory contracts where to hold otherwise would “open a significant loophole” in 

 

14 As Chief Justice Roberts noted when he reaffirmed Buckley’s holding that the 

“‘distinction between discussion of issues and candidates and advocacy of election or defeat of 

candidates may often dissolve in practical application,’” WRTL, 127 S. Ct. at 2669 (quoting 

Buckley, 424 U.S. at 42), an ad may both resemble advocacy for or against candidates and 

advocate a position on an issue. Thus, even an ad that is exempt from BCRA’s financing 

restriction because it is susceptible of an interpretation as non-candidate advocacy may in fact 

influence an election. 

15 To the extent that Plaintiff’s WRTL ads are commercial speech, the government’s 

informational interest and ability to require disclosure may be even stronger. See Zauderer v. 

Office of Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S. 626, 651-52 (1985) (upholding 

disclaimer requirements in attorney advertising); Central Hudson, 447 U.S. at 562-63 (noting 

“lesser protection” accorded to commercial speech). 

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disclosure requirements); id. at 237 (upholding broadcast station record-keeping provisions to 

“provide an independently compiled set of data for purposes of verifying candidates’ compliance 

with the disclosure requirements and source limitations of BCRA and [FECA]”); cf. Daggett v. 

Comm’n on Gov’t Ethics & Election Practices, 205 F.3d 445, 466 (1st Cir. 2000) (upholding 

expenditure disclosure statutes to enable administration of public campaign financing system). 

This enforcement interest is not limited to spending by candidates or those coordinating 

their spending with candidates. The Supreme Court has recognized Congress’s “legitimate fear” 

that, if disclosure were limited to such spending, “efforts would be made, as they had been in the 

past, to avoid the disclosure requirements by routing financial support of candidates through 

avenues not explicitly covered by the general provisions of the Act.” Buckley, 424 U.S. at 76 

(internal quotation marks omitted). Thus, the government’s interest as it relates to disclosure of 

independent campaign-related spending “can be as strong as it is in coordinated spending.” See

Buckley, 424 U.S. at 81; Citizens for Responsible Gov’t, 236 F.3d at 1197 (upholding state 

disclosure requirements for independent expenditures); Daggett, 205 F.3d at 466 (same); 

Adventure Commc’ns, Inc. v. Ky. Registry of Election Fin., 191 F.3d 429, 443 (4th Cir. 1999) 

(upholding mandatory disclosure of data regarding advertising for or against state candidates). 

Nor is the enforcement interest limited to mandatory disclosure of disbursements by 

entities whose major purpose is campaign activity. For example, the Supreme Court in MCFL

held that the defendant corporation must be allowed to finance independent expenditures with its 

corporate treasury funds because it presented no “threat at all” of corruption due to its particular 

lack of business activity and funding. 479 U.S. at 263. Nevertheless, the Court held that MCFL 

would have to report its independent expenditures so that the public would have information, the 

Commission could monitor its independent spending, and the Commission could review whether 

the corporation’s major purpose has become campaign activity: 

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Even if [the contribution limit] is inapplicable, an independent expenditure 

of as little as $250 by MCFL will trigger the disclosure provisions of 

§ 434(c). As a result, MCFL will be required to identify all contributors 

who annually provide . . . funds intended to influence elections, will have 

to specify all recipients of independent spending . . ., and will be bound to 

identify all persons making contributions . . . who request that the money 

be used for independent expenditures. These reporting obligations 

provide precisely the information necessary to monitor MCFL’s 

independent spending activity and its receipt of contributions. . . . 

Furthermore, should MCFL’s independent spending become so extensive 

that the organization’s major purpose may be regarded as campaign 

activity, the corporation would be classified as a political committee. As 

such, it would automatically be subject to the obligations and restrictions 

applicable to those groups whose primary objective is to influence 

political campaigns. In sum, there is no need for the sake of disclosure to 

treat MCFL any differently than other organizations that only occasionally 

engage in independent spending on behalf of candidates. 

Id. at 262 (internal citation omitted and emphasis added). In other words, even though MCFL

corporations may finance independent expenditures and all electioneering communications with 

their general treasury funds, FECA’s disclosure provisions remain applicable to such 

corporations so that the government can determine if and when they cross the line from exempt 

to regulable activity. 

Analogously, even though the prohibition on corporate spending cannot constitutionally 

be applied when corporations run WRTL ads, the EC disclosure provisions remain applicable to 

such ads because the government has an important enforcement interest in determining which 

ECs are exempt under WRTL and which are regulable. The Ninth Circuit recognized such an 

interest in Alaska Right to Life, in which the court analyzed a state disclosure statute similar in 

both the reporting and disclaimer areas to FECA’s disclosure provisions regarding ECs. See 441 

F.3d at 788-93. The plaintiff in that case, an MCFL corporation, argued that “to the degree 

disclosure . . . is required for ‘issue advocacy’ communications . . . , there is no compelling state 

interest that would justify such a requirement.” Id. at 793. The court rejected ARTL’s 

contention, noting that the MCFL Court itself had found sufficient state interests, including an 

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enforcement interest, to justify mandatory disclosure regarding MCFL’s activities. Id. at 791-93. 

The Ninth Circuit therefore held that ARTL could constitutionally be compelled to make 

disclosures regarding advertising that met the statutory definition of an EC but that consisted 

only of issue advocacy — i.e., a subset of what would now be known as WRTL ads. 

This analysis applies with equal force to BCRA’s EC disclosure provisions: Without 

disclosure, the Commission would have difficulty knowing when or where ECs are being 

broadcast and would therefore be seriously harmed in its ability to ensure that communications 

purporting to be WRTL ads meet the criteria to be financed by corporate or union general 

treasury funds. Thus, requiring all EC advertisers to disclose serves the government’s important 

interest in “gathering the data” necessary to ensure that the Act is properly enforced. 

4. Plaintiff Demonstrates No Constitutional Burden Arising from the 

Disclosure Provisions 

Citizens United fails, as a matter of both law and fact, to demonstrate any cognizable 

First Amendment burden arising from the EC disclosure provisions. 

a. Plaintiff Presents No Evidence that Its Donors Will Suffer 

Reprisals 

Both Buckley and McConnell held that as-applied challenges to disclosure requirements 

might be appropriate in a single situation: when an organization’s disclosure would result in a 

“reasonable probability” of “threats, harassment, and reprisals” of its members. McConnell, 540 

U.S. at 198-99 (citing Buckley, NAACP v. Alabama, 357 U.S. 449 (1958), and Brown v. Socialist 

Workers ’74 Campaign Comm., 459 U.S. 87 (1982)); see also Buckley, 424 U.S. at 69-74, 82 

n.109 (citing NAACP). Proof of burdensome reprisal has been demonstrated, however, only in 

cases involving organizations, such as the NAACP and the Socialist Workers Party, whose 

members faced actual, documented danger at the relevant time. See Buckley, 424 U.S. at 69 

(noting that plaintiffs in NAACP faced “economic reprisal, loss of employment, physical 

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coercion, and other manifestations of public hostility”) (citation omitted); McConnell, 540 U.S. 

at 198-99 (noting that Brown Court found “reasonable probability” of “threats, harassment, and 

reprisals”). The Buckley and McConnell Courts, while recognizing harassment as a potential

burden, specifically found no evidence of actual harassment in the FECA/BCRA context and 

held that such evidence would be required to mount a reprisal-based, as-applied First 

Amendment challenge to the Act’s disclosure provisions. Buckley, 424 U.S. at 69 (“No record of 

harassment on a similar scale was found in this case.”); McConnell, 540 U.S. at 199 (upholding 

lower court finding that “concerns” of plaintiffs regarding harassment were unsupported due to 

“lack of specific evidence”); see also Alaska Right To Life, 441 F.3d at 793-94 (rejecting 

harassment-based, as-applied challenge to disclosure requirements); Citizens United, 530 

F. Supp. 2d at 281; cf. Nat’l Ass’n of Mfrs. v. Taylor, Civ. No. 08-208, 2008 WL 1390606, at 

*21-22 (D.D.C. Apr. 11, 2008), appeal docketed, No. 08-5085 (D.C. Cir.) (rejecting First 

Amendment challenge to lobbyist disclosure statute under NAACP standard where plaintiff 

“offer[ed] only speculation that harm may befall its members”).16 Accordingly, in the absence 

of specific evidence that a particular organization (or its members) faces a reasonable probability 

 

16 See also Mariani v. United States, 212 F.3d 761, 775 (3d Cir. 2000) (en banc) (citing 

Buckley for proposition that FECA disclosure provisions did not give rise to “reasonable 

probability” of “threats, harassment, or reprisals”); Jones, 613 F.2d at 876-77 (rejecting minor 

party’s claim that FEC investigation subjected party to threats or harassment); Colo. Right To 

Life, 395 F. Supp. 2d at 1016 n.17 (rejecting First Amendment claim because plaintiff did not 

provide evidence of threats or harassment arising from disclosure); cf. In re Grand Jury 

Proceedings, 776 F.2d 1099, 1103-04 (2d Cir. 1985) (holding that party asserting First 

Amendment associational privilege to withhold organization’s membership information from 

grand jury “must show a reasonable probability that compelled disclosure would subject an 

organization’s members to threats, harassment, or reprisals from either government officials or 

private parties”) (citing Buckley). 

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of NAACP-type harassment arising from the mandated disclosures, a plaintiff alleging this kind 

of burden cannot prevail in an as-applied challenge to the EC disclosure provisions.17

 

Citizens United presents no admissible evidence whatsoever regarding harassment of its 

donors (see Def.’s Statement of Genuine Issues ¶ 35), much less evidence sufficient to show a 

reasonable probability that disclosed donors would suffer constitutionally significant 

repercussions. Indeed, far from fearing reprisals, Plaintiff boasts of its “consistent and open 

association” with powerful government officials and political candidates. (Def.’s Facts ¶ 28 

(noting also that Plaintiff threatened to sue news organization for referring to Plaintiff as “fringe 

militia”).) Furthermore, Citizens United already publicly discloses donors to its political 

committee and section 527 organizations: Since 1994, Citizens United has disclosed 

approximately 1,200 political committee donations and approximately 11,500 donations to its 

527s, including the names and addresses of each donor, as well as many of their occupations and 

employers. (See Def.’s Facts ¶¶ 20-24.) In light of this extensive and ongoing record of 

disclosure, Citizens United’s lack of any evidence regarding reprisals is particularly telling. See 

Nat’l Ass’n of Mfrs., 2008 WL 1390606, at *22 (noting absence of evidence of harassment 

despite plaintiff’s voluntary public disclosure of hundreds of individuals and corporations 

affiliated with plaintiff). 

Instead of providing evidence, Plaintiff cites the district court record from McConnell, in 

which certain plaintiffs attempted to make factual showings regarding disclosure-related burdens 

17 If a donor faced a real threat of reprisal, the corporation could request that the 

Commission exempt disclosure of that donor from the relevant disclosure requirements on 

constitutional grounds, as the Socialist Workers Party has done repeatedly and successfully. See

FEC Advisory Opinions 1990-13 (granting party exemption from disclosure requirements due to 

substantiated threat of reprisals), 1996-46 (same), 2003-02 (same); see also Electioneering 

Communications, 72 Fed. Reg. at 72,901 (“Organizations with significant and serious threats of 

reprisal or harassment may seek as-applied exemptions to the disclosure requirements under 

Socialist Workers through advisory opinions and court filings.”). All FEC advisory opinions are 

available on the Commission’s website at http://saos.nictusa.com/saos/searchao. 

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(Pl.’s Mem. at 28), without referring to any evidence that Citizens United — which was also a 

plaintiff in McConnell — itself introduced. See McConnell, 251 F. Supp. 2d at 227-29 

(discussing testimony of NRA, ACLU, and three trade organizations). Not only are these facts 

therefore irrelevant to Citizen United’s pending as-applied challenge, but Plaintiff also fails to 

note that the Supreme Court found the evidence of burdens presented in McConnell insufficient 

to outweigh the government’s interests in disclosure. McConnell, 540 U.S. at 199. Thus, 

because Plaintiff, like the other McConnell plaintiffs, fails to make a sufficient factual showing 

regarding donor harassment, Plaintiff’s claim must fail for lack of evidence. 

Plaintiff’s claim also fails as a matter of law. Citizens United attempts to sidestep its 

dearth of facts with the untenable argument that disclosure is per se so constitutionally 

burdensome that the EC disclosure provisions must be struck down. (See Pl.’s Mem. at 25-32.) 

In support, Plaintiff cites Buckley, where the Court found that “encroachments” on First 

Amendment rights require the application of intermediate scrutiny. See Buckley, 424 U.S. at 64, 

68. But, having established the standard of scrutiny, Buckley then looked to the evidence that the 

disclosing parties would suffer threats, harassment, or reprisals upon disclosure. Id. at 69-74. 

Where such evidence is lacking, as in Buckley and here, as-applied challenges fail. Id.; see supra

pp. 25-27. 

Plaintiff also cites McIntyre and AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003), neither 

of which demonstrates the existence of any constitutional burden on Citizens United. As noted 

previously, McIntyre and subsequent cases distinguish between mandatory in-person selfidentification, which is not at issue in this action, and disclosure through government filings 

(such as in EC disclosure), which has been addressed and upheld in the line of cases from 

Buckley to McConnell. See supra Part II.B.2. AFL-CIO is even more removed: In that case, the 

Commission had subpoenaed polling data, campaign planning documents, and other strategic 

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information from organizations that had been charged with — but ultimately cleared of — 

wrongdoing. See 333 F.3d at 171. The D.C. Circuit held that a regulation under which the 

Commission intended to make the information public after the conclusion of the investigation 

was constitutionally invalid in light of the organizations’ evidence that “disclosing detailed 

descriptions of training programs, member mobilization campaigns, polling data, and state-bystate strategies [would] directly frustrate the organizations’ ability to pursue their political goals 

by revealing to their opponents activities, strategies and tactics.” Id. at 176-77. This regulation 

accordingly posed a danger of unilateral disclosure not present in the universally applicable 

requirements at issue in this case, and no comparable strategic material is at issue here. 

Finally, Plaintiff paraphrases several articles discussing, inter alia, the “privacy costs” of 

disclosure and penalties that have been imposed on groups that fail to make required disclosures. 

(Pl.’s Mem. at 28-32.) Plaintiff offers neither any explanation of how these articles are relevant 

to the specific issue of Citizens United’s as-applied challenge (as opposed to disclosure in 

general) nor any legal authority supporting their assertions. In short, the extended narration of 

these articles merely highlights the absence of evidence and caselaw supporting Plaintiff’s claim. 

b. Plaintiff Presents No Evidence that the Disclosure Requirements 

Will Chill Its Speech 

Plaintiff also argues that the disclosure requirements will chill its speech. (See Pl.’s 

Mem. at 6.) The manner in which such a chill would operate under this theory is unclear: To the 

extent that Plaintiff’s claim is based on speculation that the reporting requirements might cause 

donors not to contribute to Plaintiff because of a fear of reprisal or a preference for nondisclosure (see Plaintiff’s Statement of Undisputed Material Facts (“Pl.’s Facts”) ¶¶ 35, 39), the 

argument fails for the reasons stated above. See supra Part II.B.4.a; see also Buckley, 424 U.S. 

at 68 (holding disclosure requirements constitutional even though “[i]t is undoubtedly true that 

public disclosure of contributions . . . will deter some individuals who otherwise might 

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contribute.”). To the extent Plaintiff claims that the disclosure requirements will chill its speech 

directly, this argument has been explicitly rejected in McConnell and numerous other cases 

holding that financial reporting relating to speech is, as a matter of law, too removed in time and 

space from the speech act to constitute an unconstitutional hindrance to speech. See McConnell, 

540 U.S. at 197-99, 201 (“[FECA’s] disclosure requirements are constitutional because they 

‘d[o] not prevent anyone from speaking.’”) (quoting McConnell, 251 F. Supp. 2d at 241); see 

also Buckley v. Am. Constitutional Law Found., 525 U.S. at 198 (rejecting challenge to 

requirement that petition circulators file affidavits); Majors, 361 F.3d at 354; Citizens for 

Responsible Gov’t, 236 F.3d at 1199; ACLU v. Heller, 378 F.3d at 1002; cf. Harriss, 347 U.S. at 

626 (rejecting First Amendment challenge to federal lobbyist disclosure statute because “hazard” 

of speech being silenced by financial disclosure was “too remote” to outweigh government’s 

interest in protecting legislative process).18 In short, there is no authority for the proposition that 

financial disclosure imposes an unconstitutional chill on speech outside the context of reprisals 

against disclosed donors, and, even if such authority existed, Plaintiff has not demonstrated any 

direct chill on its speech. 

c. The Disclaimer Requirements Impose No Constitutional Burdens 

Although Plaintiff makes a factual allegation that the disclaimer requirements will cause 

Plaintiff to “mislead the public” by “identifying its speech as electioneering speech” (Pl.’s Facts 

¶ 39), Plaintiff’s brief makes no argument regarding this claim. In fact, Plaintiff’s brief makes 

 

18 Indeed, such a claim would be particularly dubious here, given that there is currently an 

eight-week period (between now and thirty days before the Democratic convention) during 

which Plaintiff can advertise its films nationwide, through any medium, without these 

communications’ being regulated as ECs. (Def.’s Facts ¶ 12.) Although Plaintiff has alleged 

that it is most interested in advertising the films shortly before elections, Plaintiff has, in fact, 

exhibited Hillary: The Movie in several theaters after state primaries. (See id. ¶ 8.) This casts 

further doubt on any allegations of chilled speech, as the thirty-day EC period closes on the day 

of the primary, so Plaintiff was then completely free to advertise each of these theater showings 

in these markets. 

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no argument whatsoever about the disclaimer requirements specifically.19 Nonetheless, because 

Plaintiff did raise such an argument during preliminary injunction briefing, the Commission 

notes that Plaintiff’s allegation is completely unsupported in the factual record. Plaintiff 

provides no evidence that a single person has ever been “misled” by an EC disclaimer. Cf.

Crawford v. Marion County Election Bd., 128 S. Ct. 1610, 1622-23 (2008) (rejecting challenge 

to voter-identification law where evidence did not show any specific person had been unable to 

vote); Wash. St. Grange v. Wash. St. Republican Party, 128 S. Ct. 1184, 1193-94 (2008) 

(rejecting facial challenge to statute governing ballot listings where evidence did not show that 

any voter would be misled by listings). 

Furthermore, the argument has no basis in law. As noted supra Part I.A, BCRA requires 

the following disclosures relating to televised ECs: (1) a financial statement filed with the 

Commission; (2) a written statement on the screen, with the name and contact information of the 

entity funding the EC, stating that this entity “is responsible for the content of this advertising” 

and “that the communication is not authorized by any candidate or candidate’s committee”; and 

(3) an oral statement that the entity funding the EC “is responsible for the content of this 

advertising.” Contrary to Plaintiff’s unexplained assertion, none of these provisions requires 

Citizens United to identify its ads as “electioneering speech.” In fact, the disclaimer 

requirements are precisely worded so that Plaintiff need only take responsibility “for the content 

of this advertising,” with no additional characterization or definition. Plaintiff does not explain 

how such a statement could or would “mislead” the public. Cf. Wash. St. Grange, 128 S. Ct. at 

1193-94 (holding that plaintiffs’ “sheer speculation” regarding “mere possibility” that “voters 

will be confused” was “fatal flaw” in challenge to statute regarding candidate ballot listings). 

 

19 The only specific references to the disclaimer requirement are in the “Facts” section of 

plaintiff’s brief (Pl.’s Mem. at 2-6), which merely repeats Plaintiff’s Statement of Undisputed 

Material Facts. 

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In Meese v. Keene, 481 U.S. 465 (1987), the Supreme Court considered and rejected an 

argument identical to the one now raised by Citizens United. The Meese plaintiff, who wished to 

exhibit certain films, claimed his First Amendment rights were violated by a statute that required 

the films to be labeled “political propaganda.” Id. at 467-68. The Court denied this claim and 

held that the plaintiff’s rights were not violated because: (a) the plaintiff was free to go beyond 

the required disclosures to explain to his audience that the films were not “propaganda” in the 

common understanding of the term, id. at 480-81; (b) the statute did not require any information 

to be withheld from the public, id. at 481-82; (c) “a zeal to protect the public from too much 

information” does not state a constitutional claim, id. at 482 (internal quotation marks omitted); 

(d) there was no evidence on the record that the public misunderstood the label, id. at 483; and 

(e) “no constitutional provision prohibits the Congress” from using whatever labels it wishes to 

use in defining terms within legislation, id. at 484-85. Each of these rationales applies with 

equal force here: Plaintiff is free to explain the meaning of the term “electioneering” as much as 

it wishes, the statute withholds no information from the public, there is no evidence that the 

public is confused by EC disclaimers, and Congress was entirely within its power to use the term 

“electioneering communication” instead of whatever term Plaintiff would prefer. 

Plaintiff also alleges (but makes no legal argument in relation to the allegation) that the 

disclaimer requirements “will preclude Citizens United from running its 10-second ads.” (Pl.’s 

Facts ¶ 39.) The Commission is not aware of any authority holding that a requirement to use a 

portion of a television commercial to convey important information relevant to that commercial 

creates a cognizable constitutional burden on the advertiser’s ability to advertise. See

McConnell, 540 U.S. at 230-31 (upholding BCRA’s extension of spoken disclaimer requirement 

to ECs). Indeed, federal and state governments often require extensive oral and written 

information to be included in various communications, such as advertising for attorneys, 

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pharmaceuticals, securities, etc. As the Second Circuit has stated in rejecting a First Amendment 

challenge to a state labeling law: 

[W]e note the potentially wide-ranging implications of [plaintiff’s] First 

Amendment complaint. Innumerable federal and state regulatory 

programs require the disclosure of product and other commercial 

information. See, e.g., 2 U.S.C. § 434 (reporting of federal election 

campaign contributions); 15 U.S.C. § 78l (securities disclosures); 15 

U.S.C. § 1333 (tobacco labeling); 21 U.S.C. § 343(q)(1) (nutritional 

labeling); 33 U.S.C. § 1318 (reporting of pollutant concentrations in 

discharges to water); 42 U.S.C. § 11023 (reporting of releases of toxic 

substances); 21 C.F.R. § 202.1 (disclosures in prescription drug 

advertisements); 29 C.F.R. § 1910.1200 (posting notification of workplace 

hazards); Cal. Health & Safety Code § 25249.6 (“Proposition 65”; 

warning of potential exposure to certain hazardous substances); N.Y. 

Envtl. Conserv. Law § 33-0707 (disclosure of pesticide formulas). To 

hold that the Vermont statute is insufficiently related to the state’s interest 

in reducing mercury pollution would expose these long established 

programs to searching scrutiny by unelected courts. Such a result is 

neither wise nor constitutionally required. 

Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 116 (2d Cir. 2001). In each of these areas, the 

advertiser undoubtedly would prefer to use its time and space for content other than a disclaimer, 

but the disclaimer requirements do not prevent Plaintiff from advertising — they only result in 

Plaintiff, like all advertisers subject to regulation, having to purchase a few seconds of additional 

advertising time, which is not a burden of constitutional dimension.20

In sum, Plaintiff’s brief provides no factual basis for, or legal argument regarding, 

Plaintiff’s challenge to the disclaimer requirements. In any event, the Commission should be 

granted summary judgment because Plaintiff fails to state a cognizable claim that the disclaimer 

 

20 Although Plaintiff conflates the written and spoken disclaimer provisions into a single 

“Disclaimer Requirement” (Pl.’s Summ. J. Mot. at 1 n.1) that allegedly “deprives Citizens 

United of valuable time in its short and expensive broadcast Ads” (Pl.’s Facts ¶ 39), the written 

disclaimer provision has little effect on an advertiser’s ability to use its time as it wishes, for the 

written disclaimer may be as small as four percent of vertical height of television screen. 11 

C.F.R. § 110.11(c)(4)(iii)(A). 

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requirements unconstitutionally burden Citizens United by misleading the public or mandating a 

spoken message. 

5. The Important Government Interests Support the Disclosure Requirements 

As Applied to Plaintiff 

For the foregoing reasons, important government interests support the congressionally 

mandated disclosure provisions at issue here. Specifically, there are important interests in 

providing information to the public regarding the financing of Plaintiff’s ads, and in enforcing 

the substantive restrictions applicable to ECs. Plaintiff has provided neither factual evidence nor 

legal authority for the proposition that the disclosure provisions constitute a burden on Citizens 

United’s First Amendment rights. Thus, summary judgment should be granted to the 

Commission on Count 1 of the Amended Complaint. 

C. The EC Disclosure Provisions Are Constitutional As Applied to Plaintiff’s 

Film 

Count 2 of the Amended Complaint seeks an injunction against enforcement of the EC 

disclosure provisions as to the cable distribution of Hillary: The Movie. Even if the film were 

exempt from the corporate funding restriction under WRTL, the EC disclosure provisions would 

be constitutional as applied for the reasons stated above. See supra Part II.B. Moreover, 

Hillary: The Movie is the functional equivalent of express advocacy, see Citizens United, 530 F. 

Supp. 2d at 280; infra Part II.D, as to which there is no doubt regarding the constitutionality of 

disclosure under McConnell. See 540 U.S. at 194-99. 

D. Hillary: The Movie Is the Functional Equivalent of Express Advocacy 

For the reasons stated in the Commission’s Motion to Dismiss Counts 3 and 4 of the 

Amended Complaint, Hillary: The Movie is the functional equivalent of express advocacy; thus, 

Count 3 of the Amended Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6), 

and Plaintiff’s motion for summary judgment as to Count 3 should be denied as moot. 

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Alternately, for the same reasons and because no material facts are in dispute, the Commission 

should be granted summary judgment as to Count 3, and Plaintiff’s motion for summary 

judgment should be denied on the merits. For the convenience of the Court, the Commission 

reiterates below the relevant portions of its Motion to Dismiss Counts 3 and 4 of the Amended 

Complaint and its reply brief in support of that motion, as modified to oppose Plaintiff’s motion 

for summary judgment. 

1. The EC Funding Restriction Is Constitutional As Applied to ECs that Are 

the Functional Equivalent of Express Advocacy 

It is “firmly embedded” in the Supreme Court’s First Amendment jurisprudence that 

corporations and labor unions may constitutionally be prohibited from using their general 

treasuries to fund communications that expressly advocate for or against the election of a 

candidate. McConnell, 540 U.S. at 203. In BCRA, Congress broadened this prohibition to 

encompass not just corporate and union express advocacy expenditures (which were already 

prohibited under FECA), but also corporate and union expenditures for communications that 

meet the statutory definition of an EC. See BCRA § 203 (codified as part of 2 U.S.C. § 441b). 

The McConnell plaintiffs brought a facial challenge against the constitutionality of the 

EC funding restriction, arguing that the statute was overbroad because it prohibited corporations 

from financing non-campaign issue speech immediately before an election. The Supreme Court 

rejected this challenge and upheld BCRA § 203 on its face. McConnell, 540 U.S. at 203-09. 

The Court agreed with the plaintiffs that the corporate funding restriction encompassed both 

campaign advocacy and some “issue ads,” but the Court held that the government’s longrecognized and compelling interests in regulating corporate-funded express advocacy apply with 

equal force to the interests in regulating corporate-funded speech that is “the functional 

equivalent of express advocacy.” Id. at 205-06. The Court reasoned that, because the EC 

definition only encompasses communications that refer to a specific candidate shortly before an 

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election, the fact that a communication meets the statutory criteria “strongly supports” a finding 

that any given EC is the functional equivalent of express advocacy, and, therefore, that the 

funding restriction’s potential “application to pure issue ads” is insubstantial. See id. at 207. 

Indeed, the Court noted, “[e]ven if we assumed that BCRA will inhibit some constitutionally 

protected corporate and union speech, that assumption would not justify prohibiting all 

enforcement of the law.” Id. (internal quotation marks omitted). Thus, McConnell held that the 

EC provision was “amply justifie[d],” id. at 208, and the plaintiffs had not “carried their heavy 

burden” to show the funding restriction to be unconstitutional on its face. Id. at 207 

Four years later, in the context of an as-applied challenge to the EC funding restriction, 

the Supreme Court held that the restriction could constitutionally be applied only to ECs that are 

the functional equivalent of express advocacy. See WRTL, 127 S. Ct. at 2664 (“This Court has 

already ruled that BCRA survives strict scrutiny to the extent it regulates express advocacy or its 

functional equivalent. So to the extent the ads in these cases fit this description, the FEC’s 

burden is not onerous; all it need do is point to McConnell and explain why it applies here.”) 

(citing McConnell, 540 U.S. at 206). The controlling opinion in WRTL defined “the functional 

equivalent of express advocacy” as speech that is “susceptible of no reasonable interpretation 

other than as an appeal to vote for or against a specific candidate.” WRTL, 127 S. Ct. at 2667. 

The opinion immediately then listed criteria relevant to the application of this standard and 

explained why the ads at issue in WRTL could be so interpreted: 

Under this test, WRTL’s three ads are plainly not the functional equivalent 

of express advocacy. First, their content is consistent with that of a 

genuine issue ad: The ads focus on a legislative issue, take a position on 

the issue, exhort the public to adopt that position, and urge the public to 

contact public officials with respect to the matter. Second, their content 

lacks indicia of express advocacy: The ads do not mention an election, 

candidacy, political party, or challenger; and they do not take a position on 

a candidate’s character, qualifications, or fitness for office. 

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Id. The Commission included these criteria, effectively verbatim, in its regulations 

implementing WRTL. See 11 C.F.R. § 114.15. 

In sum, the EC funding restriction is unconstitutional as applied to ECs that are 

susceptible of a reasonable interpretation other than as an appeal to vote for or against a 

candidate, but the restriction is constitutional as applied to ECs that are the functional equivalent 

of express advocacy. 

2. Plaintiff’s Film Is the Functional Equivalent of Express Advocacy 

Count 3 of the Amended Complaint alleges that the EC funding restriction is 

unconstitutional as applied to Hillary: The Movie because “the movie ‘may reasonably be 

interpreted as something other than as an appeal to vote for or against a specific candidate.’” 

(Am. Compl. ¶ 41 (quoting WRTL, 127 S. Ct. at 2670).) However, as this Court preliminarily 

held, Hillary: The Movie is the functional equivalent of express advocacy. Citizens United, 530 

F. Supp. 2d at 280. 

Plaintiff’s film fails the WRTL standard. See WRTL, 127 S. Ct. at 2667; Citizens United, 

530 F. Supp. 2d at 278-80. First, Hillary: The Movie mentions an election and candidacy. 

(Def.’s Facts ¶ 4(a)-(n) (quoting Am. Compl. Exh. 2 at 1, 5-6, 9, 21-22, 32, 39, 51-52, 57, 60, 

67-69).) Second, it takes a position on a candidate’s character, qualifications, or fitness for 

office. (Def.’s Facts ¶ 5(a)-(m) (quoting Am. Compl. Exh. 2 at 1-2, 7-8, 35-36, 47, 60, 69-72).) 

For example, the movie declares “beyond a shadow of a doubt” that Senator Clinton “is not 

equipped, not qualified to be our commander in chief” (Am. Compl. Exh. 2 at 71); it asks, 

rhetorically, “what is there that she has accomplished in her life — that would lead you to 

believe that she should become the most powerful person in the country?” (id. at 70); and it says 

that she lacks “the legislative gravitas and qualifications enough to elect her [P]resident of the 

[U]nited [S]tates.” (Id. at 36.) 

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Moreover, the movie fails to qualify for an exemption under WRTL because it “does not 

focus on legislative issues” or otherwise constitute issue advocacy. Citizens United, 530 F. 

Supp. 2d at 279; see also Def.’s Facts ¶ 6. The film does not “take a position on [an] issue, 

exhort the public to adopt that position, and urge the public to contact public officials with 

respect to the matter,” WRTL, 127 S. Ct. at 2667, as Plaintiff has already conceded. (See Pl.’s 

Mem. in Support of Second Mot. for Prelim. Inj. at 7 (acknowledging that movie is not 

“grassroots lobbying activity” and includes no call to action other than voting).) The only 

focuses of the film are Senator Clinton’s character and fitness for office and her actions in 

relation to certain controversies during Bill Clinton’s presidency. (See, e.g., Am. Compl. Exh. 2 

at 10-35 (discussing, inter alia, “travelgate”), 50-67 (discussing, inter alia, Bill Clinton’s 

presidential pardons).) In the few short portions of the film that touch on legislative issues, the 

film consistently and explicitly ties these issues to further critiques of Senator Clinton’s character 

and fitness for the presidency. (See, e.g., id. at 46-47 (discussing immigration debate and 

concluding that “it raised the question can you withstand the criticism . . . and if [you’re] gonna 

whine about people complaining about you, that doesn’t suggest presidential stature or 

character”); id. at 47-49 (discussing Iraq war and concluding that Senator Clinton is “not flipping 

and flopping. [S]he’s lying.”).) The inclusion of such issue-based criticisms does not mean that 

Plaintiff’s movie is genuine issue advocacy. See WRTL, 127 S. Ct. at 2667 n.6 (contrasting issue 

ads in that case with hypothetical ad that “condemned [the candidate]’s record on a particular 

issue” in the McConnell decision). Moreover, the overwhelming majority of the movie’s 

advocacy criticizes the character of Senator Clinton without reference to any issues at all. 

Plaintiff is thus incorrect as a matter of law that Hillary: The Movie is an “issue-advocacy film” 

(Am. Compl. ¶ 14), as the criticisms in the movie are not “issue advocacy” as WRTL used that 

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term. See WRTL, 127 S. Ct. at 2667 (describing “genuine issue ad[s]”). The only advocacy in 

Plaintiff’s film is its opposition to the election of Senator Clinton to the presidency. 

Thus, because Hillary: The Movie is nothing but an extensive critique of Senator 

Clinton’s “character, qualifications, and fitness for office” and lacks indicia of genuine issue 

advocacy, the film is, in the words and analysis of WRTL itself, susceptible of no reasonable 

interpretation other than as an appeal to vote against her. It is, in short, the functional equivalent 

of express advocacy, to which the EC funding restrictions may constitutionally be applied. 

Citizens United, 530 F. Supp. 2d at 279-80 (citing McConnell). Accordingly, Count 3 of the 

Amended Complaint fails as a matter of law. 

3. Plaintiff’s Counterarguments Are Without Merit 

The main thrust of Plaintiff’s motion for summary judgment on Count 3 (see Pl.’s Mem. 

at 33-45) is that Hillary: The Movie is constitutionally exempt from the EC corporate funding 

restriction because the film purportedly contains “no words constituting” an appeal to vote 

against Senator Clinton. (Id. at 34.) This argument fails as a matter of law, for it seeks to 

reintroduce a test akin to the “magic words” requirement that the Supreme Court rejected in 

McConnell and WRTL. The WRTL test requires a broadcast to be the “functional equivalent of 

express advocacy,” 127 S. Ct. at 2667 (emphasis added) — an analysis that is necessarily 

broader than a wooden, “magic words” interpretation of express advocacy or any other standard 

that relies upon the presence of particular words, phrases, or grammatical constructs. 

The history of the Supreme Court’s express advocacy jurisprudence demonstrates the 

shortcomings of Plaintiff’s argument. In Buckley, the Court held that FECA’s statutory 

limitation of expenditures “relative to a clearly identified candidate” was unconstitutionally 

vague and, accordingly, construed it narrowly to encompass only expenditures for 

communications that expressly advocate the election or defeat of a candidate. See Buckley, 424 

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U.S. at 44; McConnell, 540 U.S. at 190-93 (discussing Buckley). Buckley characterized express 

advocacy communications as those “containing express words of advocacy of election or defeat, 

such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ 

‘defeat,’ ‘reject.’” Buckley, 424 U.S. at 44 n.52; see also McConnell, 540 U.S. at 191. 

In part because the express advocacy requirement proved easy to evade, see McConnell, 

540 U.S. at 193, Congress enacted BCRA, which expanded the application of FECA’s corporate 

and union financing restriction to all ECs. Other than a reference to a candidate, there is no 

content requirement in the EC definition. See 2 U.S.C. § 434(f)(3)(A)(i). Accordingly, the 

McConnell plaintiffs challenged the constitutionality of the EC definition because, inter alia, it 

restricted corporate and union funding of communications that did not contain express advocacy. 

McConnell, 540 U.S. at 205-06 (“[P]laintiffs argue that the justifications that adequately support 

the regulation of express advocacy do not apply to significant quantities of speech encompassed 

by the definition of electioneering communications.”). The Supreme Court rejected this 

argument, finding that the “vast majority” of communications mentioning candidates within the 

EC windows are “the functional equivalent of express advocacy,” and therefore ECs may 

constitutionally be subject to the corporate funding restriction. Id. at 206. The Court further 

emphasized that its prior “express advocacy limitation [in Buckley], in both the expenditure and 

the disclosure contexts, was the product of statutory interpretation rather than a constitutional 

command.” Id. at 191-92. The Court accordingly upheld BCRA’s corporate funding restriction 

on its face. Id. at 209.

In WRTL, the Court held that BCRA’s funding restriction for ECs could be applied 

constitutionally to broadcasts meeting the statutory EC definition only if they are the “functional 

equivalent” of express advocacy, i.e., are “susceptible of no reasonable interpretation other than 

as an appeal to vote for or against a specific candidate.” WRTL, 127 S. Ct. at 2667. This test, 

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like McConnell, imposes no magic-words requirement; instead, WRTL explicitly states that the 

analysis must “focus[ ] on the substance of the communication.” Id. at 2666. WRTL overruled 

neither McConnell’s facial upholding of the EC provision nor its explanation that Buckley’s

express advocacy interpretation is not a constitutional requirement. 

Nonetheless, Plaintiff now attempts to import a narrow interpretation of express advocacy 

into the WRTL test. (See, e.g., Pl.’s Mem. at 36 (“[T]he issue that must be decided is whether 

there are actual words in Hillary that contain WRTL II’s required unambiguous ‘appeal to 

vote . . . .’”).) In support of its claim, Plaintiff selectively quotes WRTL’s language regarding an 

“appeal to vote.” (See id. at 36-37.) Plaintiff fails to note, however, that the test from which this 

language is taken does not ask whether the communication contains specific words constituting 

an appeal to vote (as Plaintiff repeatedly suggests), but instead whether the communication “is 

susceptible of no reasonable interpretation other than as an appeal to vote.” WRTL, 127 S. Ct. at 

2667 (emphasis added). WRTL’s application of the test further demonstrates that the inquiry is 

holistic, examining the “focus” of the communication, any “position” it manifests, and whether 

the “content is consistent” with “genuine” issue advocacy. Id. Indeed, when the Court analyzed 

whether the content of WRTL’s ads contained “indicia of express advocacy,” it reviewed 

whether the ads “mention an election, candidacy, political party, or challenger,” and whether 

they “take a position on a candidate’s character, qualifications, or fitness for office,” not whether 

the ads contain specific words exhorting viewers to vote for or against a candidate. Id. Thus, 

WRTL does not support Plaintiff’s argument that the presence or absence of specific words of 

electoral advocacy is the determining factor in whether a communication is the functional 

equivalent of express advocacy.21

 

21 Plaintiff’s extended discussion of FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987), is 

irrelevant: That case entailed a dispute about Buckley’s “express advocacy” narrowing 

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As set forth above, Plaintiff’s film is overwhelmingly focused on Senator Clinton’s 

candidacy for president and devoted to attacking her character and her fitness for that office, 

such that it is susceptible of no reasonable interpretation other than as an appeal to vote against 

her. See supra Part II.D.2; Citizens United, 530 F. Supp. 2d at 279-80 (“The Movie is susceptible 

of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that 

the United States would be a dangerous place in a President Hillary Clinton world, and that 

viewers should vote against her.”). Under the WRTL test, Hillary: The Movie “is thus the 

functional equivalent of express advocacy.” Citizens United, 530 F. Supp. 2d at 280. 

Plaintiff’s related argument (Pl.’s Mem. at 1, 35-36) that the film is issue advocacy — 

because of what Plaintiff calls the “dissolving-distinction problem” (id. at 14-15, 35) — is 

similarly untenable. As the Chief Justice wrote in WRTL, the relevant constitutional question for 

communications that purport to be issue speech is not whether the communications contain issue 

speech, but whether they “focus on a legislative issue . . . and urge the public to contact public 

officials with respect to the matter.” WRTL, 127 S. Ct. at 2667 (emphasis added). Merely 

including references to an “issue” within a communication that focuses on a candidate’s fitness 

for office neither immunizes the communication from regulation nor renders it issue speech. See

McConnell, 540 U.S. at 193 & n.78 (noting that, despite ad’s references to family values issues, 

“[t]he notion that [the Bill Yellowtail ad] was designed purely to discuss the issue of family 

values strains credulity”); Citizens United, 530 F. Supp. 2d at 279 (“Citizens contends . . . that 

issue speech is any speech that does not expressly say how a viewer should vote. The trouble is 

that the controlling opinion in WRTL stands for no such thing.”).22 Thus, as WRTL confirmed, 

 

construction due to vagueness concerns — concerns that are absent with respect to the statutory 

EC definition. See supra Part II.B.2. 

22 For this reason, Plaintiff’s statement that “ads stating a candidate’s position and 

criticizing or praising that position may be fully protected political speech” (Pl.’s Mem. at 17 

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the relevant question is whether “the substance of the communication” as a whole is the 

functional equivalent of express advocacy. See WRTL, 127 S. Ct. at 2666; see also MCFL, 479 

U.S. at 249-50 (holding that newsletter’s combination of exhortation to vote pro-life, plus 

separate list of pro-life candidates, constituted express advocacy, even though newsletter did not 

explicitly appeal for votes for named candidates). 

Hillary: The Movie contains only brief references to legislative issues, while focusing on 

Senator Clinton’s character and fitness for office and omitting any appeal for public action (other 

than voting against Senator Clinton). See supra Part II.D.2. In fact, even the fleeting instances 

of issue-related discussion within Hillary: The Movie are not genuine issue speech, for each issue 

is discussed only as a further means of attacking Senator Clinton’s character and fitness for 

higher office. Id. In addition to contemporaneously tying its brief issue discussions to her 

character, the film concludes emphatically that these are reasons that she should not be elected to 

the presidency. (See Am. Compl. Exh. 2 at 68-72 (concluding, inter alia, that Senator Clinton 

“has great defects” as potential president, lacks experience to “become the most powerful person 

in the country,” is not “going to [be] good for the security of the United States,” and poses 

“fundamental danger . . . to every value that we hold dear”).) Plaintiff does not and cannot 

identify a single issue that is raised in the film without being connected to Senator Clinton’s 

candidacy. Because the film has no reasonable interpretation other than as an appeal to vote 

against Senator Clinton, Count 3 of the Amended Complaint must fail as a matter of law. 

 

(emphasis added)) misses the point. As WRTL explained, an ad’s use of a candidate’s position as 

a basis for attacking his character, qualifications, and fitness for office is “indic[ative] of express 

advocacy,” not “a genuine issue ad.” See 127 S. Ct. at 2667 & n.6. Similarly, as the Court has 

noted in the context of express advocacy, when a communication goes “beyond issue discussion” 

to campaign speech, the communication “falls squarely within” the corporate financing 

restriction. See MCFL, 479 U.S. at 249-50 (holding that corporation’s newsletter was express 

advocacy, despite inclusion of issue speech as part of the communication). 

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Plaintiff makes three additional arguments, each of which lacks merit. First, Plaintiff 

claims that the EC financing restriction should be construed to apply only to “ads,” not to “a fulllength documentary movie shown in theaters, sold on DVD, and with a compendium book.” 

(Pl.’s Mem. at 40-41.) But none of these cited methods of distributing Hillary: The Movie is 

subject to any EC regulations whatsoever; only the cable television distribution of the film falls 

within the statutory definition of an EC, and that definition draws no distinction between 

advertisements or movies. See 2 U.S.C. § 434(f)(3)(A)(i) (defining EC as “broadcast, cable, or 

satellite communication”). Furthermore, although McConnell upheld BCRA’s corporate 

financing restriction on its face, 540 U.S. at 209, Plaintiff attempts to limit this holding to 

advertisements, stating that “[t]here was no record evidence [in McConnell] that movies were a 

problem.” (Pl.’s Mem. at 41.) This assertion, however, is belied by the paid, thirty-minute 

“infomercials”23 that, as Plaintiff notes, were not only in the McConnell record, but were actually 

discussed by the district court in that case. See Pl.’s Mem. at 40 (citing McConnell, 251 F. Supp. 

2d at 305-06, 316-17); see also McConnell, 251 F. Supp. 2d at 547-48 (opinion of KollarKotelly, J.), 906 (opinion of Leon, J.). Thus, the McConnell Court was aware of the existence of 

ECs longer than thirty- or sixty-second ads when it upheld the EC definition.24

Second, Plaintiff argues (Pl.’s Mem. at 41-42, 44-45) that Hillary: The Movie is “the 

functional equivalent of a book,” and therefore it is entitled to greater First Amendment 

protections than is a standard television advertisement. Under FECA, however, this is an 

irrelevant comparison, for a book (such as the companion book to Plaintiff’s film) could never be 

 

23 Cf. Def.’s Exh. 8 (filed under seal) (offering option to pay to air film on cable television). 

24 Plaintiff also repeatedly quotes isolated words from McConnell in an attempt to argue 

that the Court never specifically found movies to be constitutionally regulable. (See Pl.’s Mem. 

at 39-40.) This argument, however, is baseless, for McConnell’s facial upholding of the EC 

corporate funding restriction included film-length broadcasts by definition. See 2 U.S.C. 

§ 434(f)(3)(A)-(B) (defining ECs by method of broadcast and providing no exemption based on 

length of broadcast). 

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an EC. Plaintiff’s choice to broadcast the film on cable television falls squarely within the EC 

provision, and neither this provision nor the Supreme Court’s opinions provide a basis for 

exempting certain broadcasts simply because they differ in form from standard television 

advertisements, much less because they might theoretically have been distributed in some other 

medium subject to different regulation.25 Cf. McConnell, 540 U.S. at 207 (rejecting argument 

that EC provision is “underinclusive because it does not apply to advertising in the print media”). 

Third, as it has done several times throughout this litigation, Plaintiff again attempts to 

draw a parallel between Hillary: The Movie and the film Fahrenheit 9/11. (Pl.’s Mem. at 41.) 

The apparent implication of Plaintiff’s argument is that, if Michael Moore’s film criticizing 

President Bush was not subject to regulation as an EC, then neither should Plaintiff’s film 

criticizing Senator Clinton. But this comparison is meaningless, for Fahrenheit 9/11 was never 

shown on television during an electioneering communication window, and thus it was never an 

EC or otherwise subject to the Commission’s jurisdiction. 

In sum, none of Plaintiff’s arguments regarding Hillary: The Movie has any merit, and 

Count 3 fails as a matter of law. 

III. CONCLUSION 

For the foregoing reasons, the Commission respectfully requests that the Court grant the 

Commission summary judgment as to Counts 1, 2, and 3 of the Amended Complaint. 

 

25 Plaintiff’s argument also fails as a factual matter: Plaintiff’s film contains multiple visual 

attacks on Senator Clinton’s character that are not reflected in the written script. (See, e.g., 

Def.’s Facts ¶ 5(m).) Because these attacks consist primarily of carefully edited video montages 

that could not be duplicated on the pages of a book, Hillary: The Movie cannot reasonably be 

considered “the functional equivalent of a book.” 

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46

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: June 6, 2008 (202) 694-1650 

Case 1:07-cv-02240-RCL-RWR Document 55 Filed 06/06/2008 Page 54 of 71
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

CITIZENS UNITED, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civ. No. 07-2240 (ARR, RCL, RWR) 

 ) 

FEDERAL ELECTION COMMISSION, ) STATEMENT OF MATERIAL FACTS 

 ) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S STATEMENT 

OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE DISPUTE 

Pursuant to Fed. R. Civ. P. 56 and LCvR 7(h) and 56.1, Defendant Federal Election 

Commission (“Commission”) submits the following statement of material facts as to which there 

is no genuine dispute. 

THE PARTIES 

1. Plaintiff Citizens United is a Virginia corporation holding tax-exempt status under 

section 501(c)(4) of the Internal Revenue Code. (Am. Compl. ¶ 5.) 

2. The Commission is the independent agency of the United States responsible for 

the administration, interpretation, and civil enforcement of the Federal Election Campaign Act 

(“FECA”). See 2 U.S.C. §§ 437c(b)(1), 437d(a),(e). 

PLAINTIFF’S ELECTIONEERING COMMUNICATIONS 

3. Plaintiff has produced a film entitled Hillary: The Movie. (See Am. Compl. ¶ 14.) 

Plaintiff’s name and logo appear at the beginning of the film. (See Hillary: The Movie (available 

for viewing pursuant to Jan. 10, 2008 Order (Docket No. 37)).) 

4. Plaintiff’s film focuses on the ongoing presidential election, specifically Senator 

Hillary Clinton’s candidacy for President of the United States. For example: 

 

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a. “[S]he will run on attacking republicans, and being the first woman 

president — oh isn’t that amazing, she’s a woman she can walk and talk.” 

(Am. Compl. Exh. 2 at 1.) 

b. “Hillary Rodham Clinton. Could she become the first female President in 

the history of the United States?” (Id. at 5.) 

c. “Hillary Clinton points to her time in the White House as a large part of 

her qualification for the job as President.” (Id.) 

d. “Over the past 16 years Hillary Clinton has undoubtedly become one of 

the most divisive figures in America. How this makes her suited to unite 

the country as the next president is troubling to many.” (Id. at 6.) 

e. “There are any number of things in the Clinton’s political history worth 

recalling before you go in to potentially vote for a Clinton, in this case a 

Hillary Clinton.” (Id. at 9.) 

f. “Hillary’s got an agenda and she’s willing to put up with that to be 

[P]resident of the [U]nited [S]tates, she’s got a to do list when she gets to 

the White House.” (Id. at 21-22.) 

g. “I’m asking people to look at the record that is undisputed and to come to 

their own conclusions regarding the suitability of Hillary Clinton to 

acquire the highest office in this country.” (Id. at 32.) 

h. “As a presidential candidate, Hillary has made other promises that may 

also prove difficult to keep.” (Id. at 39.) 

i. “Both Clintons are well aware the war on terror could be [a] key issue in 

Hillary’s run for the presidency.” (Id. at 52.) 

j. “Sandy Berger was fined, lost his security clearance for 3 years, and 

disgraced, especially in Washington. But he has resurfaced. Reportedly, 

Berger is now an adviser to the presidential campaign of . . . Hillary 

Rodham Clinton.” (Id. at 57 (alterations omitted; ellipsis in original).) 

k. “I think the American people have a right to as much of a public record as 

possible about Hillary Clinton. Those records should be released before 

the 2008 elections so that we can learn a lot more about exactly how much 

influence she had in the White House, what her positions were in the 

White House, and how she acted in the White House.” (Id. at 60.) 

l. “Candidate Clinton claims she is the most experienced.” (Id. at 67.) 

m. “It’s worth remembering that a vote for Hillary is a vote to continue 20 

years of a Bush or a Clinton in the White House.” (Id. at 68.) 

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n. “Finally, before America decides on our next president, voters should need 

no reminders of . . . what’s at stake — the well being and prosperity of our 

nation.” (Id. at 69.) 

5. Hillary: The Movie is devoted to criticizing Senator Clinton’s character and 

arguing that she lacks the qualifications for, and is not fit to become, President of the United 

States. For example: 

a. “[S]he is steeped in controversy, steeped in sleaze, that’s why they don’t 

want us to look at her record.” (Id. at 2.) 

b. “After announcing her bid for the presidency, fellow Democrats including 

former Clinton confidant and Hollywood mogul David Geffen publicly 

questioned Hillary’s integrity and truthfulness.” (Id. at 7.) 

c. “So, who is the real Hillary Clinton? Is she a [ ] brilliant trailblazer, 

poised to make history as the first female president, or is she ruthless, 

cunning, dishonest — willing to do anything for power?” (Id. at 8.) 

d. “Is Hillary really the most qualified to hit the ground running if elected 

President? After all, she was First Lady for 8 years and now a Senator 

from New York. Referring to her opponents she’s said, quote, ‘there is 

one job we can’t afford on-the-job training for: that is the job of our next 

President.’” (Id. at 35-36.) 

e. “Hillary says we should elect her president because of her tremendous 

accomplishments in the United States Senate. . . . But is that the 

legislative gravitas and qualifications enough to elect her [P]resident of the 

[U]nited [S]tates? Is she kidding?” (Id. at 36.) 

f. “There’s one Hillary who says, ‘I’m gonna bring the troops home right 

away when I’m elected President’ and another Hillary who says, ‘I’m 

gonna keep troops in Iraq indefinitely.’ One of these two women is 

lying.” (Id. at 47-48.) 

g. “As much as those pardons reveal about Bill, an earlier pardon may have 

revealed even more about Hillary’s character — and her willingness to do 

anything to get elected.” (Id. at 61.) 

h. “It[’]s been said and I agree with it that this is the most personal political 

choice that Americans make. They want, they — their personality traits, 

their — will they consider a person that they could trust, that they would 

like, that they were comfortable with, and that’s [where] I think Hillary 

Clinton as a candidate has great defects.” (Id. at 69.) 

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i. “[I]f she weren’t married to Bill Clinton, what is there that she has 

accomplished in her life-that would lead you to believe that she should 

become the most powerful person in the country?” (Id. at 69-70.) 

j. “If she reverts to form, Hillary Clinton will likely be in the future what she 

has been in the past, which is a person, a woman, a politician of the left, 

and I don’t think that’s going to [be] good for the security of the United 

States.” (Id. at 70.) 

k. “I can tell you beyond a shadow of a doubt that uh, the Hillary Clinton that 

I know is not equipped, not qualified to be our commander in chief.” (Id. 

at 71.) 

l. “[W]e must not ever underestimate this woman. We must not ever 

understate her chances of winning. We mustn’t be lolled [sic] into a state 

of security and complacency by the new found moderation that she likes to 

talk about. And we must never forget the fundamental danger that this 

woman [poses] to every value that we hold dear.” (Id. at 72.) 

m. In addition to these oral statements, the film contains multiple visual 

attacks on Senator Clinton’s character — generally in the form of abridged 

newspaper headlines — that are not reflected in the written script. For 

example, thirty-seven seconds into the movie, after a montage of headlines 

containing the phrase “Mrs. Clinton,” the visual zooms in and lingers on 

the word “perjury” (omitting the remainder of the headline). Four seconds 

later, after a montage of headlines referring to the “First Lady,” the visual 

zooms in and lingers on the word “lies” (again omitting the remainder of 

the headline). 

6. Hillary: The Movie does not focus on legislative issues, and it does not take a 

position on an issue, exhort the public to adopt that position, and urge the public to contact 

public officials with respect to the matter; instead, the only focuses of the film are Senator 

Clinton’s character and fitness for office and her actions in relation to certain controversies 

during Bill Clinton’s presidency. (See, e.g., Am. Compl. Exh. 2 at 10-35 (discussing, inter alia, 

“travelgate”), 50-67 (discussing, inter alia, Bill Clinton’s presidential pardons).) Legislative 

issues are mentioned only in the context of critiquing Senator Clinton’s character and fitness for 

the presidency. (See, e.g., id. at 46-47 (discussing immigration debate and concluding that “it 

raised the question can you withstand the criticism . . . and if [you’re] gonna whine about people 

complaining about you, that doesn’t suggest presidential stature or character”); id. at 47-50 

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(discussing Iraq war and concluding that Senator Clinton is “not flipping and flopping. [S]he’s 

lying.”).) 

7. Hillary: The Movie is available for available for purchase by the general public on 

DVD, and it has been exhibited in movie theaters. (Bossie Aff. ¶¶ 5-6.) 

8. Several of these theater showings occurred in states that had already held their 

presidential primaries or conventions by the date of the exhibition. Compare Bossie Aff. ¶ 5 

(showings Feb. 11 in Wash., Mar. 4 in Fla., Apr. 3 in Calif., Apr. 21 in Ohio) with FEC, 

Electioneering Communications Periods, 

http://www.fec.gov/info/charts_ec_dates_prez.shtml#Presidential. 

9. On December 20, 2007, Plaintiff received a solicitation to pay to have Hillary: 

The Movie distributed for four weeks through a nationwide cable-television video-on-demand 

system. (Am. Compl. ¶ 28; see also Def.’s Exh. 8 (filed separately under seal).)26

10. Pursuant to this solicitation, the film would be broadcast on “Elections ’08” (Am. 

Compl. ¶ 28), which bills itself as a “breakthrough platform [that] allows you to speak directly to 

voters — 24/7 — in their own living rooms. By crafting and controlling your own long-form 

campaign message, you reach voters with no media dilution or bias.” Spot Cable, Elections ’08 

On Demand, http://www.spotcable.com/political_sub2.html (Def.’s Exh. 2). 

11. Plaintiff wishes to pay to distribute its film through this medium within the thirtyday period before the Democratic national convention. (See Am. Compl. ¶ 29.) 

12. No presidential primary or nominating convention is scheduled to take place until 

August 25, 2008. See FEC, Electioneering Communications Periods, 

http://www.fec.gov/info/charts_ec_dates_prez.shtml#Presidential. 

 

26 Because Plaintiff has insisted that the terms of the December 2007 offer remain 

confidential (see First Supp. to Pl.’s Resp. to FEC’s First Interrogs. at 5-6 (Def.’s Exh. 1)), this 

offer is being filed under seal. 

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13. Plaintiff wishes to promote its film through television advertisements. (Bossie 

Aff. ¶ 8.) 

14. These advertisements would mention Senator Clinton and would air on 

nationwide cable and network television within the thirty-day period before the Democratic 

national convention. (See id.) 

15. The audio of the first intended ad, a 10-second ad entitled “Wait,” is “If you 

thought you knew everything about Hillary Clinton . . . wait ’til you see the movie.” (Am. 

Compl. Exh. 1.) The second ad, a ten-second ad entitled “Pants,” includes a narrator saying 

“First a kind word about Hillary Clinton,” Ann Coulter saying “She looks good in a pant suit,” 

and then a narrator saying “Now a movie about everything else.” (Id.) The third, a thirty-second 

ad entitled “Questions,” contains three quotations regarding Senator Clinton, including Ann 

Coulter saying “[A]t least with Bill Clinton he was just good time Charlie. Hillary’s got an 

agenda,” and Dick Morris saying “Hillary is the closest thing we have in America to a European 

socialist.” (Id.) All three ads contain images of Senator Clinton and, at the end, the visuals 

“Hillary: The Movie” and “www.hillarythemovie.com” appear on the screen. (Id.) 

16. Plaintiff has stated that it would fund these advertisements from a bank account 

consisting solely of donations made for the purpose of furthering the production or distribution 

of electioneering communications (Am. Compl. ¶ 24), even though the use of a segregated 

account would likely increase Plaintiff’s reporting obligations. Compare 11 C.F.R. 

§ 104.20(c)(9) (reporting requirements for general treasury disbursements) with 11 C.F.R. 

§ 104.20(c)(7)(ii) (reporting requirements for disbursements from separate bank account). 

17. Since December 2006, twenty-eight individuals, two for-profit corporations, and 

three other entities have donated $1,000 or more to Plaintiff for the purpose of furthering the 

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production or distribution of Plaintiff’s electioneering communications. (First Supp. to Pl.’s 

Resp. to FEC’s First Interrogs. at 10-11 (Def.’s Exh. 1).) 

18. Four days after Senator Barack Obama won the Iowa presidential caucuses, 

Plaintiff announced its intent to produce and broadcast a “documentary” film about Senator 

Obama, as well as television advertising for that film. (See Mot. for Leave to File Aff. of David 

N. Bossie (Docket No. 35).) 

ABSENCE OF CONSTITUTIONAL BURDENS 

19. Citizens United Political Victory Fund (“CU-PVF”), is Plaintiff’s political 

committee (or “separate segregated fund”), and it is registered with the Commission as such. 

Citizens United Political Victory Fund, Statement of Organization (June 15, 1994) (Def.’s Exh. 

3). 

20. As a political committee, CU-PVF files with the Commission publicly available, 

monthly reports identifying, inter alia, the name and address of each person who has donated 

$200 or more to CU-PVF in that calendar year. 2 U.S.C. § 434(a)(4)(B),(b)(3). 

21. Since 1994, CU-PVF has filed approximately 160 reports, identifying a total of 

approximately 1,214 donations. Citizens United Political Victory Fund, All Campaign Finance 

Reports, http://query.nictusa.com/cgi-bin/fecimg/?C00295527 (Def.’s Exh. 4); Citizens United 

Political Victory Fund, Individuals Who Gave to This Committee, http://query.nictusa.com/cgibin/com_ind/C00295527/ (Def.’s Exh. 5). 

22. Citizens United also operates The Presidential Coalition, LLC, and 2007 

Conservative Victory Committee, which are entities holding tax-exempt status under section 527 

of the Internal Revenue Code. (See First Supp. to Pl.’s Resp. to FEC’s First Interrogs. at 10 n.2 

(Def.’s Exh. 1).) 

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23. As “527” organizations, these entities file annually with the Internal Revenue 

Service two to six publicly available reports listing, inter alia, the name, address, occupation, 

and employer of each person who has donated $200 or more to the organization in that calendar 

year. 26 U.S.C. § 527(j). 

24. Since 2005, The Presidential Coalition has filed ten reports, identifying a total of 

approximately 11,500 donations.27

25. Ten of the twenty-eight individuals who have contributed $1,000 or more to 

Plaintiff for the purpose of furthering Plaintiff’s electioneering communications have been 

publicly identified in IRS filings as donors to The Presidential Coalition. (First Supp. to Pl.’s 

Resp. to FEC’s First Interrogs. at 10-11 (Def.’s Exh. 1).) 

26. In addition, one individual and two other entities, who have donated a total of 

$173,500 to Plaintiff for the purpose of furthering Plaintiff’s electioneering communications, are 

identified in the credits of Hillary: The Movie. (Id.) 

27. Despite this extensive record of donor disclosure, there is no evidence before the 

Court that any of the persons who have been publicly identified as contributors to Plaintiff, CUPVF, or The Presidential Coalition have been subject to any threats, harassment, or reprisals as a 

result of their affiliation with Citizens United. 

28. Far from suffering reprisals, Plaintiff holds itself out as a well connected, 

mainstream organization. Joe Murray, Lawsuit Threatened Over CNN’s ‘Campaign Killers,’ 

The Bulletin (Dec. 6, 2007) (Def.’s Exh. 6) (quoting written statement by plaintiff’s spokesman 

that “Citizens United [is] hardly a ‘fringe’ group (unless consistent and open association with the 

 

27 The Presidential Coalition’s IRS filings are available by searching the IRS website at 

http://forms.irs.gov/politicalOrgsSearch/search/basicSearch.jsp. The Commission calculated the 

number of donations disclosed by multiplying the aggregate number of pages of donations in the 

reports (1,152) by the number of donations listed on each page (10). 

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9

former Speaker of the House, a current leading presidential candidate and numerous other 

leading Republicans can be considered ‘fringe’)”). Plaintiff has, in fact, threatened to file suit 

against a news organization for referring to Citizens United as a “fringe militia.” See Press 

Release, Citizens United to Sue CNN, http://www.citizensunited.org/press/?entryid=1972618 

(Dec. 4, 2007) (Def.’s Exh. 7). 

29. There is no evidence before the Court that the general public is misled by the 

electioneering communication disclosures or disclaimers. 

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David B. Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

Dated: June 6, 2008 

Case 1:07-cv-02240-RCL-RWR Document 55 Filed 06/06/2008 Page 63 of 71
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

CITIZENS UNITED, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civ. No. 07-2240 (ARR, RCL, RWR) 

 ) 

FEDERAL ELECTION COMMISSION, ) STATEMENT OF GENUINE ISSUES 

 ) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S STATEMENT OF GENUINE 

ISSUES AND OBJECTIONS TO PLAINTIFF’S STATEMENT OF MATERIAL FACTS 

Pursuant to LCvR 7(h) and 56.1, Defendant Federal Election Commission 

(“Commission”) submits the following statement of genuine issues in opposition to Plaintiff’s 

Statement of Undisputed Material Facts (“Pl.’s Facts”). The Commission’s statements below are 

presented in numbered paragraphs corresponding to the paragraph numbers in Plaintiff’s 

statement. 

1-9. No response. 

10. Hillary: The Movie is not “issue advocacy.” (See Def.’s Statement of Material 

Facts As To Which There Is No Genuine Dispute (“Def.’s Facts”) ¶¶ 4-6.) Furthermore, “[a]t 

the time of filing its complaint,” the film was not “slated for . . . cable on-demand broadcast.” 

(See Pl.’s Facts ¶ 40 (noting that offer for on-demand distribution was made on December 20, 

2007).) 

11. The transcript filed with the Court does not appear to be a “true and correct copy 

of the final transcript” of the film, for the filed transcript contains numerous placeholders (see, 

 

Case 1:07-cv-02240-RCL-RWR Document 55 Filed 06/06/2008 Page 64 of 71
e.g., Am. Compl. Exh. 2 at 2, 6, 9) and differs from the words actually spoken in the film. The 

filed document also omits description of many of the film’s visuals. 

12-13. No response. 

14. This statement is not supported by the record before the Court. First, Mr. 

Bossie’s “opinion” is improper in support of a motion for summary judgment. See Fed. R. Civ. 

P. 56(e)(1). Second, there has been no complete “inability” of Plaintiff to advertise its film in 

advance of theater screenings, as several of Plaintiff’s screenings have been held outside the 

electioneering communication periods, and therefore Plaintiff was free to advertise for them in 

the relevant markets. (Def.’s Facts ¶ 8.) Finally, for the same reason, it has not been 

“impossible” for Plaintiff to theatrically release its film. (See id. ¶¶ 7-8.) 

15. No response, except that the intentions of “HLW”1

 are immaterial to this action. 

16. First, because Hillary: The Movie is not issue speech, but rather is focused on 

criticizing Senator Hillary Clinton’s character, qualifications, and fitness for office (id. ¶¶ 5-6), 

Plaintiff’s assertion that its film regarding Senator Obama will “raise similar issues as Hillary” is 

vague and ambiguous. Second, if Plaintiff’s new film is released and broadcast in June or the 

first four weeks of July, it will not be an electioneering communication. (See id. ¶ 12.) Third, it 

is not “impossible to present the movie and ads to the Court now in a request for declaratory and 

injunctive relief” because Plaintiff can seek (and has sought) a declaratory judgment that all 

communications exempt from the electioneering communication funding restriction under FEC 

v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (“WRTL”), are exempt from the 

disclosure requirements. (See Am. Compl. ¶¶ 35-36.) Finally, to the extent the film or ads 

 

1

 “HLW” appears to refer to Human Life of Washington, Inc., another client of Plaintiff’s 

counsel. See http://www.jamesmadisoncenter.org/WA/Complaint-Final.pdf. The identical 

erroneous reference to HLW appears in Mr. Bossie’s affidavit (¶ 8). 

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regarding Senator Obama are not exempt from the funding restriction (i.e., are not “WRTL ads”), 

such communications are immaterial to this action. 

17. Plaintiff’s assertion that it “could not obtain an FEC advisory opinion . . . in the 

near future” is speculative, as nominations to fill the Commission’s vacancies were recently 

made by the President, 154 Cong. Rec. S3838 (May 6, 2008), and favorably reported to the full 

Senate, id. S4792 (May 22, 2008). In any event, if Plaintiff were to request an advisory opinion 

from the Commission upon completion of the film this month, there would be between four and 

eight weeks for the Commission to issue such an opinion before the next electioneering 

communication window opens. (See Def.’s Facts ¶ 12.) In addition, to the extent the film or ads 

regarding Senator Obama are not WRTL ads, such communications are immaterial to this action. 

18. There is no evidence before the Court supporting Plaintiff’s assertion that offers 

to purchase ‘infomercial’ airtime are made only after the relevant communication is finalized; 

instead, the evidence indicates that Plaintiff can purchase such airtime whenever it chooses to do 

so. (See Def.’s Exh. 8 (filed under seal); see also Def.’s Facts ¶ 10.) 

19. The disclosure requirements “d[o] not prevent anyone from speaking.” 

McConnell v. FEC, 540 U.S. 93, 201 (2003) (internal quotation marks and alteration omitted). 

Furthermore, both WRTL and the Commission’s regulations implementing that decision, see 11 

C.F.R. § 114.15, provide extensive guidance as to whether an electioneering communication is or 

is not the functional equivalent of express advocacy. In the unlikely event that Plaintiff remains 

unclear as to the permissibility of its next film and ads after they have been completed, Plaintiff 

may request an advisory opinion from the Commission and will receive a timely response. See 2 

U.S.C. § 437f(a). 

20. On December 20, 2007, the Commission’s brief stated: 

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Although plaintiff’s first two proposed ads appear to come within the 

WRTL exemption — thus placing Citizens United’s constitutional claim 

squarely before the Court as applied to those two ads — “Questions” 

poses a closer question that the Commission has not had an adequate 

opportunity to address. Moreover, the Commission has not been asked 

through the advisory opinion process (see 2 U.S.C. § 437f) to apply its 

new regulation to that or any other ad. Accordingly, the Commission is 

not yet prepared to present its full case on the merits concerning the 

“Questions” ad.” 

(Def.’s Mem. in Opp. to Pl.’s Mot. for Consol. at 8-9.) On January 8, 2008, the Commission’s 

brief stated: 

Although the Commission now agrees that “Questions” is a WRTL ad, . . . 

there was no reason for the Commission to address this issue in the 

context of plaintiff’s first preliminary injunction motion. The only 

question presented in the first motion was whether BCRA’s EC disclosure

provisions could constitutionally be applied to WRTL ads in general, and 

that question was already properly before the Court on the basis of 

plaintiff’s “Wait” and “Pants” ads alone. (See Def.’s Opp. to Pl.’s Mot. to 

Consol. at 9; see also Def.’s First P.I. Opp. at 17 n.7).) In other words, 

plaintiff’s first preliminary injunction motion purported to encompass all 

WRTL ads, and there were two such ads plainly presented by the 

Complaint, so whether “Questions” also met the WRTL definition had no 

bearing on the motion. Because (1) this determination was immaterial to 

the then-pending motion, (2) the appropriate application of the 

Commission’s new regulations was less immediately obvious as to 

“Questions” than it was as to the other ads alleged in the original 

Complaint . . . , and (3) the FEC’s Commissioners had begun to disperse 

for the holidays (as noted in the Commission’s motion for an extension of 

time to respond to the current motion), the Commission’s brief — filed 

five business days after plaintiff’s first motion — simply did not take a 

position about whether “Questions” qualifies as a WRTL ad. . . . 

The Commission agrees with plaintiff that “Questions” is a WRTL ad 

exempt from the funding restriction pursuant to 11 C.F.R. § 114.15(c). 

This analysis was slightly more complicated than it was for plaintiff’s 

“Wait” and “Pants” ads because, while the ten-second ads qualify for the 

safe-harbor of 11 C.F.R. § 114.15(b) by omitting any indicia of express 

advocacy and promoting a commercial transaction, “Questions” arguably 

addresses a candidate’s “character, qualifications, [and] fitness for office.” 

11 C.F.R. § 114.15(b). Thus, the safe harbor provision may not apply to 

“Questions,” but it is, “on balance,” susceptible of a reasonable 

interpretation as a commercial advertisement for Hillary: The Movie, 

rather than solely as an appeal to vote against Senator Clinton. 11 C.F.R. 

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§ 114.15(c). Accordingly, “Questions” is exempt from the funding 

restriction of 2 U.S.C. § 441b(a),(b)(2) . . . . 

(Def.’s Mem. in Opp. to Pl.’s Second Mot. for Prelim. Inj. at 11, 17.) 

21. In response to Plaintiff’s Amended Complaint, the Commission analyzed 

Plaintiff’s film and ads under the standard set forth in WRTL and the Commission’s regulations 

implementing that decision, 11 C.F.R. § 114.15. (See, e.g., Def.’s Mot. to Dismiss Counts 3 & 4 

of Pl.’s Am. Compl. at 4-10.) 

22. Both WRTL and the Commission’s implementing regulations, 11 C.F.R. § 114.15, 

provide extensive guidance as to whether an electioneering communication is or is not the 

functional equivalent of express advocacy. In the unlikely event that Plaintiff remains unclear as 

to the permissibility of its next film and ads after they have been completed, Plaintiff may 

request an advisory opinion from the Commission and will receive a timely response. See 2 

U.S.C. § 437f(a). There was no “delay” or “imprecision” in the analysis in the Commission’s 

briefs of Plaintiff’s film and the “Questions” ad; that analysis was conducted under the plain 

language of WRTL, supra ¶ 21, promptly upon Plaintiff’s addition of the funding restriction to 

this case, supra ¶ 20. 

23. Plaintiff’s film is susceptible of no reasonable interpretation other than as an 

appeal to vote against Senator Clinton, and it is therefore, at a minimum, the functional 

equivalent of express advocacy. (See Def.’s Facts ¶¶ 4-6.) 

24. The electioneering communication funding restriction permits Plaintiff to 

broadcast electioneering communications, provided that the funds are disbursed from Plaintiff’s 

separate segregated fund, or “PAC.” See 2 U.S.C. § 441b(b)(2)(C). Furthermore, Plaintiff may 

fund an electioneering communication from its general corporate treasury if that communication 

is susceptible of a reasonable interpretation other than as an appeal to vote for or against a 

5

Case 1:07-cv-02240-RCL-RWR Document 55 Filed 06/06/2008 Page 68 of 71
candidate. WRTL, 127 S. Ct. at 2667. To the extent that Plaintiff cites FEC Advisory Opinion 

2004-30 for any proposition regarding electioneering communications that are not the functional 

equivalent of express advocacy, that Advisory Opinion is immaterial because it was decided 

prior to WRTL. 

25-28. No response. 

29-30. Plaintiff’s advertisements would not have been electioneering communications if 

Plaintiff had broadcast them in the states where Plaintiff screened its film after the Democratic 

primary. (See Def.’s Facts ¶ 8.) Nor would Plaintiff’s advertisements be electioneering 

communications if Plaintiff were to broadcast them any time between now and the thirty days 

before the Democratic national convention. (Id. ¶ 12.) 

31. “Questions,” although exempt from the electioneering communication funding 

restriction, is not an “issue-advocacy ad.” See supra ¶ 20. There is no support in the factual 

record for Plaintiff’s allegations that “10-second ads [are] virtually impossible and 30-second ads 

extremely difficult to do” in light of FECA’s disclaimer requirements. Furthermore, the phrases 

“virtually impossible” and “extremely difficult” are vague, both within this paragraph and in 

relation to paragraph 39 of Plaintiff’s statement, which alleges that ten-second ads are 

“preclude[d]” and thirty-second ads must be “revise[d].” 

32. No response. 

33. Citizens United’s assertion based on “belief” is improper in support of a summary 

judgment motion. See Fed. R. Civ. P. 56(e)(1). 

34. The ads would be subject to the disclosure requirements because they would be 

electioneering communications under 2 U.S.C. § 434(f)(3). (See Pl.’s Facts ¶¶ 29, 33.) 

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35. Allegations “on information and belief” are improper in support of a motion for 

summary judgment, see Fed. R. Civ. P. 56(e)(1), and the cited newspaper article, which Plaintiff 

offers for the truth of its contents, is inadmissible hearsay. Fed. R. Evid. 801. In addition, the 

cited article was published on June 26, 1996, not June 12, 2007, and it is irrelevant and 

immaterial because it has nothing to do with Plaintiff. 

36. Plaintiff’s statement that it “will pay for the ads exclusively from a segregated 

bank account” (internal quotation marks omitted) is inconsistent with Plaintiff’s statement that it 

“will not make any electioneering communications” if it is subject to disclosure, for the use of a 

“segregated bank account” would likely increase Plaintiff’s disclosure obligations. Compare 11 

C.F.R. § 104.20(c)(9) (reporting requirements for general treasury disbursements) with 11 C.F.R. 

§ 104.20(c)(7)(ii) (reporting requirements for disbursements from separate bank account). 

37. Plaintiff’s assertions regarding “materially-similar ads” are so vague and 

ambiguous that they are irrelevant to this action. 

38. Plaintiff has not broadcast — and is not broadcasting — its advertisements even 

during the times when the electioneering communication regulations are inapplicable. (See Pl.’s 

Facts ¶ 33.) 

39. There is no support in the factual record for Plaintiff’s allegations that 

electioneering communication disclaimers and disclosures “mislead the public.” There also is no 

support in the factual record for Plaintiff’s allegation that electioneering communication 

disclaimers “preclude” Plaintiff from airing ten-second ads or require Plaintiff to “revise” its 

thirty-second ads. See supra ¶ 31. Finally, Plaintiff has not broadcast — and is not broadcasting 

— its advertisements even during the times when the electioneering communication regulations 

are inapplicable. (See Pl.’s Facts ¶ 33.) 

7

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8

40-41. No response. 

42. The electioneering communication funding restriction permits Plaintiff to 

broadcast electioneering communications, provided that the funds are disbursed from Plaintiff’s 

separate segregated fund, or “PAC.” See 2 U.S.C. § 441b(b)(2)(C). 

43-44. Plaintiff’s allegations regarding “constitutional rights” and a “remedy at law” are 

not statements of fact. 

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David B. Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: June 6, 2008 (202) 694-1650 

Case 1:07-cv-02240-RCL-RWR Document 55 Filed 06/06/2008 Page 71 of 71