Verified Complaint 1

United States District Court

District of Columbia

Citizens United,

1006 Pennsylvania Ave., SE

Washington, DC 20003,

Plaintiff,

v.

Federal Election Commission,

999 E Street, NW

Washington, DC 20463,

Defendant.

Case No.

THREE-JUDGE COURT

Verified Complaint for Declaratory and Injunctive Relief

Citizens United complains as follows:

Introduction

1. This is an as-applied challenge to the constitutionality of (a) § 201 of the Bipartisan

Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81, 88-89, entitled

“Disclosure of Electioneering Communications,” which added a new subsection “(f)” to

§ 304 of the Federal Election Campaign Act (“FECA”) that requires reporting of electioneering communications and (b) BCRA § 311, 116 Stat. 105, requiring that electioneering

communications contain “disclaimers.” See 11 C.F.R. § 110.11. BCRA § 201 is called herein

the “Reporting Requirement,” BCRA § 311 is called the “Disclaimer Requirement,” and

the requirements together are called the “Disclosure Requirements” for ease of identification. The Reporting Requirement is codified at 2 U.S.C. § 434(f). The Disclaimer Requirement is codified at 2 U.S.C. § 441d(a).
Verified Complaint 2

2. Citizens United intends to publish advertisements that will meet the statutory

definition of electioneering communications, 2 U.S.C. § 434(f)(3), but are not properly

considered electioneering communications for any purpose, including disclosure, because the

“ads may reasonably be interpreted as something other than as an appeal to vote for or against

a specific candidate, . . . are not the functional equivalent of express advocacy, and therefore

fall outside the scope of McConnell’s holding.” FEC v. Wisconsin Right to Life, 127 S. Ct.

2652, 2670 (2007) (“WRTL II”). The Disclosure Requirements are unconstitutional as applied

to such ads.

JURISDICTION AND VENUE

3. This Court has jurisdiction over this case, brought under 42 U.S.C. § 1983, 

pursuant to 28 U.S.C. §§ 1331 and 2201 and BCRA § 403, 116 Stat. at 113-14, because

Plaintiff “elects such provisions to apply to this action.” BCRA § 403(d)(2), 116 Stat. at 114.

4. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) and BCRA § 403,

116 Stat. at 113-14.

PARTIES

5. Plaintiff Citizens United is a nonstock, nonprofit (under 26 U.S.C. § 501(c)(4)),

membership, Virginia corporation with its principal office in Washington, District of

Columbia.

6. Defendant Federal Election Commission (“FEC”) is the government agency with

enforcement authority over FECA.

FACTS

7. Citizens United was founded in 1988. Its purpose is to promote the social welfare
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through informing and educating the public on conservative ideas and positions on issues,

including national defense, the free enterprise system, belief in God, and the family as the

basic unit of society. Its current annual budget is about $12 million. Citizens United has a

related § 501(c)(3) entity called Citizens United Foundation (“CUF”).

8. Citizens United is not a “qualified nonprofit corporation” because it receives

corporate donations and engages in business activities. See 11 C.F.R. § 114.10 (exempting

certain ideological, nonstock, nonprofit corporations from the electioneering communication

prohibition),

9. One of the principal means by which Citizens United fulfills its purposes is through

the production and distribution of documentary films. Its first major documentary film, in

2004, was entitled Celsius 41.11: The Temperature at Which the Brain Begins to Die. The

film was a conservative response to Michael Moore’s documentary Fahrenheit 9/11 and was

shown in over 100 theaters in 2004. It continues to be sold in DVD format.

10. In 2005, Citizens United and CUF co-produced Broken Promises: The United

Nations at 60, which was an exposé on the United Nations narrated by noted actor Ron

Silver. This film was released in DVD format.

11. In 2006, Citizens United and CUF co-produced two films: Border War: The

Battle Over Illegal Immigration and ACLU: At War With America. Border War had a limited

theatrical release and was sold on DVD. ACLU was released only in DVD format.

12. Broken Promises and Border War have competed for and won a number of

awards from the motion picture industry. Broken Promises won a Special Jury Remi Award

at the 2006 Houston International Film Festival. Border War won best feature documentary at
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the 2006 Liberty Film Festival, a Silver Remi Award at the 2007 Houston International Film

Festival, and best feature documentary film honors from the American Film Renaissance in

February 2007. Border War also qualified for consideration under the Academy of Motion

Picture Arts and Sciences demanding criteria for nomination to the 79th Academy Awards in

February 2007.

13. In 2007, CUF produced Rediscovering God in America, which is narrated by

Newt and Calista Gingrich. This film premiered in Washington, D.C., and New York City

and is now available in DVD format only. As of December 11, 2007, the film was the top

selling historical documentary on Amazon.com.

14. Citizens United is in the final stages of production on a feature length documentary film on Senator Hillary Clinton entitled Hillary: The Movie. This issue-advocacy film

will be released somewhere in the December 2007 to February 2008 time-frame and is slated

for both theaters and DVD sales. It includes interviews with numerous individuals and many

scenes of Senator Clinton at public appearances. It is about 90 minutes in length. It does not

expressly advocate Senator Clinton’s election or defeat, but it discusses her Senate record,

her White House record during President Bill Clinton’s presidency, and her presidential bid.

Some interviewees also express opinions on whether she would make a good president. A

compendium book is being published by Thomas Nelson Publishers, which has purchased the

book rights to the film and is paying Citizens United an advance royalty on sales. Neither of

the Disclosure Requirements applies to the documentary itself.

15. When Citizens United produced Celsius 41.11 in 2004, it ran national broadcast

ads promoting the film. The original version of the ads had images and sound bites of
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President George Bush and Senator John Kerry, but those images and sound bites had to be

deleted from the ads due to the electioneering communication prohibition. Prior to running

the ads, Citizens United received FEC Advisory Opinion 2004-30, stating that its film ads

would qualify as electioneering communications and would not be exempt under the Press

Exemption.

16. Citizens United intends to fund television ads (“Ads”) to promote Hillary: The

Movie that will meet the electioneering communication definition at 2 U.S.C. § 434(f)(3), see

¶ 17 infra, but will not properly be an electioneering communication for any purpose,

including disclosure, because the Ads “may reasonably be interpreted as something other than

as an appeal to vote for or against a specific candidate, . . . [is] not the functional equivalent

of express advocacy, and therefore fall[s] outside the scope of McConnell’s holding.” FEC v.

Wisconsin Right to Life, 127 S. Ct. 2652, 2670 (2007) (“WRTL II”). A true and correct

transcript of the Ads is attached. See Exhibit 1. Citizens United has not, and will not,

coordinate the production and broadcast of the Ads with any candidate, campaign committee,

political committee, or political party.

17. The Ads that Citizens United intends to broadcast will meet the electioneering

communications definition at 2 U.S.C. § 434(f)(3) and 11 C.F.R. § 100.29 because they (a)

will be broadcast on Fox News cable and major network stations so that they (b) will be

receivable by more than 50,000 persons, see http://gullfoss2.fcc.gov/ecd (Federal Communications Commission’s Electioneering Communications Database), in states where caucuses,

conventions, or primary elections will be selecting a Democratic party nominee, (c) will

clearly reference Senator Clinton, a presidential candidate, and (d) will be made within 30
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days before the following caucuses, conventions, or primaries in the identified states (with

electioneering communication periods indicated) where she will be on the ballot: Iowa

Presidential Caucus (12/04/07 - 01/03/08); New Hampshire Presidential Primary (12/09/07 -

01/08/08); Michigan Presidential Primary (12/16/07 - 01/15/08); Nevada Presidential

Caucus (12/20/07 - 01/19/08); South Carolina Presidential Primary (D) (12/27/07 -

01/26/08); Florida Presidential Primary (12/30/07 - 01/29/08). See http://www.fec.gov/info/charts_ec_dates_prez.shtml (electioneering communication periods).

18. Citizens United will broadcast the 30-second, issue-advocacy ad entitled “Questions” on Fox News cable, and may broadcast it on major television network stations, too.

Citizens United will broadcast the 10-second ads “Wait” and “Pants” on major television

network stations, but not on Fox News. The disclaimer language mandated by FEC rule, see

11 C.F.R. § 110.11, takes about 4 seconds to narrate, making 10-second ads virtually

impossible and 30-second ads extremely difficult to do and have any significant time left for

substantive communication.

19. Citizens United’s Ads will promote showings of Hillary: The Movie in theaters

and sales of Hillary in DVD format, which may be pre-ordered while the movie is in theaters,

and refer viewers to www.hillarythemovie.com for more information about the documentary

and how to see or purchase it. When publicly released, the DVD form of Hillary will be

available from major national retailers, such as Amazon.com.

20. Citizens United would like to begin broadcasting its Ads on Monday, December

17, 2007, and run them through the middle of January for its initial media buy. However,

because it will not run the Ads absent the requested relief from this Court, Citizens United
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intends to begin broadcasting its ads when it gets the relief requested herein and run them

through the middle of January for its initial media buy. If Senator Clinton becomes the

presidential nominee of her party, Citizens United will again plan to run the Ads (and

possibly materially-similar ads) on Fox News cable (and possibly other broadcast outlets)

within 30 days before the Democratic National Committee Convention (electioneering

communication period is 07/29/08 - 08/28/08) and within 60 days of the November general

election (electioneering communication period is 09/05/08 - 11/04/08). See

http://www.fec.gov/info/charts_ec_dates_prez.shtml. At these times, the Ads will also meet

the electioneering communication definition. Citizens United believes that these are the times

when the public’s interest in Senator Clinton will be at its peak, which is the key to maximizing box office and DVD sales for Hillary.

21. In addition to being protected issue advocacy, the Ads meet the requirements of

the recently-enacted FEC rule recognizing a commercial-transaction safe-harbor exception to

the electioneering communication prohibition because it (a) “[p]roposes a commercial

transaction, such as purchase of a book, video, or other product or service, or such as

attendance (for a fee) at a film exhibition or other event,” 11 C.F.R. § 114.15(b)(3)(ii); (b)

“[d]oes not mention any election, candidacy, political party, opposing candidate, or voting by

the general public,” id. at § 114.15(b)(1); and (c) “[d]oes not take a position on any candidate’s or officeholder’s character, qualifications, or fitness for office.” Id. at § 114.15(b)(2).

22. The Ads are subject to the Disclosure Requirements because the FEC recently

refused requests to exclude from the Disclosure Requirements “electioneering communications” that meet the Supreme Court’s issue-advocacy safe harbor, WRTL II, 127 S. Ct. at
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2667 (no-other-reasonable-interpretation test), or the FEC’s own commercial-transaction safe

harbor. See http://www.fec.gov/law/law_rulemakings.shtml#ec07 (rulemaking documents,

including requests to eliminate disclosure for ads not subject to electioneering communication prohibition).

23. One of the chief concerns with the Reporting Requirement is the disclosure of

donors who may then be subject to various forms of retaliation by political opponents. On

information and belief, the Clinton White House had in its possession over 1,000 FBI files on

political opponents. See, e.g., Neil A. Lewis, White House Got More Files Than Disclosed,

N.Y. Times, June 12, 2007 (available by query at google.com).

24. Citizens United will have donors that it will be required to disclose (as to name

and address), absent the judicial relief requested here, because it will pay for the Ads

“exclusively from a segregated bank established to pay for electioneering communications

permissible under 11 C.F.R. § 114.15” (rule implementing WRTL II by permitting corporate

electioneering communications), to which donors will have “donated an amount aggregating

$1,000 or more . . . since the first day of the preceding calendar year.” 11 C.F.R. § 104.20.

25. Citizens United intends to broadcast materially-similar ads mentioning public

figures who are candidates in materially-similar situations during future electioneering

communication periods when public interest is at a peak. There is a strong likelihood that

such similar situations will recur, given the facts that Plaintiff has engaged in similar activity

in the past and that such activity is common and regularly recurring for it—as are conflicting

electioneering communication periods.

26. Citizens United intends to broadcast its Ads without complying with the Disclo-
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sure Requirements, but it will not broadcast its Ads if it does not obtain the judicial relief

presently requested.

27. If Citizens United does not obtain the judicial relief presently requested, it will not

proceed with its activities as planned. Instead, it will be forced to include the compelled

speech of a disclaimer, which (a) requires it to mislead the public by identifying its speech as

electioneering speech when it is not because the U.S. Supreme Court has held that such

speech is not sufficiently related to elections to be regulated as electioneering and (b)

deprives Citizens United of valuable time in its short and expensive broadcast Ads, which

deprivation and burden is not justified by any constitutional or congressional authority.

Adding the disclaimer will preclude Citizens United from running its 10-second ads and will

require it to revise its 30-second ad so as to be much less effective—both as the issue

advocacy that it is and as a vehicle for promoting Hillary: The Movie. And Citizens United

will be compelled to file reports of its activity, which (1) requires it to mislead the public by

reporting its speech as electioneering speech when it is not because the U.S. Supreme Court

has held that such speech is not sufficiently related to elections to be regulated; (2) deprives

Citizens United of valuable time and resources in complying with reporting requirements,

which deprivation and burden is not justified by any constitutional or congressional authority;

and (3) will, in Citizens United’s belief based on long experience, substantially reduce the

number of donors and amount of donations to Citizens United because many potential donors

do not wish to be publicly so identified for a variety of legitimate reasons. In such an event,

Citizens United will be deprived of its constitutional rights under the First Amendment to the

United State Constitution by these substantial burdens on its highly-protected, core “political
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speech,” WRTL II, 127 S. Ct. at 2659 (twice), 2660, 2664, 2665 (thrice), 2666 (twice), 2669,

2671-74, and will suffer irreparable harm.

28. There is no adequate remedy at law.

Count 1

29. Citizens United realleges and incorporates by reference all of the allegations

contained in all of the preceding paragraphs.

30. As applied to (a) communications that may not be prohibited as electioneering

communications under WRTL II, 127 S. Ct. 2652, and (b) Citizens United’s Ads, the

Disclosure Requirements, i.e., BCRA §§ 201 and 311, are unconstitutional because the

activity is not “unambiguously related to the campaign of a particular federal candidate.”

Buckley, 424 U.S. at 80. Failing this threshold requirement, the Disclosure Requirements do

not come within congressional authority to regulate elections and are overbroad for sweeping

in First Amendment activity without authority.

31. As applied to (a) communications that may not be prohibited as electioneering

communications under WRTL II, 127 S. Ct. 2652, and (b) Citizens United’s Ads, the

Disclosure Requirements are unconstitutional under the First Amendment guarantees of free

expression and association.

PRAYER FOR RELIEF

Wherefore, Citizens United prays for the following relief:

1. a declaratory judgment declaring BCRA §§ 201 and 311 unconstitutional as applied

to (a) communications that may not be prohibited as electioneering communications under

WRTL II, 127 S. Ct. 2652, and (b) Citizens United’s Ads.
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2. a preliminary and permanent injunction enjoining the FEC from enforcing BCRA

§§ 201 and 311 as applied to (a) communications that may not be prohibited as electioneering

communications under WRTL II, 127 S. Ct. 2652, and (b) Citizens United’s Ads.

3. costs and attorneys fees pursuant to any applicable statute or authority; and

4. any other relief this Court in its discretion deems just and appropriate.
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VERIFICATION

I, David N. Bossie, declare as follows:

1. I am the Chairman of the Board and President of Citizens United.

2. I have personal knowledge of Citizens United and its activities, including those set

out in the foregoing Complaint, and if called upon to testify I would competently testify as to

the matters stated herein.

3. I verify under penalty of perjury under the laws of the United States of America

that the factual statements in this Complaint concerning Citizens United and its planned

activity are true and correct. Executed on December ____, 2007.

David N. Bossie

Citizens United
Complaint

Respectfully submitted,

\s\ James Bopp, Jr

James Bopp, Jr.

\s\ Richard E. Coleson

Richard E. Coleson*

\s\ Jeffrey P. Gallant

Jeffrey P. Gallant*

\s\ Clayton J. Callen

Clayton J. Callen*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

 *pro hac vice motion pending

Counsel for Plaintiff
Complaint

Exhibit 1—Citizens United’s Ads

“Wait”

:10

[Image(s) of HRC on screen]

If you thought you knew everything about Hillary Clinton . . . wait ’til you see the movie.

[Film Title Card]

[Visual Only] Hillary: The Movie. 

[Visual Only] www.hillarythemovie.com

“Pants”

:10

[Image(s) of HRC on Screen]

First, a kind word about Hillary Clinton: [Ann Coulter Speaking & Visual] She looks good in

a pant suit.

Now, a movie about everything else.

[Film Title Card]

[Visual Only] Hillary: The Movie

[Visual Only] www.hillarythemovie.com

“Questions”

:30

[Image(s) of HRC on Screen]

Who is Hillary Clinton?

[JEFF GERTH Speaking & Visual] [S]he’s continually trying to redefine herself and figure

out who she is . . . 

[ANN COULTER Speaking & Visual] [A]t least with Bill Clinton he was just good time

Charlie. Hillary’s got an agenda . . .

[DICK MORRIS Speaking & Visual] Hillary is the closest thing we have in America to a

European socialist . . .

If you thought you knew everything about Hillary Clinton . . . wait ’til you see the movie.

[Film Title Card]

[Visual Only] Hillary: The Movie. In theaters [on DVD] January 2007. 

[Visual Only] www.hillarythemovie.com
Complaint

Certificate of Service

I certify that on December ___, 2007, the foregoing document was provided in paper

format by hand delivery and certified mail, and in PDF format by email to the following:

Thomasenia P. Duncan, General Counsel

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20436

(202) 694-1650

email tduncan@fec.gov

On December ___, 2007, a copy of this document was “delivered promptly to the

Clerk of the House of Representatives and the Secretary of the Senate” as provided under

§ 403(a)(2) of the Bipartisan Campaign Reform Act of 2002, 116 Stat. 114, by hand delivery

to the following:

The Honorable Lorraine C. Miller

U.S. HOUSE OF REPRESENTATIVES

U.S. Capitol, Room H154

Washington, DC 20515

Secretary of the Senate Nancy Erickson

UNITED STATES SENATE

Washington, DC 20510

In addition, on December ___, 2007, a copy of this document and the summons was

sent by certified mail, as provided under Fed. R. Civ. P. 4(i), and provided by hand delivery

to the following:

Civil Process Clerk

UNITED STATES ATTORNEY’S OFFICE

501 Third Street, NW

Washington, DC 20530

Attorney General Michael B. Mukasey

U.S. DEPARTMENT OF JUSTICE

950 Pennsylvania Ave. NW

Washington, DC 20530

James Bopp, Jr.

BOPP, COLESON & BOSTROM