No. 08-205 

IN THE

Supreme Court of the United States 

CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

 

On Appeal From the United States District Court 

for the District of Columbia 

 

BRIEF OF AMICI CURIAE SENATOR JOHN 

MCCAIN, SENATOR RUSSELL FEINGOLD, 

FORMER REPRESENTATIVE CHRISTOPHER 

SHAYS, and FORMER REPRESENTATIVE 

MARTIN MEEHAN IN SUPPORT OF APPELLEE 

 

SETH P. WAXMAN SCOTT L. NELSON

RANDOLPH D. MOSS Counsel of Record 

WILMER CUTLER PICKERING BRIAN WOLFMAN

 HALE & DORR LLP PUBLIC CITIZEN

1875 Pennsylvania Ave., NW LITIGATION GROUP

Washington, DC 20006 1600 20th St., NW 

(202) 663-6000 Washington, DC 20009 

 (202) 588-1000 

ROGER M. WITTEN 

WILMER CUTLER PICKERING

 HALE & DORR LLP 

399 Park Ave. 

New York, NY 10022 

(212) 230-8800

 

February 2009 

ADDITIONAL COUNSEL LISTED ON INSIDE COVER
TREVOR POTTER FRED WERTHEIMER*

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Washington, DC 20036 DONALD J. SIMON*

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LAURA MACCLEERY & PERRY, LLP 

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ALAN B. MORRISON

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Washington, DC 20009 

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–––––––––––––––––––––––– *

 Counsel for Amici Senator Feingold and former Representatives Shays and Meehan. 
i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES..............................................ii 

INTEREST OF AMICI CURIAE.....................................1 

SUMMARY OF ARGUMENT ...........................................2 

ARGUMENT.........................................................................4 

I. The First Amendment Does Not Protect Citizens 

United’s Use of Corporate Funds to Finance the 

Functional Equivalent of Express Advocacy. .............4 

A. This Court Should Reject Citizens United’s 

Suggestion That It Overrule Austin v. 

Michigan Chamber of Commerce...........................4 

B. Citizens United’s Communications Are Not 

Protected by the Principles of MCFL....................9 

C. Citizens United’s Position That Justifications 

for Limits on Corporate Electioneering 

Vanish When Voters Must Choose to Expose 

Themselves to It Is Incorrect................................15 

II. The Application of BCRA’s Disclosure and 

Disclaimer Requirements to Electioneering 

Communications That Are Not Functionally 

Equivalent to Express Candidate Advocacy Is 

Constitutionally Permissible........................................19 

A. The Justifications for Disclosure 

Requirements That This Court Has Accepted 

Are Not Limited to Express Advocacy and Its 

Functional Equivalent. ...........................................20 

B. Citizens United’s “Burdensomeness” 

Arguments Are Unfounded. ..................................28 

CONCLUSION ...................................................................30 
ii 

TABLE OF AUTHORITIES 

Page(s) 

Cases: 

Austin v. Mich. Chamber of Commerce, 

494 U.S. 652 (1990) ............................................... passim 

Bay Area Laundry & Dry Cleaning Pension 

Trust Fund v. Ferbar Corp. of Cal., 

522 U.S. 192 (1997) ........................................................10 

Brogan v. United States, 522 U.S. 398 (1998)..................17 

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

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) ...................13 

Citizens Against Rent Control v. City of Berkeley, 

454 U.S. 290 (1981) ........................................................26 

Davis v. FEC, 128 S. Ct. 2759 (2007) ................................25 

FEC v. Beaumont, 539 U.S. 146 (2003) ..........6, 8, 9, 13, 14 

FEC v. Mass. Citizens for Life, Inc., 

479 U.S. 238 (1986) ............................................... passim 

FEC v. Nat’l Conservative Political Action Comm., 

470 U.S. 480 (1985) ........................................................13 

FEC v. Nat’l Right to Work Comm., 

459 U.S. 197 (1982) ..........................................6, 8, 13, 14 

FEC v. Wisc. Right to Life, Inc., 

127 S. Ct. 2652 (2007) ........................................... passim 

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978) ..........................................7, 8, 26, 27 

Harris v. United States, 536 U.S. 545 (2002).....................7 

IBP, Inc. v. Alvarez, 546 U.S. 21 (2005).............................5 

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

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995) ..................................................26, 27 

Planned Parenthood of Southeastern Pa. v. Casey, 

505 U.S. 833 (1992) ..........................................................8 

Rumsfeld v. Forum for Academic & Institutional 

Rights, 547 U.S. 47 (2006).............................................18 

TRW Inc. v. Andrews, 534 U.S. 19 (2001)........................10 

United States v. Harriss, 347 U.S. 612 (1954).................27 

Wisc. Right to Life, Inc. v. FEC, 

546 U.S. 410 (2006) ........................................................22 

Statutes and Regulations: 

2 U.S.C. § 434(c).......................................................28, 29, 30 

2 U.S.C. § 434(f)(3)(A)(i) .....................................................19 

2 U.S.C. § 441b.....................................................................11 

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81 

 § 201.................................................................................20 

 § 311.................................................................................20 

11 C.F.R. § 100.29(b)(3)(ii)..................................................18 

11 C.F.R. § 100.29(b)(7)(i)-(iii) ...........................................18 

11 C.F.R. § 114.10................................................................10 
INTEREST OF AMICI CURIAE1

Amici curiae, Senators John McCain and Russell 

Feingold and former Representatives Christopher Shays 

and Martin Meehan, were the principal sponsors of the 

Bipartisan Campaign Reform Act of 2002 (BCRA). 

Working together over the course of their public careers, 

they have devoted enormous time and energy to ensuring that our federal campaign finance laws are meaningful and not subject to wholesale evasion. Amici worked 

for seven years to enact BCRA to close loopholes in the 

then-existing system. They participated as intervening 

defendants in McConnell v. FEC, 540 U.S. 93 (2003), to 

defend the constitutionality of those loophole-closing 

measures. Senator McCain and former representatives 

Shays and Meehan also participated as amici curiae and, 

later, intervenors in the litigation commenced as Wisconsin Right to Life, Inc. v. FEC, which led to two decisions of this Court.2

 Messrs. Shays and Meehan have 

also been plaintiffs in a series of lawsuits in the federal 

courts of the District of Columbia seeking to compel the 

FEC to carry out its duty to promulgate regulations 

properly implementing BCRA. 

–––––––––––––––––––––––– 

Amici McCain, Feingold, Shays, and Meehan submit 

this brief because the arguments advanced by Citizens 

United threaten to undo much of what they accomplished 

in achieving the enactment of BCRA, to roll back long1 Amici curiae certify that no counsel for a party authored this 

brief in whole or in part and that no person or entity, other than 

amici or their counsel, has made a monetary contribution to the 

preparation or submission of this brief. The parties have filed letters 

consenting to the filing of this brief with the Clerk of the Court. 

2

 Senator Feingold did not participate in that case because he 

was the subject of the ads at issue. 
2 

standing provisions of the Federal Election Campaign 

Act (FECA) that predate BCRA, and even to jeopardize 

statutes requiring disclosure of corporate and union political and lobbying expenditures outside the field of candidate elections. Amici urge the Court to reject Citizens 

United’s far-reaching positions and instead apply settled 

principles establishing that restrictions on the use of 

corporate and union funds for express candidate advocacy and its functional equivalents are constitutionally 

permitted, and that the interest in informing voters of 

the moneyed interests behind candidate-related electionseason advertising is sufficient to sustain application of 

BCRA’s disclosure provisions to the entire range of electioneering communications defined in BCRA, as eight 

members of this Court held in McConnell. 

SUMMARY OF ARGUMENT 

Beyond the dispute over whether the contents of Hillary: The Movie are the functional equivalent of express 

advocacy—a factbound question that was thoroughly 

considered by the district court, with whose decision we 

agree for the reasons stated by the FEC and the court 

itself, and that we do not address further—this case presents several issues of great importance for the ongoing 

enforcement and administration of federal campaign finance laws. Acceptance of Citizens United’s positions 

would open the door to essentially unlimited corporateand union-funded election advocacy and would eviscerate 

disclosure provisions designed to alert the electorate to 

the interests that finance election-related messages. 

Citizens United contends that even assuming that 

Hillary: The Movie contains the functional equivalent of 

express advocacy, it should have been permitted to finance cable transmissions of the movie outside the constraints of BCRA. To support this position, it advocates 
3 

that the Court either overrule its decision in Austin v. 

Michigan Chamber of Commerce, 494 U.S. 652 (1990), 

significantly expand the scope of its holding in FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) 

(MCFL), or hold that regulation of the financing of “ondemand” cable transmissions of video programming containing candidate advocacy falls outside the justifications 

this Court has previously accepted for restrictions on 

funding of electioneering communications by business 

corporations and labor unions. 

None of these submissions has merit. Merely overruling Austin would not avail Citizens United because the 

application of BCRA to corporate- and union-financed 

communications that are the functional equivalent of express advocacy is supported not only by Austin, but also, 

much more directly, by this Court’s more recent decisions in McConnell and FEC v. Wisconsin Right to Life, 

Inc., 127 S. Ct. 2652 (2007) (WRTL II), neither of which 

the Court has been asked to overrule. Nor, in any event, 

does Citizens United offer the special justification necessary to support the overruling of this Court’s precedents. 

As for MCFL, Citizens United’s arguments would tear it 

from its moorings as a narrow ruling allowing advocacy 

by nonprofit corporations that do not accept donations 

from business corporations and unions, turning it into a 

loophole that would allow substantial use of corporate 

and union funds to support express advocacy and its 

equivalent. And Citizens United’s argument that candidate advocacy via on-demand video is so different from 

traditional advertising that it should be open to no-holdsbarred corporate and union financing of electioneering 

messages overlooks that such advocacy poses the same 

threats to the electoral system as does corporate funding 

of more traditional forms of election advocacy. 
4 

With respect to the advertisements for Hillary: The 

Movie, Citizens United’s arguments are just as unfounded and would be equally destructive of settled principles of campaign finance jurisprudence. With near unanimity, this Court has approved requirements for disclosure of the sources of funding of election-related messages because disclosure serves the electorate’s significant informational interests. Citizens United’s assertion 

that those interests are only present when the messages 

in question involve express advocacy or its equivalent are 

unsupported by any of this Court’s precedents. Rather, 

those interests are implicated by the full range of electioneering communications under BCRA, specifically including Citizens United’s ads bearing derogatory messages about a presidential candidate, targeted at voters 

in states in which she was competing in primary elections. And Citizens United’s hollow claims that it would 

be burdened by the disclosure and disclaimer requirements applicable to its ads under BCRA are flatly contradicted by this Court’s precedents. 

ARGUMENT 

I. The First Amendment Does Not Protect Citizens 

United’s Use of Corporate Funds to Finance the 

Functional Equivalent of Express Advocacy. 

A. This Court Should Reject Citizens United’s 

Suggestion That It Overrule Austin v. Michigan Chamber of Commerce. 

In its merits brief, Citizens United suggests for the 

first time that this Court resolve this case by overruling 

Austin v. Michigan Chamber of Commerce, in which the 

Court upheld a Michigan statute requiring for-profit 

corporations and unions to use segregated funds rather 

than treasury funds to finance express advocacy. Citizens United makes this request despite the failure of its 
5 

Jurisdictional Statement in this case to present any such 

issue. Indeed, the Jurisdictional Statement did not even 

cite Austin, and it limited the questions Citizens United 

wished to present to as-applied challenges to BRCA’s 

restriction on Citizens United’s use of its funds to transmit Hillary: The Movie by cable or satellite, and asapplied challenges to BCRA’s reporting and disclosure 

requirements (the same as-applied challenges Citizens 

United advanced in the district court). 

Even overlooking this omission, Citizens United’s 

current suggestion that repudiating Austin—the only 

decision its brief asks this Court to overrule—would be 

sufficient to decide this case in its favor is incorrect. Citizens United contends that even as to communications 

that are the functional equivalent of express advocacy—

indeed, even as to express advocacy itself—BCRA’s restriction on the use of corporate or union treasury funds 

to finance electioneering communications is unconstitutional. That is not, as Citizens United would have it, a 

conclusion the Court could reach by overruling Austin

alone. Rather, to arrive at that holding, the Court would 

have to overrule its more recent decision in McConnell v. 

FEC, because it was McConnell (not Austin) that held 

that the funding restrictions imposed by BCRA are facially constitutional, and the thrust of Citizens United’s 

argument is that those restrictions have no constitutional application to the use of corporate or union treasury funds to finance electioneering communications. Notably, overruling McConnell is a step that Citizens 

United does not ask the Court to take, despite extensively discussing various aspects of McConnell’s holdings. And it is a well-settled principle that this Court 

generally declines to overrule one of its decisions when 

no party has asked it to do so. See, e.g., IBP, Inc. v. Alvarez, 546 U.S. 21, 32 (2005). 
6 

Moreover, the McConnell majority’s holding that 

BCRA’s restrictions on the use of corporate and union 

treasury funds to finance electioneering communications 

are facially constitutional did not rest only, or even principally, on Austin. Rather, the majority invoked the 

Court’s campaign finance jurisprudence from Buckley v. 

Valeo, 424 U.S. 1 (1976), onward, with special emphasis 

on FEC v. National Right to Work Committee, 459 U.S. 

197 (1982), and FEC v. Beaumont, 539 U.S. 146 (2003). 

See McConnell, 540 U.S. at 203-06. The Court based its 

holding that there is a compelling interest supporting 

application of funding restrictions to express advocacy, 

and hence to its functional equivalent, on “our precedents,” id. at 205, not just on Austin. In light of McConnell’s reasoning as well as its holding, it is untenable to 

suggest that a surgical overruling of Austin, as opposed 

to a wholesale overruling of McConnell and the line of 

precedents on which it relied, would suffice to resolve 

this case. 

Citizens United’s suggested disposition of the case 

would also make a mockery of the controlling opinion in 

WRTL II. That opinion went to great pains to explicate a 

test for distinguishing electioneering communications 

that are not the functional equivalent of express advocacy (and hence, it held, may not be subjected to the 

funding restrictions of BCRA Title II), from those that 

are the functional equivalent of express advocacy, and 

hence fall within McConnell’s undisturbed holding that 

the funding restrictions are constitutional “to the extent 

that ... ads broadcast during the 30- and 60-day periods 

preceding federal primary and general elections are the 

functional equivalent of express advocacy.” McConnell, 

540 U.S. at 206; see WRTL II, 127 S. Ct. at 2670 (opinion 

of Roberts, C.J.). 
7 

The controlling opinion in WRTL II explicitly described its holding as “draw[ing] ... a line” between impermissible applications of the funding restrictions and 

permissible ones, id. at 2659, and establishing a “test to 

distinguish constitutionally protected political speech 

from speech that BCRA may proscribe.” Id. at 2665 (emphasis added). Moreover, the opinion defended the line it 

drew not only against arguments that it was insufficient 

to serve BCRA’s goals of preventing actual and apparent 

corruption, but also against the contention of the concurring Justices that it was too restrictive of speech. Id. at 

2669 n.7. The controlling opinion roundly rejected the 

latter view, insisting that a test that “affords protection 

unless an ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate” is adequate to protect First Amendment 

interests. Id. (emphasis in original). To erase that line 

only two years later with a holding that unlimited corporate and union funds may be used even for communications that are express advocacy or its functional equivalent would be, in the words of WRTL II, “a constitutional 

‘bait and switch.’” Id. at 2673. 

In any event, Citizens United’s argument for overruling Austin fails to identify the “special justification” required for this Court to overrule one of its precedents. 

Harris v. United States, 536 U.S. 545, 557 (2002). Citizens United’s brief argument for overruling Austin rests 

principally on its alleged inconsistency with the principles of Buckley v. Valeo and First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). Such claimed doctrinal inconsistency is hardly a “special justification,” see 

Harris, 536 U.S. at 557, especially when the supposedly 

inconsistent decisions preceded and were thoroughly 

considered in the decision at issue. See Austin, 494 U.S. 

at 657-58 (extensively discussing Buckley and Bellotti). 
8 

That the Court in McConnell (in an opinion coauthored 

by one of the Austin dissenters) reaffirmed the principle 

that the use of corporate funds for express candidate advocacy may be restricted and again specifically addressed both Buckley and Bellotti underscores that 

those decisions offer no special justification for overruling precedents of this Court. See McConnell, 540 U.S. at 

206 n. 88. 

In light of the 60-year history of the prohibition on 

use of corporate or union treasury funds for express advocacy and the string of this Court’s precedents that 

were either premised on or explicitly affirmed the constitutionality of this restriction—including Buckley, National Right to Work Committee, MCFL, Austin, Beaumont, McConnell, and WRTL II—it can hardly be suggested that the “evolution of legal principle” has “implicitly or explicitly left [Austin or McConnell] behind as a 

mere survivor of obsolete constitutional thinking.” 

Planned Parenthood of Southeastern Pa. v. Casey, 505 

U.S. 833, 857 (1992). 

Indeed, when this Court first considered BCRA in 

McConnell, Citizens United’s current counsel, who was 

then defending BCRA, repeatedly endorsed Austin’s 

holding and argued that it was “clear that the Constitution permits source-of-funding limits on corporate expenditures in connection with candidate elections.” Brief 

for the FEC, at 78, McConnell (No. 02-1674). Indeed, 

counsel told the Court that the record developed in 

McConnell, far from indicating some change in circumstances that undermined Austin, provided support for 

restrictions on corporate and union election expenditures 

that “dwarfed” the showing accepted in Austin, id. at 85-

86, and rejected the suggestion that Austin should be 

overturned even in part. Id. at 116. 
9 

Little more than five years later, the holding of 

McConnell and the reasoning of such cases as Austin

and Beaumont that supported it remain fully valid. 

There is no basis for suggesting that concerns about the 

potentially overwhelming, distorting, and corrupting influence of unleashing massive corporate and union war 

chests for use in unfettered express candidate advocacy 

are no longer compelling. That our electoral process 

would soon be dominated by corporate and union spending if the Court were to use this case as the occasion to 

roll back the longstanding prohibition on express advocacy by business corporations and unions is beyond serious question. 

B. Citizens United’s Communications Are Not 

Protected by the Principles of MCFL. 

Beyond its frontal assault on the proposition that the 

use of corporate funds for express advocacy or its equivalent may be restricted, Citizens United asks the Court 

to rewrite its precedents to permit Citizens United to 

engage in such advocacy as long as the corporate funds 

used for that purpose are outweighed by funds contributed by individuals. According to Citizens United, this 

Court’s holding in MCFL that ideological nonprofit organizations that accept no money from for-profit corporations may use their treasury funds for express advocacy should also protect Citizens United’s use of funds 

contributed by business corporations, as long as its 

communications are “funded predominantly by individuals.” Citizens United Br. 31. 

Citizens United made no such argument in this case 

before its merits brief in this Court. Nowhere in its papers in the district court or in its Jurisdictional Statement did it contend that the sources of funding on which 

it relied brought its speech within the protection of 
10 

MCFL. Indeed, Citizens United expressly informed the 

district court that it is “not a ‘qualified nonprofit corporation’ because it receives corporate donations and engages in business activities.” Plaintiff’s Statement of 

Undisputed Material Facts at 1, Citizens United v. FEC, 

No. 07-2240, D.E. 52 (D.D.C. filed May 16, 2008).3

 It 

made no effort to establish that, despite its acknowledged failure to meet the regulatory criteria for the exception embodying the MCFL principle, it nonetheless 

should receive the benefit of MCFL’s holding. Having 

failed to make the argument in the district court or in its 

Jurisdictional Statement, Citizens United has waived it. 

See Bay Area Laundry & Dry Cleaning Pension Trust 

Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 207-08 (1997); 

see also TRW Inc. v. Andrews, 534 U.S. 19, 33-34 (2001).4

Even if entertained, Citizens United’s belated reliance on MCFL should be rejected because it would 

transform a narrowly limited doctrine designed to protect groups that are truly independent of the interests of 

for-profit corporations and unions into an avenue for 

–––––––––––––––––––––––– 3

 “Qualified nonprofit corporation” is the FEC’s regulatory nomenclature for an MCFL corporation. See 11 C.F.R. § 114.10. 

4

 Citizens United’s failure to advance this argument in the district court inhibited the creation of a complete record that would 

have unearthed the full extent to which it has relied on corporate 

funds. Citizens United’s brief cites the organization’s interrogatory 

responses, which purport to establish that only two business corporations made contributions of $1000 toward Hillary: The Movie (see

Citizens United Br. 7), but those responses not only are apparently 

limited to earmarked contributions, but also reveal that significant 

contributions came from some “other noncorporate persons” who 

were not individuals. Id. Presumably those “noncorporate persons” 

were other organizations, which may in turn have been passing 

through funds donated by business corporations. 
11 

wholesale circumvention of restrictions on corporate 

electioneering expenditures and contributions. 

This Court’s decision in MCFL did not, as Citizens 

United suggests, establish the principle that funding of 

candidate advocacy by for-profit corporations is constitutionally protected as long as it is combined with a larger 

quantity of dollars contributed by individuals. Rather, 

the Court in MCFL identified “three features essential

to our holding that [MCFL] may not constitutionally be 

bound by [2 U.S.C.] § 441b’s restriction on independent 

spending.” MCFL, 479 U.S. at 263-64 (emphasis added). 

The third of those essential features was: 

MCFL was not established by a business corporation or a labor union, and it is its policy not to accept contributions from such entities. This prevents

such corporations from serving as conduits for the 

type of direct spending that creates a threat to the 

political marketplace. 

Id. at 264 (emphasis added). In other words, what the 

Court considered essential in MCFL was not that the 

organization received only a little corporate money or 

that its funding was mostly from individuals, but that it 

accepted no contributions from business corporations or 

labor unions, as a matter of policy. 

Similarly, in Austin, the Court rejected the argument 

that funding restrictions on candidate advocacy could not 

be applied to a non-profit corporation that received 

money from business corporations. The Court reiterated 

that each of the three characteristics identified in MCFL

was “crucial,” 494 U.S. at 662, and it found the organization at issue (the Michigan Chamber of Commerce) ineligible for MCFL’s constitutional exemption from restrictions on candidate advocacy expenditures in part 

“[b]ecause the Chamber accepts money from for-profit 
12 

corporations,” and therefore “it could ... serve as a conduit for corporate political spending” if permitted to use 

its treasury funds for advocacy. Id. at 664. The Court 

thus found it permissible to relegate the Chamber to advocacy through a segregated fund, which “cannot receive 

contributions from corporations.” Id. at 664 n.3 (emphasis added). 

McConnell, too, emphasized that MCFL exempts only a “carefully defined category of entities,” 540 U.S. at 

210, from the requirement that candidate advocacy by 

corporations be paid for from segregated funds contributed by individuals. And it repeated that one of the “central” requirements of MCFL is that an organization have 

a policy of not accepting contributions from business 

corporations or labor unions. Id. at 210-11. Similarly, in 

WRTL II, the controlling opinion declined to consider 

the argument that MCFL supported the as-applied challenge in that case “because WRTL’s funds for its ads 

were not derived solely from individual contributions.” 

127 S. Ct. at 2673 n.10 (emphasis added). 

Accepting Citizens United’s argument that a little 

corporate funding of candidate advocacy must be permitted—or even a substantial amount, as long as it is not 

“predominant”—would have serious deleterious effects 

on federal campaign finance law and allow widespread 

circumvention of critical provisions previously upheld by 

this Court. Citizens United’s argument would apply 

equally to express advocacy as well as to electioneering 

communications that are the functional equivalent of express advocacy. Cf. McConnell, 540 U.S. at 210 (noting 

that MCFL necessarily applies both to electioneering 

communications under BCRA and to traditional expressadvocacy expenditures under FECA). Thus, the implication of Citizens United’s argument is not only that non-
13 

profit organizations may freely finance candidate advocacy with a mix of funds contributed by business corporations and individuals as long as most of the money 

comes from the latter, but also that (1) business corporations and unions may pay for express advocacy through 

accounts to which they have contributed their own treasury funds, as long as contributions from individuals predominate; (2) independent political committees that engage in express advocacy (and possibly multicandidate 

committees that make contributions to candidate committees) must be free to accept corporate funds as long 

as individual contributions predominate; and (3) BCRA’s 

prohibitions on the use of “soft money” by political parties for federal election activity (upheld in McConnell) 

must be modified to allow some corporate soft-money 

contributions toward such activity as long as they do not 

predominate over individual contributions. 

In short, Citizens United’s argument would upset 

both the requirements that election expenditures be 

funded through truly “segregated” funds and the prohibitions on use of corporate and union funds for expenditures by political committees—provisions that are supported by a long line of this Court’s decisions. See 

McConnell, 124 S. Ct. at 204-11; Beaumont, 539 U.S. at 

162-63; Austin, 494 U.S. at 658-65; Nat’l Right to Work 

Comm., 459 U.S. at 201-202; Cal. Med. Ass’n v. FEC, 453 

U.S. 182 (1981). The effect of accepting Citizens United’s 

view would be to permit the mobilization and unleashing 

of “political war chests funneled through the corporate 

form,” FEC v. Nat’l Conservative Political Action 

Comm., 470 U.S. 480, 501 (1985), as corporations would 

be free to use essentially unlimited amounts of their 

treasury funds to back candidate advocacy, as long as 

those funds were parceled out among nonprofit organizations or political committees in such a way that any par-
14 

ticular piece of advocacy was not paid for “predominantly” with corporate funds. In effect, MCFL would be 

transformed into little more than a “matching” requirement: Every dollar of corporate or union funds supporting express advocacy would have to be matched by something more than a dollar (how much more is unclear) 

contributed by an individual. 

The compelling interest in preventing corruption and 

the appearance of corruption that is served by “barring 

corporate earnings from being converted into political 

‘war chests,’” Beaumont, 539 U.S. at 154, as well as the 

interest in preventing nonprofit organizations from becoming conduits for the evasion of campaign finance law, 

id. at 155, thus demand rejection of Citizens United’s 

proposed expansion of MCFL. As in Beaumont and National Right to Work Committee, the Court should not 

“second-guess a legislative determination as to the need 

for prophylactic measures where corruption is the evil 

feared.” Beaumont, 539 U.S. at 157 (quoting Nat’l Right 

to Work Comm., 459 U.S. at 210). 

Respect for Congress’s judgment in this respect is 

counseled not only by the interests served by the funding 

restriction, but also by the absence of any principled and 

workable basis on which a court that accepted Citizens 

United’s invitation to allow some corporate or union 

funding could proceed to determine how much corporate 

or union money is too much. Moreover, because both the 

amount and percentage of corporate or union contributions to any particular organization would vary from 

year to year—and even from communication to communication—the quest to determine “predominance” would 

become, at least, an annual event. The Court should 

therefore adhere to the bright-line constitutional principle established by its precedents: Congress may disallow 
15 

any use of funds from business corporations or labor unions to pay for express advocacy and its equivalent. 

C. Citizens United’s Position That Justifications for Limits on Corporate Electioneering 

Vanish When Voters Must Choose to Expose 

Themselves to It Is Incorrect. 

Leaving aside its pleas for overruling Austin or dramatically extending MCFL, Citizens United’s principal 

argument seems to be that the justifications for restrictions on corporate and union funding of express advocacy 

or communications that are its functional equivalent vanish when the advocacy takes the form not of broadcast 

ads that are imposed on television viewers, but “narrowcast” advocacy that members of the public must first 

choose to view (enticed, at least in this case, by ads that 

are themselves electioneering communications).5 Although the principal focus of the congressional deliberations leading to passage of BCRA’s electioneering communications provisions was traditional ads, the interests 

that provide constitutional justification for the funding 

restriction are fully applicable to communications that 

recipients must choose to receive. 

–––––––––––––––––––––––– 5

 Citizens United also questions whether its particular advocacy 

would threaten to create actual or apparent corruption because Senator Clinton’s principal opponent in the primaries, President Obama, 

likely would not perceive Citizens United’s communications as supportive of his own candidacy. See Citizens United Br. 41. But this 

Court has never suggested that the justifications for limits on corporate express advocacy and its equivalent depend on whether one can 

identify a specific candidate who would likely be corrupted by a particular expenditure. In any event, Citizens United’s argument assumes, wrongly, that only Senator Clinton’s primary opponents, and 

not potential Republican opponents in the general election, would be 

favorably influenced by Citizens United’s spending to defeat her. 
16 

Indeed, that ads are imposed on viewers unwillingly 

is not one of the reasons that this Court has relied on in 

holding that corporations and unions can be prohibited 

from using their treasury funds to finance candidate advocacy. The Court has identified two principal justifications for that restriction: that there is a significant potential for corruption or its appearance if candidates 

benefit from large-scale corporate or union expenditures 

supporting them or targeting their opponents, and that 

the electoral process should be protected from “the corrosive and distorting effects of immense aggregations of 

wealth that are accumulated with the help of the corporate form and that have little or no correlation to the 

public’s support for the corporation’s political ideas.” 

McConnell, 540 U.S. at 205 (quoting Austin, 494 U.S. at 

660). Both are equally applicable to means of electoral 

persuasion that voters must take some initiative to access. 

Acceptance of Citizens United’s argument would 

have potentially far-reaching and undesirable consequences. The argument, like the MCFL argument, cannot be confined to electioneering communications, but 

would extend to independent expenditures for express 

advocacy as well. Thus, Citizens United’s reasoning 

would appear equally applicable, for example, to fullscale express advocacy over the Internet (where access 

to content is typically user-initiated), and it would thereby open the door to unlimited corporate and union expenditures using the web to explicitly urge votes for and 

against candidates.6

 The same would be true of any cor-

–––––––––––––––––––––––– 

(Footnote continued) 

6

 As the FEC notes (FEC Br. 26 n.8), the FEC has been cautious in extending FECA’s and BCRA’s provisions to the Internet, 

and the electioneering communications provisions do not apply to 

the web. The regulations cited by the FEC, however, do not exempt 
17 

porate- or union-funded express advocacy in any form—

written, audio, or video—where a voter exercised choice 

before receiving it. Indeed, Citizens United’s reasoning 

would seem to protect corporate-funded telephone banks 

that called voters, asked if they were interested in hearing a message about Candidate X, and then, if the voter 

said yes, launched into express advocacy. 

The majority in McConnell observed that when it 

comes to elections, “Money, like water, will always find 

an outlet.” 540 U.S. at 224. Congress cannot, of course, 

always anticipate precisely what that outlet will be. But 

when, as here, it has enacted legislation principally motivated by one practice (corporate and union funding of 

broadcasts and cablecasts of ads containing candidaterelated advocacy) that is equally applicable by its terms 

to another practice (corporate and union funding of ondemand cablecasting of programming containing candidate-related advocacy), and when that other practice 

poses exactly the same threats of potential corruption of 

the electoral process, there is no reason to limit Congress’s enactment to the precise evil that prompted its 

passage. Cf. Brogan v. United States, 522 U.S. 398, 403 

(1998) (“[T]he reach of a statute often exceeds the precise evil to be eliminated”). 

Although its constitutional arguments are unfounded, 

Citizens United has also raised a question about whether 

on-demand cable “narrowcasting” of Hillary: The Movie

–––––––––––––––––––––––– 

Internet communications from the restriction on the use of treasury 

funds of business corporations and unions to finance “expenditures” 

(i.e., express advocacy). Citizens United’s reasoning, by contrast, 

would place any Internet site accessed at the choice of a user constitutionally off-limits from any restrictions on the use of corporate or 

union funds. 
18 

would have met the FEC’s regulatory definition of 

transmission of an electioneering communication. According to Citizens United, each individual on-demand 

transmission of the program would have been received 

only by the household that ordered it, but the regulatory 

definition of an electioneering communication requires 

that a transmission be capable of receipt by 50,000 persons in the state where the election is imminent. See 

Citizens United Br. 26-27 n.2 (citing 11 C.F.R. 

§ 100.29(b)(3)(ii)). Because this Court’s consideration of 

the constitutionality of a statutory or regulatory restriction may require, as an antecedent, determining what 

the challenged law actually provides, Rumsfeld v. Forum 

for Academic & Institutional Rights, 547 U.S. 47, 56 

(2006), Citizens United’s failure to raise this point before 

does not necessarily bar this Court from reaching it. 

As the FEC points out, however, if Hillary: The 

Movie had been distributed through an on-demand cable 

channel, it would have been available to all subscribers of 

a cable system with access to on-demand programming, 

and the regulatory definition of what it means for a 

transmission to be capable of being viewed by the requisite number of persons is based primarily on the number 

of subscribers of the system. See FEC Br. 23-24 n.7; 11 

C.F.R. § 100.29(b)(7)(i)-(iii). The FEC’s interpretation of 

its own regulation appears reasonable even though the 

Commission may not have specifically considered application of the regulations to on-demand programming 

when promulgating them. 

To the extent that there may be some ambiguity in 

the applicability of the regulations, the Court could possibly conclude that it is sufficiently doubtful that ondemand viewing of Hillary: The Movie would have been 

within the scope of the FEC’s current regulations that 
19 

the Court should withhold judgment on the constitutional issue until such time as the FEC made a more 

specific regulatory determination to include such transmissions within the regulatory definition of electioneering communications. In no event, however, should the 

Court accept Citizens United’s broad constitutional arguments that would place even express advocacy beyond 

the bounds of regulation if it is accessed at the choice of 

the viewer. 

II. The Application of BCRA’s Disclosure and Disclaimer Requirements to Electioneering Communications That Are Not Functionally Equivalent to Express Candidate Advocacy Is Constitutionally Permissible. 

Citizens United’s proposed broadcast advertisements 

for Hillary: The Movie, though not containing the functional equivalent of express advocacy within the meaning 

of WRTL II, prominently mentioned Senator Clinton 

and were intended to be aired shortly before primary 

elections in which she was a candidate for office and/or 

the national party convention that would determine the 

nomination for that office. The ads would thus, without 

question, have been electioneering communications under BCRA, see 2 U.S.C. § 434(f)(3)(A)(i), and the FEC’s 

implementing regulations. Equally unquestionable is 

that the ads commented negatively on Senator Clinton’s 

character and fitness for office, either explicitly or by insinuation. Nothing in this Court’s decisions suggests that 

measures aimed at disclosing to the public the origin of 

these broadcast messages and the identity of those who 

financed them are unconstitutional. 
20 

A. The Justifications for Disclosure Requirements That This Court Has Accepted Are Not 

Limited to Express Advocacy and Its Functional Equivalent. 

Citizens United’s basic submission is that unless a 

communication falls within the class as to which Congress may permissibly impose restrictions on corporate 

funding—that is, express advocacy or its functional 

equivalent—there is no legitimate justification for disclosure provisions, either. Citizens United’s position is flatly 

at odds with this Court’s jurisprudence. 

In McConnell, eight Justices voted to uphold the facial constitutionality of § 201 of BCRA, the basic provision requiring those who disseminate electioneering 

communications to disclose contributions made to support them. The five-Justice majority found disclosure to 

be justified by “the important state interests that 

prompted the Buckley Court to uphold FECA’s disclosure requirements—providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to 

enforce more substantive electioneering restrictions.” 

540 U.S. at 196. The three concurring Justices did not 

believe that either the enforcement or anti-corruption 

rationales applied to electioneering communications, but 

they agreed that the disclosure requirement “does substantially relate to” the interest in providing the electorate with information, and that this substantial relationship “assures its constitutionality.” Id. at 321 (Kennedy, 

J., concurring in the judgment in part and dissenting in 

part).7

–––––––––––––––––––––––– 

(Footnote continued) 

7

 What Citizens United refers to as the “disclaimer” requirement of BCRA § 311—which requires electioneering communica-
21 

Notably, the three Justices who concurred on this 

point did so even though they saw no interests sufficient 

to justify the application of corporate funding restrictions to electioneering communications—a position directly at odds with Citizens United’s view that the justifications for disclosure extend only to communications as 

to which funding restrictions are also justified. Similarly, 

the majority opinion nowhere suggested that the justification for the disclosure requirements was limited to 

electioneering communications that are the functional 

equivalent of express advocacy. In short, eight Justices 

accepted the disclosure requirements in McConnell

without intimating any support for Citizens United’s position that Congress’s power to impose disclosure requirements is coextensive with its power to restrict funding of communications. 

Moreover, the majority’s treatment of the disclosure 

requirements was quite different from its analysis of the 

corporate funding restriction, where it limited its holding 

that the restriction was facially constitutional by noting 

that the justifications for the restriction are applicable 

“to the extent that the issue ads broadcast during the 30- 

and 60-day periods preceding federal primary and general elections are the functional equivalent of express 

advocacy.” 540 U.S. at 206. By contrast, the majority 

identified no such limits on the justifications for the disclosure provisions, and concluded that they were facially 

constitutional because, absent evidence that their appli-

–––––––––––––––––––––––– 

tions not authorized by candidate committees to identify who paid 

for them and state that they were not authorized by a candidate 

committee—was similarly upheld by eight Justices who found that it 

“bears a sufficient relationship to the important governmental interest of ‘shed[ding] the light of publicity’ on campaign financing.” 540 

U.S. at 231 (opinion for the Court of Rehnquist, C.J.). 
22 

cation in a particular case was reasonably likely to lead 

to threats, harassment, or reprisals against contributors 

(id. at 198-99), the interests served by disclosure “amply 

suppor[t] application of [the] disclosure requirements to 

the entire range of ‘electioneering communications’”—

not just those that are equivalent to express advocacy. 

Id. at 196. 

McConnell did not, of course, decide as-applied challenges that were not before it. See Wisc. Right to Life, 

Inc. v. FEC, 546 U.S. 410 (2006). But the reasoning used 

by the Court in rejecting the facial challenge to BCRA’s 

disclosure provisions is inconsistent with this particular

as-applied challenge. In contrast, the controlling opinion 

in WRTL II held that McConnell’s reasoning in rejecting 

the facial challenge to BCRA’s funding restrictions for 

electioneering communications was not inconsistent with 

the as-applied challenge in WRTL II. 

With respect to the funding restrictions, the Court 

held in McConnell that the statute was not facially overbroad because it could be validly applied to communications that were the functional equivalent of express advocacy, and the Court was not convinced that the possible unconstitutional applications outside that realm were 

substantial in relation to the statute’s legitimate sweep. 

See 540 U.S. at 207. In WRTL II, the controlling opinion 

concluded that that holding necessarily left room for an 

as-applied challenge to application of the restrictions to 

communications that were asserted not to be functionally 

equivalent to express advocacy. See 127 S. Ct. at 2659-60. 

By contrast, with respect to disclosure, the reason 

that McConnell rejected the facial challenge was not 

simply that there were a substantial number of permissible applications of the disclosure provision, but that the 

justifications for disclosure applied to the “entire range 
23 

of ‘electioneering communications,’” McConnell, 540 U.S. 

at 196, except where the result would be harassment, 

threats or reprisals. That reasoning is inconsistent with 

the as-applied challenge advanced here, and there is 

nothing novel in recognizing that the reasoning of a decision finding a statute facially constitutional may determine the outcome of subsequent as-applied challenges. 

See, e.g., WRTL II, 127 S. Ct. at 2664 (recognizing that 

resolution of an as-applied challenge is “informed by our 

precedents” and that McConnell’s holding would doom 

an as-applied challenge to the application of BCRA’s 

electioneering communication funding restrictions to 

“express advocacy or its functional equivalent”). 

Nor does the Court’s holding in WRTL II call into 

doubt the constitutionality of applying the disclosure 

provisions to electioneering communications that fall 

short of being the functional equivalent of express advocacy. The controlling opinion in WRTL II acknowledged 

that advertisements that are not the functional equivalent of express advocacy may be intended to influence 

elections and may have actual effects on elections, and 

that it may be exceedingly difficult to distinguish ads 

with that intent and effect from electorally neutral ones. 

127 S. Ct. at 2664-69. But because the Court was considering what the controlling opinion regarded as a prohibition on speech by corporate speakers, it adopted a narrow, objective test for determining when a communication constitutes the functional equivalent of express advocacy, premised on the notion that “[w]here the First 

Amendment is implicated, the tie goes to the speaker, 

not the censor,” and that “[d]iscussion of issues cannot 

be suppressed because the issues may also be pertinent 

in an election.” Id. at 2669 (emphasis added). In short, 

the controlling opinion in WRTL II was determining 

what justifications would support a “ban” on protected 
24 

speech, and its conclusions reflected the view that in deciding such an issue “we give the benefit of the doubt to 

speech, not censorship.” Id. at 2674. 

The controlling opinion’s conclusion that speech must 

be the functional equivalent of express advocacy before 

the interests identified as compelling in McConnell, Austin, and Buckley justify a prohibition on corporate funding by no means suggests that lesser measures can only 

be sustained for the same type of speech. Rather, the 

undoubted electoral effects of advertisements that discuss candidates in proximity to an election, which were 

described in detail in the majority opinion in McConnell, 

540 U.S. at 126-30, 193-94, and nowhere denied in the 

controlling opinion in WRTL II, are more than sufficient 

to support disclosure requirements on informational 

grounds alone. An electorate bombarded with messages 

about candidates in the run-up to an election has an obvious interest in knowing what moneyed interests lie behind them so that it can evaluate in a more informed 

manner whether, and to what extent, the messages 

should influence voting. See Buckley, 424 U.S. at 66 (relying on the interest of the voting public in knowing 

“where political campaign money comes from”). Indeed, 

that is undoubtedly why eight Justices of this Court saw 

little difficulty in upholding the disclosure provision (and 

even less difficulty in sustaining the so-called “disclaimer” provision) in McConnell. 

In this specific case, the interest in disclosure is evident. The advertisements in question were to be run during the primary season in states where Senator Clinton 

was on the presidential primary ballot. Each advertisement either contained direct negative statements about 

Senator Clinton’s political views or insinuated that there 

was negative information that members of the public 
25 

could learn more about if they viewed Hillary: The Movie, which, as the district court found, is itself a thoroughgoing critique with the theme that Senator Clinton was 

unfit for the office for which she was running. Moreover, 

the ads themselves discuss no “issues” other than the 

“issue” of Senator Clinton herself, a subject pertinent 

first and foremost to the imminent elections. 

Under such circumstances, viewers of the ads would 

have an obvious and legitimate interest in knowing who 

was—and was not—behind them. It would be important, 

for example, to know that the ads were not the work of 

the campaigns of either her Democratic rivals in the 

primaries or her potential Republican opponents in the 

general election (hence the disclaimer). Beyond that, 

there would be an obvious interest in finding out both 

who paid for the ads (Citizens United) and who supplied 

the money behind that innocuous-sounding name, so that 

members of the public could help place Citizens United 

“in the political spectrum” (Buckley, 424 U.S. at 67) and 

identify the interests it represents—all with the goal of 

providing themselves more information to assist in evaluating the credibility of its critique of the Senator and 

determining whether to seek more information from this 

source. Nothing in this Court’s jurisprudence suggests 

that such interests are insufficient to justify disclosure 

here.8

–––––––––––––––––––––––– 

(Footnote continued) 

8

 The Court’s recent decision in Davis v. FEC, 128 S. Ct. 2759 

(2007), notwithstanding Citizens United’s repeated citations, does 

not suggest that the interests that support disclosure here are insufficient. In Davis, the only interest served by the disclosure provisions the Court struck down was to make possible implementation of 

the substantive provisions of the “Millionaire’s Amendment,” which, 

the Court held, were themselves unconstitutional. See id. at 2775. 

That implementation of unconstitutional restrictions is not a suffi-
26 

Indeed, the Court has long recognized the legitimacy 

of disclosure requirements much further removed from 

express candidate advocacy than the ones at issue here. 

For instance, in Bellotti,—the very decision that sustained the right of corporations to engage in issue advocacy and that lies at the core of WRTL II’s holding that 

corporate funding of speech that is not the functional 

equivalent of express candidate advocacy cannot be prohibited—the Court recognized that where corporate issue advertising is concerned, “[i]dentification of the 

source of advertising 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,” and that 

the government may rely on “the prophylactic effect of 

requiring that the source of communication be disclosed.” Bellotti, 435 U.S. at 792 n.32 (citing Buckley, 424 

U.S. at 66-67). Similarly, in Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981) (CARC), 

while holding that limits on contributions to a committee 

formed for ballot measure issue advocacy were unconstitutional, the Court stressed that, even absent those limits, the government could protect the interest in informing voters of the committee’s sources of funding by enforcing disclosure provisions. Id. at 298-99. 

Citizens United characterizes these statements in 

Bellotti and CARC as “dicta,” Citizens United Br. 55-56, 

but they were nonetheless important to the Court’s explanations of its holdings. Moreover, in McIntyre v. Ohio 

Elections Comm’n, 514 U.S. 334 (1995), where the Court 

–––––––––––––––––––––––– 

cient justification for anything should go without saying, but that 

does not advance Citizens United’s claim that the different interests 

served by the provisions at issue here are insufficient to meet constitutional demands. 
27 

upheld the right of an individual to distribute selfpublished, anonymous pamphlets on ballot measure issues, the Court was careful to reconcile its holding with 

the “dicta” from Bellotti and took pains not to call into 

doubt regulations requiring disclosure of corporate campaign expenditures and contributions, whether issue or 

candidate-related. See id. at 353-56. Moreover, “dicta” or 

not, these statements by the Court are far more persuasive than the authority Citizens United musters for the 

proposition that disclosure of expenditures and sources 

of funding for issue advocacy may not be required—that 

is to say, no authority at all. 

Indeed, the notion that disclosure requirements applicable to political speech must be limited to express 

candidate advocacy or its equivalent is directly at odds 

with the holding in United States v. Harriss, 347 U.S. 

612 (1954). There, the Court upheld disclosure requirements as to nonelectoral issue advocacy—that is, lobbying—based on the informational interest in disclosing to 

the public and to members of Congress “who is being 

hired, who is putting up the money, and how much,” information that it found essential to “maintain[ing] the 

integrity of a basic governmental process.” Id. at 625. 

In each of these cases, the Court asserted the validity 

of disclosure requirements as to the amount and source 

of expenditures notwithstanding that (1) the expenditures themselves could not be prohibited, and (2) the expenditures involved issue rather than candidate advocacy. The decisions thus demonstrate the fallacy of Citizens United’s two related submissions that disclosure 

requirements cannot be imposed upon its communications unless they are the type of communications as to 

which corporate funding may be prohibited and/or they 

are express candidate advocacy or its equivalent. 
28 

Whatever the limits may be to the imposition of disclosure requirements when citizens pool their money to 

address matters of public interest, the provisions of 

BCRA at issue here do not approach them. When a corporation such as Citizens United collects and expends 

funds to broadcast messages about a candidate on the 

eve of an election, this Court’s precedents indicate that 

the public interest in knowing whose money is behind 

those messages is more than sufficient to justify reporting and disclosure requirements. 

B. Citizens United’s “Burdensomeness” Arguments Are Unfounded. 

Citizens United’s assertion that the disclosure and 

disclaimer requirements are unduly burdensome is unpersuasive and unsupported by this Court’s precedents. 

As to disclosure, Citizens United’s argument is refuted 

by the very authority on which it relies—MCFL (see Citizens United Br. 54). MCFL, to begin with, expressly 

stated that even though an ideological nonprofit corporation that accepts no contributions from business corporations cannot be restrained from expending its own funds 

for express candidate advocacy or forced to bear the 

burden of establishing a “separate segregated fund” subject to the detailed reporting and disclosure requirements applicable to a “political committee,” it must nonetheless report its political expenditures and contributors. 

Compare 479 U.S. at 253-54 (discussing burdens of political committee requirements) with id. at 262. Specifically, the Court in MCFL stated that, under FECA’s 

provision for disclosure of independent expenditures (2 

U.S.C. § 434(c)), 

MCFL will be required to identify all contributors 

who annually provide in the aggregate $200 in 

funds intended to influence elections, will have to 
29 

specify all recipients of independent spending 

amounting to more than $200, and will be bound to 

identify all persons making contributions over $200 

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. The state interest in disclosure therefore can be met in a manner less restrictive than imposing the full panoply of regulations 

that accompany status as a political committee under the Act. 

479 U.S. at 262. 

MCFL’s discussion on this point has twofold significance. First, it provides yet another refutation of Citizens United’s position that disclosure obligations cannot 

be imposed on it if its funding of the speech itself is constitutionally protected, for the MCFL Court acknowledged the existence of sufficient justifications for disclosure even in circumstances where it could not find constitutional justification for prohibiting the use of the corporation’s funds for the expenditures at issue. Second, it is 

fatal to Citizens United’s undue burden argument. While 

finding the requirements of political committee status 

generically too burdensome for MCFL corporations, the 

Court obviously thought that compliance with FECA’s 

standards for disclosure of independent expenditures 

created no similarly excessive burden. Moreover, as the 

majority in McConnell observed, BCRA’s disclosure requirements for electioneering communications are “actually somewhat less intrusive than the comparable requirements that have long applied to persons making independent expenditures [under 2 U.S.C. § 434(c)].” 

McConnell, 540 U.S. at 196 n.81 (emphasis added). If, as 
30 

MCFL recognized, the requirements of § 434(c) are not 

too burdensome for a true MCFL corporation, it follows 

that the less onerous reporting requirements of BCRA 

are not excessive for a corporation that does not even 

qualify under MCFL. 

As for Citizens United’s contention that the foursecond disclaimer requirements applicable to its ads under BCRA are excessively burdensome, it, too, is untenable. Four seconds is obviously a minimal requirement 

for conveying any information, and Citizens United cites 

no authority for the proposition that its own decision to 

use ads so abbreviated that the disclaimer cannot fit 

comfortably with everything else it wants to cram into 

the short timeframe it has selected renders the disclaimer requirement unduly burdensome. The significant 

public interest in knowing who is and is not behind such 

election-eve, candidate-related messages is more than 

sufficient to justify the minimal burden of a four-second 

disclaimer and to outweigh Citizens United’s interest (if 

any) in making its messages so short that it has no time 

for a disclaimer. 

CONCLUSION 

This Court should affirm the decision of the threejudge district court. 
31 

Respectfully submitted, 

SCOTT L. NELSON

Counsel of Record

BRIAN WOLFMAN

PUBLIC CITIZEN

 LITIGATION GROUP

1600 20th Street, N.W. 

Washington, DC 20009 

(202) 588-1000 

SETH P. WAXMAN

RANDOLPH D. MOSS

WILMER CUTLER PICKERING

 HALE & DORR LLP 

1875 Pennsylvania Ave., NW 

Washington, DC 20006 

(202) 663-6000 

ROGER M. WITTEN 

WILMER CUTLER PICKERING

 HALE & DORR LLP 

399 Park Ave. 

New York, NY 10022 

(212) 230-8800 

TREVOR POTTER

J. GERALD HEBERT

PAUL S. RYAN

TARA MALLOY

THE CAMPAIGN LEGAL CENTER

1640 Rhode Island Ave., NW 

Suite 650 

Washington, DC 20036 

(202) 736-2200 
32 

–––––––––––––––––––––––– 

FRED WERTHEIMER*

DEMOCRACY 21 

1875 I St., NW 

Suite 500 

Washington, DC 20005 

(202) 429-2008 

DONALD J. SIMON* 

SONOSKY, CHAMBERS, 

 SACHSE, ENDRESON

 & PERRY, LLP 

1425 K St., NW 

Suite 600 

Washington, DC 20005 

(202) 682-0240 

LAURA MACCLEERY

MONICA YOUN

BRENNAN CENTER FOR JUSTICE

 AT NYU SCHOOL OF LAW

161 Avenue of the Americas 

12th Floor 

New York, NY 10013 

(202) 998-6730 

ALAN B. MORRISON

1937 Biltmore St., NW 

Washington, DC 20009 

(202) 596-6744 

Attorneys for Amici Curiae 

Date: February 2009 

*

 Counsel for Amici Senator Feingold and former Representatives Shays and Meehan.