UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS UNITED, ) 

 ) 

 Plaintiff, ) 

 ) 

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

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY IN SUPPORT OF 

 ) MOTION TO DISMISS 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY IN SUPPORT OF ITS 

MOTION TO DISMISS COUNTS 3 AND 4 OF THE AMENDED COMPLAINT 

 Defendant Federal Election Commission (“Commission”) submits this reply 

memorandum in further support of its Motion to Dismiss Counts 3 and 4 of the Amended 

Complaint. The Commission agrees with Plaintiff that Count 4 should be dismissed without 

prejudice as moot. Count 3, however, should be dismissed with prejudice because Plaintiff’s 

film is the functional equivalent of express advocacy, and therefore Plaintiff has no constitutional 

right under FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (“WRTL”), to use its 

corporate treasury funds to broadcast Hillary: The Movie on cable television. 

I. PLAINTIFF’S FILM IS THE FUNCTIONAL EQUIVALENT OF EXPRESS 

ADVOCACY 

The main thrust of Plaintiff’s response (see Pl.’s Mem. of L. Resp. to FEC’s Mot. to 

Dismiss Counts 3 & 4 at 5-8, 12-16 (“Pl.’s Mem.”)) is that Hillary: The Movie is constitutionally 

exempt from the electioneering communication (“EC”) corporate funding restriction because the 

film purportedly contains “no words constituting” an appeal to vote against Senator Clinton. (Id. 

at 1.) 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 v. FEC, 540 U.S. 93 (2003), 

 

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and WRTL. Although the WRTL test requires a broadcast to be the “functional equivalent of 

express advocacy,” 127 S. Ct. at 2667 (emphasis added), that analysis 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 v. Valeo, 424 U.S. 1 (1976), the Court 

examined the provision of the Federal Election Campaign Act (“FECA”) that limited 

expenditures made by certain persons “relative to a clearly identified candidate.” See id. 

at 39-51. The Court held that this provision was unconstitutionally vague and, accordingly, 

construed it narrowly to encompass only expenditures for communications that expressly 

advocate the election or defeat of a candidate. Id. at 44; see also id. at 79-80 (employing same 

narrowing construction for certain disclosure requirements); 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 the Bipartisan Campaign Reform Act (“BCRA”), Pub. L. No. 

107-155, which expanded the application of FECA’s corporate and union financing restriction. 

In relevant part, BCRA extended the restriction to all electioneering communications, which 

BCRA defined as television or radio broadcasts that refer to a federal candidate within a certain 

time window in advance of an election. See 2 U.S.C. § 434(f)(3)(A)(i). Other than a reference 

to a candidate, there is no content requirement in the EC definition. See id. 

2

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After BCRA was passed, 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, 

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 8 (“[T]he issue that must be decided . . . is whether 

there are actual words in Hillary that contain WRTL II’s required unambiguous ‘appeal to 

3

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vote . . . .’”).)1

 In support of its claim, Plaintiff selectively quotes WRTL’s language regarding 

an “appeal to vote.” (See id. at 5-8.) Plaintiff fails to note, however, that the test from which th

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. 

is 

 

As set forth in the Commission’s motion to dismiss, 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 

1

 Although Plaintiff has studiously avoided using the phrase “magic words,” Plaintiff has 

acknowledged that this is the import of its argument. See Tr. of Prelim. Inj. Hr’g at 14-16 (Jan. 

10, 2008) (attached as Exhibit 1): 

JUDGE LAMBERTH: Do you have to use the magic words “vote” for it to be 

express advocacy; is that your position? . . . 

MR. BOPP: Yes. 

. . . 

MR. BOPP: [The film] does not say vote against her. 

JUDGE LAMBERTH: Because it did not use the magic words[?] 

MR. BOPP: Exactly right. 

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an appeal to vote against her. (See Def.’s Mem. of L. in Support of Its Mot. to Dismiss Counts 3 

and 4 of the Am. Compl. at 6-10 (“Def.’s Mem.”).) See also Citizens United v. FEC, 530 F. 

Supp. 2d 274, 279-80 (D.D.C. 2008) (“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 12-15) that the film is issue advocacy — 

because of what Plaintiff calls the “dissolving-distinction problem” (Pl.’s Mem. at 6-7) — 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”).2 Thus, as WRTL confirmed, 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 

 

2

 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 FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 

249-50 (1986) (“MCFL”) (holding that corporation’s newsletter was express advocacy, despite 

inclusion of issue speech as part of the communication). 

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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). 

Plaintiff also claims that its film is akin to the issue ads in WRTL III, Civ. No. 04-1260 

(D.D.C.), and Christian Civic League of Maine v. FEC, Civ. No. 06-614 (D.D.C.). Those ads, 

however, contained only brief references to candidates, while focusing on legislative issues and 

urging the public to take positions on those issues. (See Pl.’s Mem. at 13 n.1, 14 n.2.) Hillary: 

The Movie inverts this formula: It 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 Def.’s Mem. at 7-9.) 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. (See, e.g., Am. Compl. Exh. 2 at 46-47 (discussing 

immigration debate and concluding that Senator Clinton’s response “doesn’t suggest presidential 

stature or character”); id. at 47-49 (discussing Iraq war and concluding that “the potential future 

commander-in-chief” is “not flipping and flopping. [S]he’s lying.”).) 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 id. 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. Thus, under the plain language of the 

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WRTL test, Hillary: The Movie does not “focus on a legislative issue,” and it therefore cannot be 

a “genuine issue ad.”3

 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. 

II. PLAINTIFF’S REMAINING ARGUMENTS ARE ALSO WITHOUT MERIT 

Plaintiff makes four additional arguments in opposition to the Commission’s motion to 

dismiss, and each one lacks merit. First, Plaintiff claims that the EC financing restriction should 

be construed to apply only to “ads,” not to “a full-length documentary movie shown in theaters, 

sold on DVD, and with a compendium book.” (Pl.’s Mem. at 10-11.) 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 “there was no record 

evidence [in McConnell] that movies were a problem.” (Pl.’s Mem. at 11.) This assertion, 

however, is belied by the thirty-minute broadcasts 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 10 (citing McConnell, 251 F. Supp. 2d at 305-06, 316-17); see also McConnell, 251 F. Supp. 

2d at 547-48 (opinion of Kollar-Kotelly, J.), 906 (opinion of Leon, J.). Thus, the McConnell

 

3

 Plaintiff’s claim (Pl.’s Mem. at 15) that its film is a “biography” fails for the same reason: 

Senator Clinton’s actions and experiences are discussed solely in the context of criticizing her 

character and fitness for office. (See Def.’s Mem. at 6-9.) Hillary: The Movie, therefore, is as 

much a biography of Senator Clinton as the Bill Yellowtail ad was a biography of Bill 

Yellowtail. 

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Court undeniably was aware of the existence of ECs longer than thirty- or sixty-second ads when 

it upheld the EC definition.4

Second, Plaintiff argues (Pl.’s Mem. at 8-12) 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 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.5 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 during this litigation (see, e.g., Tr. of Prelim. Inj. Hr’g 

at 19, 48-49 (Jan. 10, 2008) (attached as Exh. 1)), Plaintiff again attempts to draw a parallel 

between Hillary: The Movie and the film Fahrenheit 9/11. (Pl.’s Mem. at 11.) 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 

 

4

 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 9-10.) 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). 

5

 Plaintiff’s argument also fails as a factual matter. For example, as the Commission noted 

in its motion to dismiss, Plaintiff’s film contains multiple visual attacks on Senator Clinton’s 

character that are not reflected in the written script. (Def.’s Mem. at 9.) 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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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. 

Finally, Plaintiff argues (Pl.’s Mem. at 16-17) that Count 3 of the Amended Complaint 

should not be dismissed because the Commission has sought discovery regarding the “press 

exception” to the EC regulations. However, the Commission is seeking this discovery primarily 

to prepare for the possibility that Plaintiff, having failed in its constitutional claims, may raise a 

press exemption argument (see Exh. 1 at 19 (comparing film to “Frontline or Nova or 48 Hours 

or 60 Minutes”)) in the context of Plaintiff’s challenges to the EC disclosure provisions — 

challenges that are not at issue in this motion to dismiss. The Commission has every right under 

the Federal Rules of Civil Procedure to protect itself through discovery against an argument — 

no matter how weak that argument would be.6

 Plaintiff cites no authority for the proposition that 

the Commission’s inquiry about its other claims somehow rescues Plaintiff’s financing challenge 

from its legal insufficiency. There is no such authority: Count 3 fails as a matter of law, and the 

Commission’s unrelated discovery request cannot redeem that failure. 

III. CONCLUSION 

For the foregoing reasons, the Commission respectfully requests that the Court dismiss 

Count 3 of the Amended Complaint with prejudice, and dismiss Count 4 of the Amended 

Complaint without prejudice as moot. 

 

6

 The argument would lack merit because, inter alia, Plaintiff intends to pay a cable 

provider to air the film. Am. Compl. ¶ 28; FEC Advisory Opinion 2004-30 at 7 (Sept. 10, 2004), 

http://saos.nictusa.com/aodocs/2004-30.pdf (denying media exemption to Citizens United). In 

any event, Plaintiff does not actually attempt to claim the press exemption in its opposition to the 

Commission’s motion to dismiss (see Pl.’s Mem. at 16-17; see also Am. Compl. ¶ 15 (citing 

Advisory Opinion 2004-30)), and no facts about the exemption are relevant to the constitutional 

issue now before the Court. 

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10

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: April 3, 2008 (202) 694-1650 

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