No. 07-953

In the Supreme Court of the United States

CITIZENS UNITED, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel

KEVIN DEELEY

Assistant General Counsel

ADAV NOTI

Attorney

Federal Election Commission

Washington, D.C. 20463

PAUL D. CLEMENT

Solicitor General

Counsel of Record

GREGORY G. GARRE

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General 

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217
(I)

QUESTION PRESENTED

Whether the three-judge district court abused its

discretion in denying appellant’s motion for a preliminary injunction against the enforcement of reporting

and disclaimer requirements governing appellant’s

planned advertisements.
(III)

TABLE OF CONTENTS

 Page

Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

TABLE OF AUTHORITIES

Cases:

Brown v. Socialist Workers ’74 Campaign Comm.,

459 U.S. 87 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 13

Buckley v. American Constitutional Law Found.,

Inc., 525 U.S. 182 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . 18

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

Central Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm’n, 447 U.S. 557 (1980) . . . . . . . . . . . . . . . . . . . . . 19

Citizens Against Rent Control v. City of Berkeley,

454 U.S. 290 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) . . . . . . . . . 11

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

FEC v. Wisconsin Right to Life, Inc., 127 S. Ct.

2652 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 9, 19, 21, 22

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) . . . . 17, 18

Gonzales v. O Centro Espirita Beneficente Uniao

Do Vegetal, 546 U.S. 418 (2006) . . . . . . . . . . . . . . . . . . . 11

McConnell v. FEC:

540 U.S. 93 (2003) .......................... passim

251 F. Supp. 2d 176 (D.D.C.), aff’d in part and

rev’d in part, 540 U.S. 93 (1993) . . . . . . . . . . . . 4, 7, 22
IV

Cases—Continued: Page

United States v. Harriss, 347 U.S. 612 (1954) . . . . . . . . . . 18

University of Tex. v. Camenisch, 451 U.S. 390 (1981) . . . 12

Walters v. National Ass’n of Radiation Survivors,

468 U.S. 1323 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Wisconsin Right to Life, Inc. v. FEC, 542 U.S. 1305

(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Wisconsin Right to Life, Inc. v. FEC, No. 04-5292,

2004 WL 1946452 (D.C. Cir. Sept. 1, 2004) ...........2

Constitution, statutes and regulations:

U.S. Const. Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 22

Bipartisan Campaign Reform Act of 2002,

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

§ 201, 116 Stat. 88 (2 U.S.C. 434(f)(2)(E)

(Supp. V 2005)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

§ 203, 116 Stat. 91 (2 U.S.C. 441b(b)(2)

(Supp. V 2005)) . . . . . . . . . . . . . . . . . . 8, 9, 13, 16, 22

§ 311, 116 Stat. 105 (2 U.S.C. 441d(a)

(2000 & Supp. V 2005)) . . . . . . . . . . . . . . . . . . . . . 1, 2

§ 403(a)(1), 116 Stat. 114 ........................2

§ 403(a)(3), 116 Stat. 114 . . . . . . . . . . . . . . . . . . . . . . 2, 3

§ 403(d)(1), 116 Stat. 114 .......................2

§ 403(d)(2), 116 Stat. 114 .......................2

Federal Election Campaign Act of 1971, 2 U.S.C. 431

et seq. (2000 & Supp. V 2005) ......................3

2 U.S.C. 431(11) ...............................5

2 U.S.C. 431(f) (Supp. IV 1974) ..................4

2 U.S.C. 434(f)(1) (Supp. V 2005) ................5

2 U.S.C. 434(f)(2) (Supp. V 2005) ................5
V

Statutes and regulations—Continued: Page

2 U.S.C. 434(f)(2)(E) (Supp. V 2005) ..............6

2 U.S.C. 434(f)(3)(A)(i) (Supp. V 2005) ............5

2 U.S.C. 437c(b)(1) ............................3

2 U.S.C. 437d(a)(7) ............................3

2 U.S.C. 437d(a)(8) ............................3

2 U.S.C. 437f .................................3

2 U.S.C. 438(a)(8) (Supp. V 2005) ................3

2 U.S.C. 438(d) ................................3

2 U.S.C. 441b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

2 U.S.C. 441d (Supp. V 2005) ....................5

2 U.S.C. 441d(a)(3) (Supp. V 2005) . . . . . . . . . . . . 6, 20

2 U.S.C. 441d(d)(2) (Supp. V 2005) . . . . . . . . . . . . 6, 20

26 U.S.C. 501(c)(4) ..................................9

28 U.S.C. 1253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

11 C.F.R.:

Section 104.20 ...................................5

Section 104.20(c) (2008) ...........................5

Section 104.20(c)(7) (2008) ........................6

Section 104.20(c)(7)(ii) (2008) ......................5

Section 104.20(c)(9) (2008) ........................5

Section 110.11 ...................................5

Section 110.11(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Section 110.11(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 20

Section 110.11(c)(4) ..............................6

Section 110.11(c)(4)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Section 110.11(c)(4)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Section 110.11(c)(4)(iii)(A) . . . . . . . . . . . . . . . . . . . . . . . . 20
VI

Regulation—Continued: Page

Section 114.15 (2008) .............................5

Miscellaneous:

Citizens United Political Victory Fund, Statement

of Organization (June 15, 1994) <http://query.

nictusa.com/cgi-bin/fecimg/?94039043287+0> . . . . . . 15

Electioneering Communications, 72 Fed. Reg.

72,899 (2007) ....................................5

p. 72,913 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

pp. 72,913-72,915 ...............................5

FEC, Citizens United Political Victory Fund

(visited Feb. 12, 2008) <http://query.nictusa.

com/cgi-bin/fecimg/?C00295527> . . . . . . . . . . . . . . . . . 15

FEC, Individuals Who Gave to this Committee:

Citizens United Political Victory Fund

(visited Feb. 12, 2008) <http://query.nictusa.

com/cgi-bin/com_ind/C00295527/> . . . . . . . . . . . . . . . . 15

Hannity & Colmes: Analysis with Dick Morris

(Fox News television broadcast Jan. 22, 2007),

2007 WLNR 1299920 .............................9
(1)

In the Supreme Court of the United States

No. 07-953

CITIZENS UNITED, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

OPINION BELOW

The opinion of the three-judge district court denying

appellant’s motion for a preliminary injunction (J.S.

App. 2a-20a) is not yet reported.

JURISDICTION

The decision of the three-judge district court was

issued on January 15, 2008. A notice of appeal was filed

on January 16, 2008 (J.S. App. 20a-21a), and the jurisdictional statement was filed on January 22, 2008. The

jurisdiction of this Court is invoked under 28 U.S.C.

1253.

STATEMENT

In the district court, appellant argued, inter alia, that

the reporting and disclaimer requirements imposed by

Sections 201 and 311 of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat.
2

1 The question whether this Court has jurisdiction over the instant

appeal is not free from doubt. Under BCRA § 403(a)(1) and (3), 116

Stat. 114, suits challenging the constitutionality of any BCRA provision

may be heard by a three-judge district court within the District of

Columbia, and the three-judge court’s “final decision” is reviewable by

direct appeal to this Court. For suits filed on or before December 31,

2006, that three-judge court procedure was the exclusive mechanism for

pursuing a constitutional challenge to BCRA. See BCRA § 403(d)(1),

116 Stat. 114; cf. Wisconsin Right to Life, Inc. v. FEC, No. 04-5292,

2004 WL 1946452 (D.C. Cir. Sept. 1, 2004). BCRA § 403(d)(2), 116 Stat.

114, states, however, that “[w]ith respect to any action initially filed

after December 31, 2006, the provisions of subsection (a) shall not apply

to any action described in such section unless the person filing such

action elects such provisions to apply to the action.” Appellant elected

to have its suit heard by a three-judge district court. See J.S. App. 7a

n.8.

Under 28 U.S.C. 1292(a)(1), the courts of appeals have jurisdiction to

review “[i]nterlocutory orders of the district courts” granting or

denying preliminary injunctive relief, “except where a direct review

may be had in the Supreme Court.” This Court has jurisdiction to

review the denial of a preliminary injunction “in any civil action, suit or

proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” 28 U.S.C. 1253 (emphasis

added). This case was not “required” to be decided by a three-judge

court insofar as appellant could have presented its constitutional claims

to a single-judge court. On the other hand, under BCRA § 403(d)(2),

appellant was entitled to a three-judge district court as of right, and

once appellant elected that option, BCRA “required” that a three-judge

88, 105 (2 U.S.C. 434(f)(2) (Supp. V 2005); 2 U.S.C.

441d(a) (2000 & Supp. V 2005)), are unconstitutional as

applied to three of appellant’s planned broadcast advertisements. The district court denied appellant’s motion

for a preliminary injunction against enforcement of

those requirements pending the court’s resolution of the

case on the merits. J.S. App. 2a-20a. Appellant now

seeks this Court’s review of that denial of preliminary

injunctive relief and has moved for expedited briefing

and argument this spring.1
3

court be convened to decide the case. That may be sufficient to trigger

the application of Section 1253. If this Court were to determine that it

lacks jurisdiction over the instant interlocutory appeal, the district

court’s “final decision” in the case would still be reviewable by this

Court pursuant to BCRA § 403(a)(3), 116 Stat. 114, and the grant or

denial of preliminary injunctions by three-judge district courts in cases

in which the plaintiff elects a three-judge panel would be reviewable in

the court of appeals (and in this Court via a petition for certiorari).

1. The Federal Election Commission (Commission or

FEC) is vested with statutory authority over the administration, interpretation, and civil enforcement of the

Federal Election Campaign Act of 1971 (FECA),

2 U.S.C. 431 et seq., and other federal campaign-finance

statutes. The Commission is empowered to “formulate

policy” with respect to the FECA, 2 U.S.C. 437c(b)(1);

“to make, amend, and repeal such rules * * * as are

necessary to carry out the provisions of [the] Act,”

2 U.S.C. 437d(a)(8), 438(d); 2 U.S.C. 438(a)(8) (Supp. V

2005); and to issue written advisory opinions concerning

the application of the Act and Commission regulations to

any specific proposed transaction or activity, 2 U.S.C.

437d(a)(7), 437f.

2. Since 1910, federal law has required disclosure of

information related to the financing of federal election

campaigns. See Buckley v. Valeo, 424 U.S. 1, 61 (1976)

(per curiam). After Congress enacted a new disclosure

regime in 1974, see id. at 62-64, this Court held that the

new provisions were constitutional on their face, id. at

64-84. The Court explained that disclosure serves the

important government interests of (1) providing the

electorate with information on campaign financing “in

order to aid the voters in evaluating those who seek federal office,” id. at 66-67; (2) “deter[ring] actual corruption and avoid[ing] the appearance of corruption by exposing large contributions and expenditures to the light
4

of publicity,” id. at 67; and (3) “gathering the data necessary to detect violations of the contribution limitations”

that were simultaneously enacted, id. at 68.

The disclosure requirements at issue in Buckley pertained to “the use of money or other objects of value ‘for

the purpose of . . . influencing’” nominations or elections to federal office. 424 U.S. at 77 (quoting 2 U.S.C.

431(f) (Supp. IV 1974)). In order to avoid “serious problems of vagueness,” the Court held that, as applied to

organizations whose major purpose was not campaign

activity, the disclosure provisions would “reach only

funds used for communications that expressly advocate

the election or defeat of a clearly identified candidate,”

i.e., “spending that is unambiguously related to the campaign of a particular federal candidate.” Id. at 76, 79-80

(footnote omitted). Consistent with earlier decisions

regarding compelled disclosure, the Court held that the

challenged provisions, so construed, would unconstitutionally infringe on associational rights only in the limited circumstance when such disclosure would result in

a “reasonable probability” of “threats, harassment, or

reprisals” against an organization or its members. Id. at

68, 74.

3. Based on its assessment of evolving federal campaign practices and abuses during the years following

Buckley, Congress subsequently determined, inter alia,

that entities had been funding broadcast advertisements

designed to influence federal elections “while concealing

their identities from the public,” including by “hiding

behind dubious and misleading names.” McConnell v.

FEC, 540 U.S. 93, 196-197 (2003) (quoting McConnell v.

FEC, 251 F. Supp. 2d 176, 237 (D.D.C.) (per curiam)).

Through BCRA, Congress amended FECA to require

disclosure about the sources of funding for “electioneer-
5

2 The FEC recently amended its electioneering communication

reporting regulations to conform to this Court’s decision in FEC v.

Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007), and to address the

reporting requirements for corporations and labor organizations. See

Electioneering Communications, 72 Fed. Reg. 72,899, 72,913-72,915

(2007) (to be codified at 11 C.F.R. 104.20, 114.15 (2008)). Appellant’s

planned advertisements would be subject to the revised provisions that

will be contained in 11 C.F.R. 104.20(c)(7)(ii) and (9) (2008). See 72 Fed.

Reg. at 72,899 (providing that revised regulations became effective on

publication date).

ing communication[s].” The term “electioneering communication” is defined in pertinent part as a “broadcast,

cable, or satellite communication” that (1) refers to a

clearly identified candidate for federal office; and (2) is

made within 60 days before a general election, or within

30 days before a primary election for the office sought

by the candidate. 2 U.S.C. 434(f)(3)(A)(i) (Supp. V

2005).

The disclosure provisions at issue in this case include

both reporting requirements, 2 U.S.C. 434(f)(2) (Supp.

V 2005); 11 C.F.R. 104.20, and disclaimer requirements,

2 U.S.C. 441d (Supp. V 2005); 11 C.F.R. 110.11.2

 The

reporting provisions state that any “person” (defined to

include any corporation, labor organization, or other

group, 2 U.S.C. 431(11)) expending more than $10,000 to

produce or air an electioneering communication must

file a statement with the Commission. 2 U.S.C. 434(f)(1)

(Supp. V 2005). The statement must identify the person

making the disbursement, the amount and date of the

disbursement, and, in the case of an electioneering communication made by a corporation, “the name and address of each person who made a donation aggregating

$1,000 or more to the corporation * * * for the purpose

of furthering electioneering communications.” 11 C.F.R.

104.20(c); 72 Fed. Reg. 72,913 (2007) (to be codified at 11
6

C.F.R. 104.20(c)(9) (2008)). If the disbursement is made

out of a “segregated bank account established to pay for

electioneering communications,” the corporation making

the electioneering communication need only identify

those individuals who contributed $1000 or more to that

segregated account. 2 U.S.C. 434(f)(2)(E) (Supp. V

2005); 72 Fed. Reg. at 72,913 (to be codified at 11 C.F.R.

104.20(c)(7) (2008)).

BCRA’s disclaimer provisions require that a televised electioneering communication include on the

screen (1) “the name and permanent street address,

telephone number, or World Wide Web address of the

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

any candidate or candidate’s committee.” 2 U.S.C.

441d(a)(3) (Supp. V 2005); 11 C.F.R. 110.11(b)(3). The

communication must also include a statement that the

entity funding the communication “is responsible for the

content of this advertising,” and that statement must be

(1) made orally by a representative of the person making

the communication, and (2) printed “for a period of

at least 4 seconds” on at least four percent of the television screen. 2 U.S.C. 441d(d)(2) (Supp. V 2005); 11

C.F.R. 110.11(c)(4).

4. Soon after BCRA was enacted, appellant and

other plaintiffs challenged the constitutionality of numerous BCRA provisions on their face, including the

reporting and disclaimer requirements that are at issue

in this appeal. In McConnell, this Court rejected the

plaintiffs’ facial challenges to those disclosure provisions. See 540 U.S. at 194-202, 230-231.

In upholding the reporting requirements applicable

to “electioneering communications,” the Court in

McConnell explained that “the important state interests
7

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—apply in full to BCRA.” 540 U.S. at 196. For

that reason, the Court concluded, “Buckley amply supports application of [the] disclosure requirements to the

entire range of ‘electioneering communications.’” Ibid.

The Court also endorsed the conclusion of the district

court in that case that the plaintiffs’ challenge to

BCRA’s reporting requirements “ignores the competing

First Amendment interests of individual citizens seeking

to make informed choices in the political marketplace.”

Id. at 197 (quoting McConnell, 251 F. Supp. 2d at 241).

Three other Justices in McConnell, while rejecting much

of the Court’s reasoning, agreed that BCRA’s reporting

requirements are generally constitutional because they

“substantially relate” to the informational interest identified in the Court’s opinion. See id. at 321 (Kennedy, J.,

concurring in the judgment in part and dissenting in

part); see id. at 286 & n.*.

Consistent with Buckley, the Court in McConnell

recognized that, under certain limited circumstances,

“compelled disclosures may impose an unconstitutional

burden on the freedom to associate in support of a particular cause.” 540 U.S. at 198. The Court explained

that, under the governing standard, disclosure may not

be required in circumstances where there is a “reasonable probability” that such disclosure “would subject

identified persons to ‘threats, harassments, and reprisals.’” Id. at 198-199 (quoting Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 100 (1982)). The

Court agreed with the district court that the evidence in
8

McConnell had “not establish[ed] the requisite ‘reasonable probability’ of harm to any plaintiff group or its

members,” but the Court noted that its rejection of the

facial challenge to the reporting requirements did “not

foreclose possible future challenges to particular applications of that requirement.” Id. at 199.

The Court in McConnell also upheld BCRA’s disclaimer requirements. 540 U.S. at 230-231. Chief Justice Rehnquist, writing for eight Members of the Court

(see id. at 224 & n.*), explained that BCRA’s “inclusion

of electioneering communications in the [pre-existing

disclaimer] regime bears a sufficient relationship to the

important governmental interest of ‘shed[ding] the light

of publicity’ on campaign financing.” Id. at 231 (quoting

Buckley, 424 U.S. at 81).

5. In McConnell, this Court rejected a facial challenge to BCRA § 203, 116 Stat. 91 (2 U.S.C. 441b(b)(2)

(Supp. V 2005)), which prohibits corporations or labor

unions from using general treasury funds to pay for

electioneering communications. 540 U.S. at 204-206.

Four years later, in FEC v. Wisconsin Right to Life,

Inc., 127 S. Ct. 2652 (2007) (WRTL), the Court sustained

an as-applied challenge to that prohibition. Two Members of the Court framed the relevant inquiry as

whether the advertisements at issue constituted “express advocacy or its functional equivalent.” Id. at 2664

(opinion of Roberts, C.J.). Under their approach, “an ad

is the functional equivalent of express advocacy only if

the ad is susceptible of no reasonable interpretation

other than as an appeal to vote for or against a specific

candidate.” Id. at 2667. Those two Members concluded

that, “[u]nder this test, WRTL’s three ads are plainly

not the functional equivalent of express advocacy.” Ibid.

Three other Justices concluded that BCRA § 203 is un-
9

constitutional on its face and would have overruled the

Court’s contrary holding in McConnell. Id. at 2684-2687

(Scalia, J., concurring in part and concurring in the

judgment).

6. Appellant Citizens United is a nonprofit Virginia

corporation with tax-exempt status under 26 U.S.C.

501(c)(4). J.S. App. 3a. Appellant has produced a film

about Senator Hillary Clinton entitled “Hillary: The

Movie,” which appellant intends to distribute through

theaters, video on-demand broadcasts, and DVD sales.

Ibid. Appellant has planned since at least January 2007

to distribute that film “in all of the early [presidential]

primary states.” Hannity & Colmes: Analysis with

Dick Morris (Fox News television broadcast Jan. 22,

2007), 2007 WLNR 1299920. Appellant has also produced three television advertisements for the movie.

J.S. App. 3a-5a & nn.2-4.

In December 2007, appellant filed suit in federal district court, challenging BCRA’s application to both the

film and the proposed advertisements. See J.S. App. 7a8a. With respect to the film itself, appellant contended

that BCRA § 203’s ban on the use of general treasury

funds for “electioneering communications” is unconstitutional on its face and as applied to “Hillary: The Movie.”

See id. at 8a, 10a-11a. With respect to the advertisements for the film, the FEC conceded in the district

court that, under this Court’s decision in WRTL, appellant could not constitutionally be foreclosed from financing those advertisements with general treasury funds.

See id. at 14a. The parties disagreed, however, on the

question whether BCRA’s reporting and disclaimer provisions were constitutional as applied to the advertisements. See id. at 8a, 14a.
10

7. The three-judge district court denied appellant’s

request for preliminary injunctive relief on both of appellant’s claims. J.S. App. 2a-20a.

a. The district court held that appellant had no substantial likelihood of prevailing on its as-applied challenge with respect to the film itself because the film is

the functional equivalent of express advocacy. J.S. App.

9a-14a. The court stated that the film “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.” Id. at 11a. The jurisdictional statement does not

challenge the district court’s denial of preliminary injunctive relief with respect to the movie.

b. The district court held that appellant had also

failed to establish the requisite likelihood of success at

this stage on its contention that BCRA’s reporting and

disclaimer provisions are unconstitutional as applied to

appellant’s proposed advertisements. J.S. App. 14a-17a.

The court explained that this Court in McConnell had

upheld those provisions “for the ‘entire range of electioneering communications’ set forth in the statute.” Id.

at 15a (quoting McConnell, 540 U.S. at 196). The court

rejected appellant’s contention that this aspect of

McConnell had been superseded by WRTL, stating that

“[t]he only issue in [WRTL] was whether speech that did

not constitute the functional equivalent of express advocacy could be banned during the relevant pre-election

period.” Ibid. The district court also observed that, in

various contexts, this Court “has written approvingly of

disclosure provisions triggered by political speech even

though the speech itself was constitutionally protected

under the First Amendment.” Id. at 16a.
11

The district court recognized that this Court in

McConnell had “suggest[ed] one circumstance in which

the requirement to disclose donors might be unconstitutional as-applied—if disclosure would lead to reprisals

and thus ‘impose an unconstitutional burden on the freedom to associate in support of a particular cause.’” J.S.

App. 17a (quoting McConnell, 540 U.S. at 198). The

court explained, however, that while appellant’s “memorandum in support of its motion [for a preliminary injunction] states that there may be reprisals,” appellant

had “presented no evidence to back up this bald assertion.” Ibid. The court observed that appellant “is thus

in a similar position as the parties in McConnell who

made the same assertion but presented no specific evidentiary support.” Ibid.

ARGUMENT

The district court correctly denied appellant’s motion

for preliminary injunctive relief, and the court’s decision

rests on a straightforward application of settled legal

principles. The appeal should therefore be dismissed for

lack of a substantial federal question. In the alternative,

the judgment of the district court should be affirmed.

1. In determining whether to issue a preliminary

injunction, a district court considers the plaintiff’s likelihood of success on the merits, whether the plaintiff will

suffer irreparable injury in the absence of an injunction,

the prospect of injury to other parties if an injunction is

entered, and the public interest in granting or withholding temporary relief. J.S. App. 8a; see Doran v. Salem

Inn, Inc., 422 U.S. 922, 931 (1975). This Court reviews

the district court’s application of the preliminary-injunction factors under an abuse-of-discretion standard. See

id. at 931-932; see also Gonzales v. O Centro Espirita

Beneficente Uniao Do Vegetal, 546 U.S. 418, 428 (2006).
12

3 In addition, appellant’s claim that it will suffer irreparable harm in

the absence of preliminary injunctive relief is called into question by the

fact that appellant has planned since at least January 2007 to distribute

Hillary: The Movie (see p. 9, supra), but waited until December 2007

In denying appellant’s request for preliminary injunctive relief, the district court relied principally on its determination that appellant had failed to show a substantial likelihood of success on the merits. See J.S. App.

17a-18a. That holding is correct and provides a fully

sufficient basis for the district court’s ruling.

In contending that the district court abused its discretion by denying preliminary injunctive relief against

enforcement of BCRA’s reporting and disclaimer requirements, appellant bears a particularly heavy burden. Appellant’s effort to alter the status quo by seeking an exemption from BCRA’s coverage is contrary

to the established principle that “[t]he purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits

can be held.” University of Tex. v. Camenisch, 451 U.S.

390, 395 (1981). In addition, this Court’s holding in

McConnell that the challenged reporting and disclaimer

provisions are constitutional on their face at a minimum

strengthens “[t]he presumption of constitutionality

which attaches to every Act of Congress.” Walters v.

National Ass’n of Radiation Survivors, 468 U.S. 1323,

1324 (1984) (Rehnquist, J., in chambers). As Chief Justice Rehnquist explained, “[a]n injunction pending appeal barring the enforcement of an Act of Congress

would be an extraordinary remedy, particularly when

this Court recently held BCRA facially constitutional.”

Wisconsin Right to Life, Inc. v. FEC, 542 U.S. 1305,

1305-1306 (2004) (in chambers) (citing McConnell, 540

U.S. at 189-210).3
13

to file its current suit. Although appellant suggests (J.S. 2-3) that it

deferred filing suit until the completion of a recent FEC rulemaking

(see note 2, supra), appellant did not participate in the rulemaking

itself. 

2. In McConnell, eight Members of this Court—

including three Justices who would have held BCRA

§ 203’s prohibition on the use of corporate treasury

funds for “electioneering communications” to be unconstitutional on its face—agreed that the reporting and

disclaimer requirements applicable to such communications are facially valid. See pp. 6-7, supra. In particular, the opinion for the Court stated that “Buckley amply supports application of [FECA’s] disclosure requirements to the entire range of ‘electioneering communications.’” 540 U.S. at 196. That holding controls this case.

Contrary to appellant’s suggestion (J.S. 17), the government does not contend that McConnell “precludes

future as-applied challenges” to BCRA’s reporting and

disclaimer requirements. The Court in McConnell made

clear that as-applied challenges are available, stating

that the Court’s “rejection of plaintiffs’ facial challenge

to the requirement to disclose individual donors does not

foreclose possible future challenges to particular applications of that requirement.” 540 U.S. at 199. The

Court further explained that, to succeed in such an asapplied challenge, a plaintiff must demonstrate a “reasonable probability” that the forced disclosures “would

subject identified persons to ‘threats, harassment, and

reprisals.’” Id. at 198-199 (quoting Brown, 459 U.S. at

100). See Appellee’s Br. at 25 n.7, Wisconsin Right to

Life, Inc. v. FEC, 546 U.S. 410 (2006) (No. 04-1581)

(identifying, inter alia, this type of as-applied challenge

to the BCRA disclosure requirements as one left open in

McConnell). The McConnell Court observed that, al-
14

4 Appellant cites Buckley, 424 U.S. at 64, for the proposition that the

prospect of reprisals is “inherent in compelled disclosure.” J.S. 12. The

Court in Buckley noted that “compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the

First Amendment.” 424 U.S. at 64. Read as a whole, however, Buckley

and subsequent decisions make clear that, while compelled disclosure

inherently creates some risk of reprisal and may under some circumstances effect an unconstitutional burden on speech and associational

rights, the likelihood of such a burden cannot be presumed but must be

proved through particularized evidence. See McConnell, 540 U.S. at

197-199 (summarizing Court’s decisions).

though some plaintiffs in that case had expressed concern that disclosure might lead to such harms, no plaintiff had made a sufficient evidentiary showing that those

injuries were actually likely to occur. 540 U.S. at 199.

Similarly in the instant case, the district court did

not read McConnell as foreclosing all as-applied challenges to BCRA’s reporting and disclaimer requirements. To the contrary, the district court specifically

noted that “[t]he McConnell Court did suggest one circumstance in which the requirement to disclose donors

might be unconstitutional as-applied—if disclosure

would lead to reprisals.” J.S. App. 17a. The district

court concluded, however, that appellant could not prevail in such an as-applied challenge because appellant

(like the plaintiffs in McConnell) had raised the possibility of reprisals but had offered no evidence to support

that concern. Ibid.

4

 Similarly in this Court, appellant

suggests in passing (J.S. 12) that its donors “may * * *

be subject to various forms of retaliation by political opponents,” but it identifies no evidence supporting that

assertion, let alone any basis for concluding that the
15

5 Appellant has maintained a separate segregated fund (commonly

referred to as a “PAC”) for more than 13 years and has disclosed the

names and addresses of its donors pursuant to federal law. See Citizens United Political Victory Fund, Statement of Organization (June

15, 1994) <http://query.nictusa.com/cgi-bin/fecimg/?94039043287+0>;

FEC, Citizens United Political Victory Fund (visited Feb. 12, 2008)

<http://query.nictusa.com/cgi-bin/fecimg/?C00295527> (disclosure

database report). During that time, appellant has disclosed approximately 1000 contributions from individuals in amounts of $200 or

more, including address and employer information for most of the

individuals. FEC, Individuals Who Gave to this Committee: Citizens

United Political Victory Fund (visited Feb. 12, 2008) <http://query.

nictusa.com/cgi-bin/com_ind/C00295527/> (disclosure database report).

Appellant’s inability to produce any evidence of actual reprisals is

particularly striking in light of the large volume of donor information

that it has previously released. In addition, appellant was one of the

plaintiffs in McConnell, yet it failed in that case as in this one to present

evidence that disclosure of its donors would likely lead to retaliation.

district court’s assessment of the record reflected an

abuse of discretion.5

In arguing that BCRA’s reporting and disclaimer

provisions are unconstitutional as applied to its own advertisements, appellant makes no meaningful effort to

satisfy the prerequisites for the type of as-applied challenge that the Court in McConnell specifically approved.

Rather, appellant contends that it may not constitutionally be subjected to the reporting and disclaimer requirements because its advertisements, while concededly “electioneering communication[s]” within the

meaning of BCRA, are not the “functional equivalent”

of express advocacy under the lead opinion in WRTL.

J.S. 20-22, 24. The McConnell Court’s statement that

BCRA’s reporting requirements may constitutionally be

applied “to the entire range of ‘electioneering communications,’” 540 U.S. at 196, combined with the Court’s

express recognition that those requirements are subject
16

6 The plaintiff in WRTL did not link BCRA’s treasury-financing and

disclosure requirements in the manner that appellant now advocates,

but instead affirmatively disavowed any challenge to BCRA’s reporting

and disclaimer provisions. WRTL’s brief in this Court explained:

“Because WRTL does not challenge the disclaimer and disclosure requirements, there will be no ads done under misleading names. There

will continue to be full disclosure of all electioneering communications,

both as to disclaimers and public reports. The whole system will be

transparent. With all this information, it will then be up to the people

to decide how to respond to the call for grassroots lobbying on a particular governmental issue.” Appellee’s Br. at 49, WRTL, supra (Nos.

06-969 & 06-970).

to a different sort of as-applied challenge, id. at 199,

strongly suggests that the Court did not contemplate asapplied challenges based solely on the content of the

relevant communication.

3. In all events, appellant’s as-applied challenge

plainly lacks merit. The principal thrust of appellant’s

argument is that, because WRTL precludes the application of BCRA § 203’s treasury-financing ban to appellant’s advertisements, application of BCRA’s reporting

and disclaimer provisions is necessarily barred as well.

J.S. 24. That argument rests on the premise that the

authority of Congress and state legislatures to require

disclosure of financing sources is no greater than its

authority to bar the use of corporate treasury funds to

pay for particular communications. This Court has repeatedly rejected that proposition.6

In FEC v. Massachusetts Citizens for Life, Inc., 479

U.S. 238 (1986) (MCFL), for example, this Court held

that the defendant corporation was constitutionally entitled to use its general treasury funds to engage in express advocacy of federal electoral outcomes, notwithstanding the ban imposed by 2 U.S.C. 441b on use of

corporate treasury funds for that purpose. 479 U.S. at
17

263-264. The Court explained that, given the particular

characteristics of the corporation involved, the corporation’s campaign-related spending would not pose the

danger at which Section 441b was directed. See ibid.

The Court made clear, however, that the corporation

remained subject to the applicable FECA disclosure

requirements (but not, of course, to the additional requirements applicable to separate segregated funds).

See id. at 262 (explaining that “MCFL will be required

to identify all contributors who annually provide in the

aggregate $200 in funds intended to influence elections,

will have to 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”).

The Court has taken a similar approach to corporate

spending in the context of ballot initiatives. In First

National Bank v. Bellotti, 435 U.S. 765 (1978), this

Court struck down a Massachusetts law that prohibited

banks and business corporations from making certain

expenditures for the purpose of influencing the outcome

of public referenda. Id. at 767-768, 786-795. In holding

that the plaintiff corporation had a First Amendment

right to engage in such advocacy, the Court specifically

contrasted public referenda from “the quite different

context of participation in a political campaign for election to public office.” Id. at 788 n.26. The Court observed, however, that even in the context of corporate

expenditures on referenda, which could not constitutionally be prohibited, “[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.” Id. at 792 n.32. The
18

Court’s subsequent decisions have continued to recognize that, while advocacy of particular referendum outcomes is entitled to full constitutional protection, persons who engage in such advocacy may be required to

identify the sources of their funding. See Buckley v.

American Constitutional Law Found., Inc., 525 U.S.

182, 202-203, 205 (1999); Citizens Against Rent Control

v. City of Berkeley, 454 U.S. 290, 294 n.4, 298-299 (1981).

This Court has also held that “those who for hire attempt to influence legislation” may be required to disclose the sources and amounts of the funds they receive

to undertake lobbying activities. United States v. Harriss, 347 U.S. 612, 625-626 (1954). The Court explained

that, if Congress could not mandate the provision of that

information, “the voice of the people may all too easily

be drowned out by the voice of special interest groups

seeking favored treatment while masquerading as proponents of the public weal.” Id. at 625. In Bellotti, this

Court indicated that “the First Amendment protects the

right of corporations to petition legislative and administrative bodies,” 435 U.S. at 792 n.31, but cited Harriss

with approval as support for the proposition that compelled disclosure of financing information is permissible,

id. at 792 n.32. The Court has thus repeatedly recognized that legislatures may require the disclosure of

information concerning the source of funds used to influence public policy, even when that influence itself cannot

be constitutionally prohibited, and indeed even when it

occurs outside the election context.

Appellant relies on the Buckley Court’s determination that a prior FECA disclosure provision was limited

to “spending that is unambiguously related to the campaign of a particular federal candidate.” 424 U.S. at 80;

see J.S. 1-2, 18-22. That reliance is misplaced. The
19

7 Appellant contends that, “[i]n addition to being protected issue

advocacy,” the advertisements at issue here are properly regarded as

proposals for commercial transactions, such as box office sales or DVD

purchases of “Hillary: The Movie.” J.S. 11; see J.S. 10. To the extent

that appellant’s advertisements constitute commercial speech, however,

they are if anything entitled to less rather than more constitutional

protection. See Central Hudson Gas & Elec. Corp. v. Public Serv.

Comm’n, 447 U.S. 557, 562-563 (1980) (“The Constitution * * * accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.”). The film that appellant seeks to

promote, moreover, was found by the district court to be the functional

equivalent of express advocacy, J.S. App. 9a-14a, and appellant has not

challenged that determination in this Court.

Court in Buckley announced the express advocacy test

(for which the reference to “unambiguously campaign

related” spending, 424 U.S. at 81, was shorthand) as

a construction of the statutory phrase “for the purpose

of . . . influencing [federal elections].” Id. at 78-81; see

pp. 3-4, supra. This Court has since recognized that

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

of statutory interpretation rather than a constitutional

command.” McConnell, 540 U.S. at 191-192; see WRTL,

127 S. Ct. at 2670 n.7 (opinion of Roberts, C.J.). With

respect to disclosure requirements in particular, this

Court’s precedents squarely refute appellant’s contention that Congress’s power is limited to communications

that are “unambiguously related” to an identified federal candidate’s campaign. The decisions discussed

above make clear that compelled disclosure of financing

information may be permissible even when the disbursements in question have nothing to do with any candidate

election.7

4. Appellant contends (J.S. 13) that BCRA’s disclaimer provisions “require[] [appellant] to mislead the
20

public by identifying its speech as electioneering speech

when it is not.” That assertion is baseless. The challenged disclaimer provisions require that an “electioneering communication” broadcast on television must

include a written statement on the screen that (a) identifies “the name and permanent street address, telephone

number, or World Wide Web address of the person who

paid for the communication,” (b) states “that the communication is not authorized by any candidate or candidate’s committee,” and (c) states that the entity funding

the electioneering communication “is responsible for the

content of this advertising.” See 2 U.S.C. 441d(a)(3) and

(d)(2) (Supp. V 2005); 11 C.F.R. 110.11(a)(4), (b)(3) and

(c)(4)(iii). The disclaimer provisions further require that

such an advertisement include an oral statement that

the entity funding the electioneering communication “is

responsible for the content of this advertising.” See 2

U.S.C. 441d(d)(2) (Supp. V 2005); 11 C.F.R. 110.11(a)(4)

and (c)(4)(i). Those provisions do not require appellant

to characterize its advertisements as “electioneering”

speech or anything else, but simply require appellant to

take responsibility “for the content of this advertising.”

Appellant further contends (J.S. 13) that the disclaimer requirements “deprive[] [appellant] of valuable

time in its short and expensive broadcast Ads, which

deprivation and burden is not justified by any constitutional or congressional authority.” The required written

disclaimer, however, may occupy as little as four percent

of the vertical height of the television screen, see 11

C.F.R. 110.11(c)(4)(iii)(A), and the oral disclaimer would

consist solely of the words “Citizens United is responsible for the content of this advertising,” see 2 U.S.C.

441d(d)(2) (Supp. V 2005). Any burden those requirements may impose is not of constitutional dimension.
21

The disclaimer requirements serve to ensure that voters

can properly assign responsibility for advertisements

that refer to identified federal candidates during the

run-up to elections—and, in particular, to prevent the

misattribution of such advertisements to the candidate

or her opponent.

Eight Justices in McConnell agreed that BCRA’s

disclaimer provisions are valid as applied to “electioneering communications” generally. 540 U.S. at 230-231;

see id. at 224 & n.*. This Court’s intervening decision in

WRTL provides no basis for concluding that the disclaimer provisions are unconstitutional as applied to appellant’s own advertisements. The fact that appellant’s

advertisements are not unambiguously election-related—i.e., the fact that they may reasonably be construed as something other than an appeal to vote against

Hillary Clinton—does not eliminate the risk of voter

confusion or misattribution that the disclaimer requirements are intended to address. Because any burden on

appellant is minor, and the government’s interest is substantial, appellant’s as-applied challenge fails.

5. This Court has long recognized that “the distinction between discussion of issues and candidates and

advocacy of election or defeat of candidates may often

dissolve in practical application.” Buckley, 424 U.S. at

42. Thus, even when a particular “electioneering communication” can “reasonably be interpreted as something other than as an appeal to vote for or against a

specific candidate,” WRTL, 127 S. Ct. at 2670 (opinion of

Roberts, C.J.), and therefore is exempt under WRTL

from BCRA § 203’s ban on corporate treasury financing,

the advertisement may still have a practical impact on

candidate elections. The lead opinion in WRTL did not

suggest that, unless a particular “electioneering commu-
22

8 Justice Scalia’s concurring opinion likewise rested on the view that

BCRA § 203 “bans vast amounts of political advocacy.” 127 S. Ct. at

2684 (Scalia, J., concurring in part and concurring in the judgment)

(emphasis added).

nication” is the “functional equivalent” of express advocacy, its potential impact on candidate elections must be

ignored altogether. Rather, the opinion analyzed BCRA

§ 203’s treasury-financing ban as a form of “suppression” of corporate speech and concluded that “[d]iscussion of issues cannot be suppressed simply because

the issues may also be pertinent to an election.” Id. at

2669.8 The thrust of the opinion was that, if reasonable

doubt exists as to whether a particular advertisement

constitutes electoral advocacy, “the First Amendment

requires [the Court] to err on the side of protecting political speech rather than suppressing it.” Id. at 2659.

Application of BCRA’s reporting and disclaimer requirements, by contrast, cannot plausibly be viewed as

“suppression” of speech. To the contrary, enforcement

of those requirements increases the range of information available to citizens and thereby furthers First

Amendment values. See McConnell, 540 U.S. at 197

(explaining that “[p]laintiffs’ argument for striking down

BCRA’s disclosure provisions * * * ignores the competing First Amendment interests of individual citizens

seeking to make informed choices in the political marketplace”) (quoting McConnell, 251 F. Supp. 2d at 237);

Buckley, 424 U.S. at 82 (characterizing FECA disclosure

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

processes of our federal election system to public view”).

The core rationale of the lead opinion in WRTL—i.e.,

that any ambiguity as to the character of particular advertisements must be resolved in a speech-protective
23

manner—therefore does not support appellant’s as-applied challenge to the very different BCRA provisions at

issue here.

CONCLUSION

Assuming that appellate jurisdiction properly lies in

this Court, cf. note 1, supra, the appeal should be dismissed for lack of a substantial federal question. In the

alternative, the judgment of the district court should be

affirmed.

Respectfully submitted.

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel

KEVIN DEELEY

Assistant General Counsel

ADAV NOTI

Attorney

Federal Election Commission

PAUL D. CLEMENT

Solicitor General

GREGORY G. GARRE

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General 

FEBRUARY 2008