PI Motion 1

United States District Court

District of Columbia

Citizens United,

Plaintiff,

v.

Federal Election Commission,

Defendant.

Case No.

 THREE-JUDGE COURT

Motion for Preliminary Injunction

Citizens United moves for a preliminary injunction as set out below and for the

reasons set out in the accompanying Memorandum and Verified Complaint for Declaratory

and Injunctive Relief. Fed. R. Civ. P. 65(a).

As set out more fully in the Memorandum and Complaint Citizens United challenges

the constitutionality of (a) § 201 (the “Reporting Requirement”) of the Bipartisan Campaign Reform Act of 2002 (“BCRA”) and (b) BCRA § 311 (the “Disclaimer Requirement”)

as applied to communications that meet the statutory definition of electioneering communications, 2 U.S.C. § 434(f)(3), but are not properly considered electioneering communications

for any purpose, including disclosure, because the “ads may reasonably be interpreted as

something other than as an appeal to vote for or against a specific candidate, . . . are not the

functional equivalent of express advocacy, and therefore fall outside the scope of

McConnell’s holding,” FEC v. Wisconsin Right to Life, 127 S. Ct. 2652, 2670 (2007)

(“WRTL II”), and, specifically, Citizens United’s planned advertising (the “Ad”) promoting a

new documentary shortly to be released in theaters and in DVD format.
PI Motion 2

Citizens United submits that it meets the standards for a preliminary injunction, i.e., it

has probable success on the merits, it will be irreparably harmed, others will not be substantially harmed, the public interest will be served, and there is no adequate remedy at law.

Pursuant to Local Rule of Civil Procedure 7(m), Citizens United has conferred with

legal counsel for the FEC regarding this motion. The FEC objects to this motion.

Because a preliminary injunction presents no monetary risks to the FEC, Citizens

United requests that bond be set at $1. Fed. R. Civ. P. 65(c).

For the reasons stated in the accompanying Memorandum and Complaint, Citizens

United prays that the Court grant this motion and preliminarily enjoin the FEC from enforcing the challenged provisions as applied until a final hearing on the merits.

Oral argument is requested on this motion because of the complex legal arguments

involved in this case.

Respectfully submitted,

James Bopp, Jr., D.C. Bar #CO0041

Richard E. Coleson*

Jeffrey P. Gallant*

Clayton J. Callen*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

 * pro hac vice motion pending

Counsel for Plaintiff
PI Memorandum

United States District Court

District of Columbia

Citizens United,

Plaintiff,

v.

Federal Election Commission,

Defendant.

Case No.

 THREE-JUDGE COURT

Memorandum in Support of

Preliminary Injunction Motion

_______________

James Bopp, Jr., D.C. Bar #CO0041

Richard E. Coleson*

Jeffrey P. Gallant*

Clayton J. Callen*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

 *pro hac vice motion pending

Counsel for Plaintiff
PI Memorandum i

Table of Contents

Table of Authorities....................................................... i

Introduction. ............................................................... 1

Facts. . .................................................................... 2

Argument. ................................................................. 9

I. Plaintiff Has a Substantial Likelihood of Success on the Merits.. . . . . . . . . . 12

A. Campaign Restrictions Must Be “Unambiguously Campaign

Related” and Properly Tailored to a Sufficient Interest.. . . . . . . . . . . 12

B. As-Applied Challenges Must Be Workable and Protect Core

Political Speech........................................... 23

C. McConnell Did Not Decide This As-Applied Issue.. . . . . . . . . . . . . . 27

D. The Disclosure Requirements Are Unconstitutional As Applied

to the Ads.. ............................................. 28

II. Plaintiff Will Suffer Irreparable Injury Without the Injunction.. . . . . . . . . . . 32

III. The Injunction Will Not Substantially Injure Others.. . . . . . . . . . . . . . . . . . . 34

IV. The Injunction Furthers the Public Interest... . . . . . . . . . . . . . . . . . . . . . . . . . 36

Conclusion. ............................................................... 36
PI Memorandum ii

Table of Authorities

Cases

American Civil Liberties Union of Nevada v. Heller, 378 F.3d 979 (9th Cir. 2004).. . . . . . . 15

Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004). ................................. 15

Apotex Inc. v. U.S. Food and Drug Admin., – F. Supp. 2d –, WL 2695006 (D.D.C. 2007)

................................................................... 10

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). ........................... 18

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990). ................... 22

*Buckley v. Valeo, 424 U.S. 1 (1976). .......................... 1, 2, 12-17, 20, 30, 31

Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006).. . . . . . . . . . . . 16

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006). . . 10, 32, 33

Christian Civic League of Maine v. FEC, No. 06-614, slip op. (D.D.C. Aug. 21, 2007). . . . 19

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981). . . . . . . . . . . . . . . . . . . 14, 31

Delaware & H. Ry. Co. v. United Transp. Union, 450 F. 3d 603 (D.C. Cir. 1971).. . . . . . . . 33

Elrod v. Burns, 427 U.S. 347 (1976). ........................................... 10

*FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986). ................... 14, 20

*FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007). ....................... passim

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). ................... 14, 36

Marks v. United States, 430 U.S. 188 (1977). ..................................... 1

*McConnell v. FEC, 540 U.S. 93 (2003).. . . . . . . . . . . . . . . . 1, 2, 12, 15-17, 20-23, 26-28, 30

New York Times v. Sullivan, 376 U.S. 254 (1964).................................. 17

San Jose Silicon Valley Chamber of Commerce PAC v. San Jose, No. 06-0425) (N.D.

Cal. Sep. 20, 2006).................................................... 16

Thornhill v. Alabama, 310 U.S. 88 (1940). ...................................... 17
PI Memorandum iii

Virginia v. American Bookseller’s Ass’n Inc., 484 U.S. 383 (1988). ................... 33

Wisconsin Right to Life v. FEC, 466 F. Supp. 2d 195 (D.D.C. 2006). . . . . . . . . . . . . . . . . . . 34

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006). .............................. 24

Wisconsin Right to Life v. FEC, No. 04-1260, slip op. (D.D.C. July 23, 2007). . . . . . . . . . . 18

Statutes, Rules, and Constitutional Provisions

11 C.F.R. § 100.29........................................................... 5

11 C.F.R. § 104.20........................................................... 8

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

11 C.F.R. § 110.11........................................................... 6

11 C.F.R. § 114.10........................................................... 3

11 C.F.R. § 114.15........................................................... 8

11 C.F.R. § 114.15(b)(1). ..................................................... 7

11 C.F.R. § 114.15(b)(2). ..................................................... 7

11 C.F.R. § 114.15(b)(3)(ii).................................................... 7

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

2 U.S.C. § 434(f)(3). ......................................................... 5

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

26 U.S.C. § 501(c)(3)......................................................... 3

26 U.S.C. § 501(c)(4)......................................................... 2

Bipartisan Campaign Reform Act of 2002 (“BCRA”). . . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. art. I, § 4. ....................................................... 12

Pub. L. No. 107-155.......................................................... 1
PI Memorandum iv

*U.S. Const. amend. I. .................................................. passim

Other Authorities

Brief of Family Research Council, Free Market Foundation, and Home School Legal

Defense Association as Amici Curiae in Support of Appellee, WRTL II, 540

U.S. 93. ............................................................ 22

http://gullfoss2.fcc.gov/ecd. ................................................... 5

http://www.fec.gov/info/charts_ec_dates_prez.shtml .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

http://www.fec.gov/law/law_rulemakings.shtml#ec07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Neil A. Lewis, White House Got More Files Than Disclosed, N.Y. Times, June 12, 2007. . . 8
The cited opinion is by Chief Justice Roberts, joined by Justice Alito. As the 1

controlling WRTL II opinion, the principal opinion states the holding of the Court and will

herein simply be referred to as WRTL II. See Marks v. United States, 430 U.S. 188, 193

(1977) (“When a fragmented Court decides a case and no single rationale explaining the

result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that

position taken by those Members who concurred in the judgments on the narrowest grounds

. . . .’” (citation omitted)).

PI Memorandum 1

Introduction

Just as FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007) (“WRTL II”), was an

as-applied challenge to a prohibition in the Bipartisan Campaign Reform Act of 2002

(“BCRA”), Pub. L. No. 107-155, 116 Stat. 81, that had been facially upheld in McConnell v.

FEC, 540 U.S. 93 (2003), so this is an as-applied challenge to a BCRA provision facially

upheld in McConnell. In both cases, the provisions are unconstitutional as applied.

McConnell facially upheld the prohibition on corporate electioneering communications, but WRTL II held that communications falling within the electioneering communication

definition (i.e., targeted broadcast ads referencing candidates during defined preelection

periods) were protected issue advocacy unless “the ad is susceptible of no reasonable

interpretation other than as an appeal to vote for or against a specific candidate.” 127 S. Ct. at

2667. As explained in Part I.A, infra, this no-other-reasonable-interpretation test was the 1

latest application of a constitutional first principle recognized in Buckley v. Valeo, 424 U.S. 1

(1976), namely, that to avoid unconstitutional overbreadth all campaign laws may only

regulate First Amendment activity that is “unambiguously related to the campaign of a

particular federal candidate.” Id. at 80. In short, they must be “unambiguously campaign

related.” Id. at 81.
This is an as-applied challenge to the constitutionality of (a) § 201 of the Bipartisan 2

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

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

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

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

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

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

PI Memorandum 2

Buckley expressly applied this unambiguously-campaign-related requirement to the

disclosure of expenditures. Id. at 80. Therefore, it has direct application here.

McConnell facially upheld what shall be called herein the Disclosure Requirements.

2

540 U.S. at 194-202. As set out below, the Disclosure Requirements are unconstitutional as

applied to the activities planned by Citizens United, which activities are not unambiguously

campaign related and so are beyond Congress’ authority to regulate and are protected by the

First Amendment.

Facts

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

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

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

enforcement authority over FECA.

Citizens United was founded in 1988. Its purpose is to promote the social welfare

through informing and educating the public on conservative ideas and positions on issues,

including national defense, the free enterprise system, belief in God, and the family as the
PI Memorandum 3

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

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

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

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

certain ideological, nonstock, nonprofit corporations from the electioneering communication

prohibition),

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

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

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

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

shown in over 100 theaters in 2004. It continues to be sold in DVD format. In 2005, Citizens

United and CUF co-produced Broken Promises: The United Nations at 60, which was an

exposé on the United Nations narrated by noted actor Ron Silver. This film was released in

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

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

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

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

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

2006 Houston International Film Festival. Border War won best feature documentary at the

2006 Liberty Film Festival, a Silver Remi Award at the 2007 Houston International Film

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

February 2007. Border War also qualified for consideration under the Academy of Motion
PI Memorandum 4

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

February 2007.

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

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

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

historical documentary on Amazon.com.

Citizens United is in the final stages of production on a feature length documentary

film on Senator Hillary Clinton entitled Hillary: The Movie. This issue-advocacy film will be

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

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

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

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

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

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

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

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

the Disclosure Requirements applies to the documentary itself.

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

promoting the film. The original version of the ads had images and sound bites of President

George Bush and Senator John Kerry, but those images and sound bites had to be deleted

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

Citizens United received FEC Advisory Opinion 2004-30, stating that its film ads would
PI Memorandum 5

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

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

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

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

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

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

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

127 S. Ct. at 2670. A true and correct transcript of the Ads is attached. See Exhibit 1. Citizens

United has not, and will not, coordinate the production and broadcast of the Ads with any

candidate, campaign committee, political committee, or political party.

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

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

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

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

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

Senator Clinton, a Democratic presidential candidate, and (d) will be made within 30 days

before the following caucuses, conventions, or primaries in the identified states (with

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

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

01/08/08); Michigan Presidential Primary (12/16/07 - 01/15/08); Nevada Presidential
PI Memorandum 6

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

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

Citizens United will broadcast the 30-second, issue-advocacy ad entitled “Questions”

on Fox News cable, and may broadcast it on major television network stations, too. Citizens

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

stations, but not on Fox News. The disclaimer language mandated by FEC rule, see 11 C.F.R.

§ 110.11, takes about 4 seconds to narrate, making 10-second ads virtually impossible and

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

communication.

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

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

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

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

from major national retailers, such as Amazon.com.

Citizens United would like to begin broadcasting its Ads on Monday, December 17,

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

it will not run the Ads absent the requested relief from this Court, Citizens United intends to

begin broadcasting its ads when it gets the relief requested herein and run them through the

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

nominee of her party, Citizens United will again plan to run the Ads (and possibly materiallysimilar ads) on Fox News cable (and possibly other broadcast outlets) within 30 days before
PI Memorandum 7

the Democratic National Committee Convention (electioneering communication period is

07/29/08 - 08/28/08) and within 60 days of the November general election (electioneering

communication period is 09/05/08 - 11/04/08). See http://www.fec.gov/info/charts_ec_dates_prez.shtml. At these times, the Ads will also meet the electioneering

communication definition. Citizens United believes that these are the times when the public’s

interest in Senator Clinton will be at its peak, which is the key to maximizing box office and

DVD sales for Hillary.

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

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

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

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

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

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

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

The Ads are subject to the Disclosure Requirements because the FEC recently refused

requests to exclude from the Disclosure Requirements “electioneering communications” that

meet the Supreme Court’s issue-advocacy safe harbor, WRTL II, 127 S. Ct. at 2667 (no-otherreasonable-interpretation test), or the FEC’s own commercial-transaction safe harbor. See

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

requests to eliminate disclosure for ads not subject to electioneering communication prohibition).
PI Memorandum 8

One of the chief concerns with the Reporting Requirement is the disclosure of donors

who may then be subject to various forms of retaliation by political opponents. On information and belief, the Clinton White House had in its possession over 1,000 FBI files on

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

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

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

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

from a segregated bank established to pay for electioneering communications permissible

under 11 C.F.R. § 114.15” (rule implementing WRTL II by permitting corporate electioneering communications), to which donors will have “donated an amount aggregating $1,000 or

more . . . since the first day of the preceding calendar year.” 11 C.F.R. § 104.20.

Citizens United intends to broadcast materially-similar ads mentioning public figures

who are candidates in materially-similar situations during future electioneering communication periods when public interest is at a peak. There is a strong likelihood that such similar

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

and that such activity is common and regularly recurring for it—as are conflicting electioneering communication periods.

Citizens United intends to broadcast its Ads without complying with the Disclosure

Requirements, but it will not broadcast its Ads if it does not obtain the judicial relief

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

it will not proceed with its activities as planned. Instead, it will be forced to include the

compelled speech of a disclaimer, which (a) requires it to mislead the public by identifying
PI Memorandum 9

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

that such speech is not sufficiently related to elections to be regulated as electioneering and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitution by these substantial burdens on its highly-protected, core “political speech,”

WRTL II, 127 S. Ct. at 2659 (twice), 2660, 2664, 2665 (thrice), 2666 (twice), 2669, 2671-74,

and will suffer irreparable harm. There is no adequate remedy at law.

Argument

Four factors govern temporary restraining orders and preliminary injunctions:
England cited a U.S. Supreme Court case for the proposition that “‘[t]he purpose of a 3

preliminary injunction is merely to preserve the relative positions of the parties until a trial on

the merits can be held,” id. (citation omitted), but neither England nor the case it cited

involved First Amendment expression and association rights in the core area of political

speech. So the status quo argument has no applicability to the present case, which is rather

governed by the holding of Elrod v. Burns, 427 U.S. 347, 373 (1976), that “the loss of First

Amendment freedoms, for even minimal periods of time, unquestionably constitutes

irreparable injury.” See England, 454 F.3d at 299 (“Elrod involved political speech and

freedom of expression”). Where loss of First Amendment freedoms is occurring, maintaining

the status quo is unjust and unjustified. Nor does a presumption of the constitutionality of a

statute apply in the face of the First Amendment’s strict and intermediate standards of review,

which presume unconstitutionality by requiring the government to specially justify burdens

on expression and association.

PI Memorandum 10

To warrant preliminary injunctive relief, the moving party must show (1) a

substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not

substantially injure other interested parties, and (4) that the public interest

would be furthered by the injunction. [Chaplaincy of Full Gospel Churches v.

England, 454 F.3d 290, 297 (D.C. Cir. 2006) (citations omitted) (preliminary

injunction standards). See also Apotex Inc. v. U.S. Food and Drug Admin., –

F. Supp. 2d –, WL 2695006, at *3 (D.D.C. 2007) (applying same standards for

temporary restraining order).]

“A district court must ‘balance the strengths of the requesting party’s arguments in each of

the four required areas,” and “[i]f the showing in one area is particularly strong, an injunction

may issue even if the showings in other areas are rather weak.” England, 454 F.3d at 297.3

The current motion should be considered in light of WRTL II, in which WRTL was

denied a preliminary injunction allowing it to run its 2004 anti-filibuster grassroots lobbying

ads. See WRTL II, 127 S. Ct. at 2661. Yet the four-Justice WRTL II dissent argued that a

preliminary injunction was the proper remedy in lieu of the no-other-reasonable-interpretation test and application rules that WRTL II created:

Although WRTL contends that the as-applied remedy has proven to be

“[i]nadequate” because such challenges cannot be litigated quickly enough to

avoid being mooted, Brief for Appellee 65-66, nothing prevents an advertiser
PI Memorandum 11

from obtaining a preliminary injunction if it can qualify for one, and WRTL

does not point to any evidence that district courts have been unable to rule on

any such matters in a timely way. [127 S. Ct. at 2704 (Souter, J., joined by

Stevens, Ginsburg & Breyer, JJ.).]

The necessary implications of this argument is that there should have been a real possibility

of obtaining a preliminary injunction in the situation that WRTL faced then and that there

should be such a possibility in the situation that Plaintiff now faces. That means that all four

required elements must be capable of being met in this situation. So, for example, the FEC

must not be permitted to trump a preliminary injunction by merely asserting that it is always

injured if it is unable to enforce a statute, no matter how questionable its constitutionality.

In light of WRTL II, it is clear that WRTL’s ads were fully constitutionally protected

issue advocacy and WRTL should have been allowed to run them in 2004 when it sought

judicial relief to do so. It is now clear that WRTL was irreparably harmed, the FEC (and

others) would not have been harmed, and the public interest would have been served if

WRTL’s ads had been run. While determining the likelihood of success on the merits is

necessarily predictive—so that actual success does not necessarily establish that there was an

ascertainable likelihood of success at the time the preliminary injunction motion was

decided—WRTL succeeded on arguments grounded in the same constitutional analysis

applied in the present case. So the likelihood of success is now easy to ascertain in the

present case. Plaintiff’s irreparable harm is also clear in light of WRTL II. See infra Part II. In

view of the high likelihood of success on the merits and the clear and serious irreparable

harm, Plaintiff would only need to make a more modest showing as to concerns about harm

to the FEC or others and about promoting the public interest. However, in light of the high

likelihood of success on the merits, harm to the FEC or others is highly unlikely and a benefit
This is a different issue than the one raised in McConnell where the argument raised 4

was that BCRA “impair[ed] the authority of the States to regulate their own elections.” 540

U.S. at 186. The Court rejected this argument, based on the facts that BCRA only regulated

(continued...)

PI Memorandum 12

to the public is very likely if a preliminary injunction is granted. And WRTL II made clear

that any doubts about protecting issue advocacy should be resolved in favor of speech, not

censorship. 127 S. Ct. at 2659, 2667, 2669 n.7, 2674.

I. Plaintiff Has a Substantial Likelihood of Success on the Merits.

A. Campaign Restrictions Must Be “Unambiguously Campaign Related” and

Properly Tailored to a Sufficient Interest.

The Constitution mandates that “Congress shall make no law . . . abridging the

freedom of speech.” U.S. Const. amend. I. This “‘guarantee has its fullest and most urgent

application precisely to the conduct of campaigns for political office.’” Buckley, 424 U.S. at

15 (citation omitted). If “Congress shall make no law,” then how may government regulate

First Amendment activities related to election campaigns? Buckley provided the answer:

“The constitutional power of Congress to regulate federal elections is well established and is

not questioned by any of the parties in this case.” Id. at 13 (footnote omitted) (emphasis

added). Buckley noted that “Article I, § 4, of the Constitution grants Congress the power to

regulate elections of members of the Senate and House of Representatives.” Id. at 13 n.16

(also citing decisional authorities extending this power to elections for President and Vice

President and to primary elections).

This authority to regulate elections is self-limiting. If the government tries to regulate

First Amendment activity that is not closely and clearly related to election campaigns, it goes

beyond its authority to regulate elections. The key to the Buckley analysis (as stated in its 4
(...continued) 4

private parties, not states, and that the government has “a fully legitimate interest in maintaining the integrity of federal officeholders and preventing corruption” in federal elections. 540

U.S. at 187.

“Independent expenditure” is a term of art referring to an express-advocacy commu- 5

nication that is not coordinated with a candidate so as to become a contribution. See 2 U.S.C.

§ 431(17).

PI Memorandum 13

discussion of a disclosure requirement) is the clearly articulated constitutional question of

whether “the relation of the information sought to the purpose of the Act [regulating

elections] may be too remote,” and, therefore, “impermissibly broad.” Id. at 80 (emphasis

added). The Court requires that government restrict its election-related laws to reach only

First Amendment activities that are “unambiguously related to the campaign of a particular

federal candidate,” id. at 80 (emphasis added), in short, “unambiguously campaign related.”

Id. at 81.

Buckley applied this unambiguously-campaign-related requirement to (1) expenditure

limitations, id. at 42-44; (2) PAC status and disclosure, id. at 79; (3) non-PAC disclosure of

contributions and independent expenditures, id. at 79-81; and (4) contributions. Id. at 23 5

n.24, 78 (“So defined, ‘contributions’ have a sufficiently close relationship to the goals of the

Act [regulating elections], for they are connected with a candidate or his campaign.”).

Because Buckley expressly applied this unambiguously-campaign-related requirement to the

disclosure of expenditures, id. at 80, it has direct application here.

Buckley employed two tests to implement this unambiguously-campaign-related

requirement. First, to implement the requirement for PAC status, the Court created the major

purpose test for “political committees”: “To fulfill the purposes of the Act [regulating
The unambiguously-campaign-related requirement was also affirmed in First 6

National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), which held that corporations could

not be precluded from making either contributions or expenditures for or against ballot

initiatives because “[r]eferenda are held on issues, not candidates for public office. The risk

of corruption perceived in cases involving candidate elections simply is not present in a

popular vote on a public issue.” Id. at 790 (citations omitted). And the requirement was

affirmed again in Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) (“CARC”),

which applied “exacting scrutiny,” id. at 294 (“Placing limits on contributions which in turn

(continued...)

PI Memorandum 14

elections] they need only encompass organizations that are under the control of a candidate or

the major purpose of which is the nomination or election of a candidate. Buckley, 424 U.S. at

79. “Expenditures of candidates and of ‘political committees’ so construed can be assumed to

fall within the core area sought to be addressed by Congress. They are, by definition,

campaign related.” Id. at 79 (emphasis added). This test assures that expenditures are

“unambiguously related to the campaign of a particular federal candidate.” Buckley, 424, U.S.

at 80. Second, to implement the unambiguously-campaign-related requirement as to expenditures, the Court created the express advocacy test, i.e., whether a communication contains

explicit words expressly advocating the election or defeat of a clearly identified candidate.

Buckley, 424 U.S. at 44, 80.

In FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) (“MCFL”), the Court

again recognized the unambiguously-campaign-related requirement in two areas. First, it

applied the express advocacy test to implement the unambiguously-campaign-related

requirement as applied to the prohibition on corporate and union independent expenditures at

2 U.S.C. § 441b. MCFL, 479 U.S. at 249. Second, MCFL reiterated the major purpose test,

which implements the unambiguously-campaign-related requirement as to PAC status. Id. at

253, 262 (major purpose test determined by express-advocacy “independent spending”).6
(...continued) 6

limit expenditures plainly impairs freedom of expression”), to a limit on contributions to a

California ballot initiative committee and held it unconstitutional because it d[id] not advance

a legitimate governmental interest significant enough to justify its infringement of First

Amendment rights.” Id. at 298.

Since McConnell, several courts have embraced the express advocacy construction as 7

an indispensable tool in dealing with vague or overbroad provisions. For example, the Ninth

Circuit in American Civil Liberties Union of Nevada v. Heller, 378 F.3d 979, 985 (9th Cir.

2004), followed the Sixth Circuit in endorsing the express advocacy test as the appropriate

tool where a provision is vague and overbroad:

Nevertheless, as stated recently by the Sixth Circuit, McConnell “left intact the

ability of courts to make distinctions between express advocacy and issue

advocacy, where such distinctions are necessary to cure vagueness and overbreadth in statutes which regulate more speech than that for which the legislature has established a significant governmental interest.” Anderson v. Spear,

(continued...)

PI Memorandum 15

While McConnell, 540 U.S. 93, declared “the express advocacy restriction . . . an

endpoint of statutory interpretation, not a first principle of constitutional law,” the express

advocacy test was created to implement the unambiguously-campaign-related requirement,

which is a first principle of constitutional law. McConnell expressly recognized this by

quoting Buckley’s explanation that the express advocacy construction was done “‘[t]o insure

that the reach’ of the disclosure requirement was ‘not impermissibly broad.’” Id. at 191

(quoting Buckley, 424 U.S. at 80). McConnell also implicitly endorsed the unambiguouslycampaign-related requirement when it stated that “[i]n narrowly reading the FECA provisions

in Buckley to avoid problems of vagueness and overbreadth, we nowhere suggested that a

statute that was neither vague nor overbroad would be required to toe the same express

advocacy line.” Id. at 192. Implicitly then, where a restriction on First Amendment liberties is

vague or overbroad (for reaching beyond things unambiguously campaign related) it must toe

the express advocacy line, or its “functional equivalent.” Id. at 206. McConnell’s facial 7
(...continued) 7

356 F.3d 651, 664-65 (6th Cir. 2004).

See also Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006); San

Jose Silicon Valley Chamber of Commerce PAC v. San Jose, No. 06-0425) (N.D. Cal. Sep.

20, 2006) (Order Granting Plaintiff’s Motion for Summary Judgment and Denying Defendants’ Motion for Summary Judgment).

McConnell also expressly recognized the existence of “issue advocacy,” which it 8

described as “‘discussion of political policy generally or advocacy of the passage or defeat of

legislation,’” id. at 205 (quoting Buckley, 424 U.S. at 48), and of “genuine issue ads” that it

recognized likely lay beyond Congress’ ability to regulate. Id. at 206 n.88. Issue advocacy is

not unambiguously campaign related, as WRTL II recognized. See infra.

PI Memorandum 16

upholding of the prohibition on electioneering communications only “to the extent that [they]

. . . are the functional equivalent of express advocacy,” id., is another reaffirmation of the

unambiguously-campaign-related requirement.8

WRTL II applied the unambiguously-campaign-related requirement to eliminate

overbreadth in the regulation of BCRA’s new “electioneering communications” when it stated

its test for functional equivalence: “[A]n 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.” 127 S. Ct. at 2667. WRTL II reiterated the requirement when

it said that the corporate-form corruption interest does not “extend[] beyond campaign

speech.” Id. at 2672 (emphasis added). So WRTL II’s no-other-reasonable-interpretation test is

the application of the unambiguously-campaign-related requirement to electioneering

communications, just as the express advocacy test was the Court’s application of the

unambiguously-campaign-related requirement to independent expenditures. In light of WRTL

II, there is no longer a “functional equivalent of express advocacy” test, McConnell, 540 U.S.

at 206, because that test has been superseded by the no-other-reasonable-interpretation test.
See also id. at 2672-73 (listing prior concurrences by Justices Brennan and Stevens 9

distinguishing issue advocacy from campaign advocacy).

PI Memorandum 17

WRTL II also reaffirmed that the purpose of the unambiguously-campaign-related

requirement—and its no-other-reasonable-interpretation test applying it—is twofold. Negatively, it confines government within the pale of its constitutional authority to regulate

elections. See supra. Positively, it protects what the Court calls “‘genuine issue ads,’” 127 S.

Ct. at 2659 (quoting McConnell, 540 U.S. at 206 & n.88), 2668 (same), 2673 (same), or “issue

advocacy.” Id. at 2667. WRTL II explained that “[i]ssue advocacy conveys information and 9

educates,” id. at 2667, and reaffirmed Buckley’s statement that, because issue advocacy and

candidate advocacy often look alike, bright-line tests are required to protect issue advocacy

from being chilled, and any doubt must be resolved in favor of free speech:

[W]e have acknowledged at least since Buckley . . . that “the distinction

between discussion of issues and candidates and advocacy of election or defeat

of candidates may often dissolve in practical application.” 424 U.S., at 42.

Under the test set forth above, that is not enough to establish that the ads can

only reasonably be viewed as advocating or opposing a candidate in a federal

election. “Freedom of discussion, if it would fulfill its historic function in this

nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their

period.” Thornhill v. Alabama, 310 U.S. 88, 102 (1940). Discussion of issues

cannot be suppressed simply because the issues may also be pertinent in an

election. Where the First Amendment is implicated, the tie goes to the speaker,

not the censor. [Id. at 2669.]

Lest there be any doubt as to the necessity of speech-protective lines, WRTL II

reiterated that “the benefit of any doubt [goes] to protecting rather than stifling speech,” id. at

2667 (citing New York Times v. Sullivan, 376 U.S. 254, 269-70 (1964)), “in a debatable case,

the tie is resolved in favor of protecting speech,” id. at 2669 n.7, and “the benefit of the doubt

[goes to] speech, not censorship.” Id. at 2674. In other words, free speech about public issues,
WRTL sought a preliminary injunction during the 2006 prohibition period, as part of 10

its ongoing WRTL litigation, to permit it to run this CCPA ad (preliminary injunction was

denied and a decision on the ad was held in abeyance until after WRTL II):

Listen up, parents. Wisconsin requires parental consent before your minor

(continued...)

PI Memorandum 18

especially political ones, is so central and essential to our system of government that it is

better to allow some theoretically-regulable speech to go unrestricted than to chill public

debate. This approach is akin to our criminal jurisprudence, which says that it is better to let a

guilty person go free than to convict an innocent person, except that chilling free speech

affects not only the lone speaker, but also her hearers and our very system of government.

WRTL II reaffirmed what the Court held in Ashcroft v. Free Speech Coalition, 535 U.S. 234

(2002): “The Government may not suppress lawful speech as the means to suppress unlawful

speech. Protected speech does not become unprotected merely because it resembles the latter.

The Constitution requires the reverse.” Id. at 2670 (quoting Ashcroft, 535 U.S. 234 at 255). To

do otherwise would “‘turn[] the First Amendment upside down.’” Id. (citation omitted).

Two post-WRTL II cases further develop the scope of protection for issue advocacy in

the context of electioneering communications—showing applications of the WRTL II noother-reasonable-interpretation test and the underlying unambiguously-campaign-related

requirement. In both of these cases, the FEC and the intervenors (BCRA prime sponsors Sen.

McCain et al.) agreed to a stipulated judgment conceding that the ads at issue were protected

issue advocacy under WRTL II’s test. One of these cases is WRTL III, which held the electioneering communication prohibition unconstitutional as applied to WRTL’s 2006 Child Custody

Protection Act (“CCPA”) advertisement. Wisconsin Right to Life v. FEC, No. 04-1260, slip

op. at 1 (D.D.C. July 23, 2007) (“WRTL III”). The CCPA ad stated the positions of Senators 10
(...continued) 10

daughter can have an abortion. But, she can be taken to Illinois for an abortion

that is kept secret from you. Imagine, your daughter can be taken across state

lines for a major surgical procedure without your knowledge or consent. The

U.S. Senate recently passed a bill to protect parents from secret abortions.

Fortunately, Senator Kohl voted for the rights of parents. But, sadly, Senator

Feingold did not. Your help is urgently needed because some Senators are

holding up further action on the bill. Please call Senators Kohl and Feingold at

202-224-3121 and urge them to stop efforts by the Senate Democratic leadership to hold up a bill which will prevent secret abortions. That’s 202-224-

3121.

CCLM sought judicial protection to run this Crossroads ad (preliminary injunction 11

was denied and the case dismissed for mootness, which decision the Supreme Court reversed):

Our country stands at the crossroads—at the intersection of how marriage will

be defined for future generations. Marriage between a man and a woman has

been challenged across this country and could be declared unconstitutional at

any time by rogue judges. We must safeguard the traditional definition of

marriage by putting it beyond the reach of all judges—by writing it into the

U.S. Constitution. Unfortunately, your senators voted against the Marriage

Protection Amendment two years ago. Please call Sens. Snowe and Collins

immediately and urge them to support the Marriage Protection Amendment

when it comes to a vote in early June. Call the Capitol switchboard at 202-

224-3121 and ask for your senators. Again, that’s 202-224-3121. Thank you

for making your voice heard.

PI Memorandum 19

Feingold and Kohl (the candidate), based on their prior votes, and characterized their

positions. The other case involved a “Crossroads” advertisement that the Christian Civic

League of Maine (“CCLM”) sought to run. This ad stated the candidates’ position on the 11

issue and characterized that position. The district court held the electioneering prohibition

unconstitutional as applied to the Crossroads ad.” Christian Civic League of Maine v. FEC,

No. 06-614, slip op. at 1-2 (D.D.C. Aug. 21, 2007) (“CCLM”). Consequently, there is now no

question that ads stating a candidate’s position and characterizing that position may be fully

protected issue advocacy and excluded from the electioneering communication definition.
As noted, supra, Buckley applied the unambiguously-campaign-related requirement 12

to the definitions of contributions, expenditures, and political committees in both restriction

and reporting contexts, which are subject to differing standards of scrutiny.

PI Memorandum 20

The unambiguously-campaign-related requirement is the unifying constitutional

principle and analysis of the governing precedents here—Buckley, MCFL, McConnell, and

WRTL II. It has been applied by the Supreme Court as a threshold test—regardless of the level

of scrutiny —to assure that restrictions based on government-asserted interests in regulating 12

elections under Article I, § 4 of the Constitution are closely and clearly related to that

authority. See, e.g., Buckley, 424 U.S. at 80-81. It has been applied to determine whether the

Government has a sufficient interest. See WRTL II, 127 S. Ct. at 2667 (“This Court has never

recognized a compelling interest in regulating ads, like WRTL’s, that are neither express

advocacy nor its functional equivalent.”), 2672 (corporate-form corruption interest does not

“extend[] beyond campaign speech”), see also McConnell, 540 U.S. at 167, 170 (First

Amendment activity must “benefit directly federal candidates” for corruption interest to exist

under intermediate scrutiny). And any tailoring analysis as to the relation of a restriction to the

governmental interest in regulating corruption relating to elections must logically establish

that the restriction has a close and clear nexus to elections. Cf. Buckley, 424 U.S. at 80 (“too

remote” statement may be viewed as either a threshold test or as a tailoring analysis).

The unambiguously-campaign-related requirement mandates that the Disclosure

Requirements not be applied to what the Supreme Court calls “‘genuine issue ads,’” WRTL II,

127 S. Ct. at 2659 (quoting McConnell, 540 U.S. at 206 & n.88), i.e., “issue advocacy,” id. at

2667, because issue advocacy is not unambiguously campaign related. WRTL II requires that

issue advocacy—or any ad (regardless of its nature) that is not the functional equivalent of
The controlling opinion made this clear by repeatedly stating that ads that are not the 13

functional equivalent of express advocacy under the no-other-reasonable interpretation test

are to be free from “regulation,” not just prohibition. See WRTL II, 127 S. Ct. at 2671 (“we

reject the contention that issue advocacy may be regulated because express election

advocacy may be”); id. (“A corporate ad expressing support for the local football team could

not be regulated on the ground that such speech is less “core” than corporate speech about an

election”); id. (“This Court has never recognized a compelling interest in regulating ads, like

WRTL’s, that are neither express advocacy nor its functional equivalent. The District Court

below considered interests that might justify regulating WRTL’s ads here, and found none

sufficiently compelling. We reach the same conclusion”); id. at 2664 (“BCRA survives strict

scrutiny to the extent it regulates express advocacy or its functional equivalent”); id. at 2672

(“Issue ads like WRTL’s are by no means equivalent to contributions, and the quid-pro-quo

corruption interest cannot justify regulating them”); id. (“such a prophylaxis-upon-prophylaxis approach to regulating expression is not consistent with strict scrutiny”); id. at 2673

(“the interest recognized in Austin as justifying regulation of corporate campaign speech and

extended in McConnell to the functional equivalent of such speech has no application to issue

advocacy of the sort engaged in by WRTL”); id. at 2672 (“to justify regulation of WRTL’s

ads, this interest must be stretched yet another step to ads that are not the functional equivalent of express advocacy. Enough is enough”); id. at 2659 (“We further conclude that the

interests held to justify restricting corporate campaign speech or its functional equivalent do

not justify restricting issue advocacy”); id. (“we have recognized that the interests held to

justify the regulation of campaign speech and its “functional equivalent” might not apply to

the regulation of issue advocacy”) (citations and quotations omitted); id. at 2671 (“That a

compelling interest justifies restrictions on express advocacy tells us little about whether a

compelling interest justifies restrictions on issue advocacy”).

PI Memorandum 21

express advocacy as determined by the no-other-reasonable-interpretation test—must be free

from all electioneering communication “regulation,” not just the electioneering communication prohibition.

13

From the way that WRTL II was decided, it is clear that Court was deciding the case

based on the nature of the communication, not the nature of WRTL. Thus, issue ads passing

the no-other-reasonable-interpretation test are not unambiguously campaign related and must

re exempted from all regulation. WRTL II’s analysis goes to the definition of “electioneering

communication” itself, which then necessarily mandates that all regulations based on that

definition may only be applied to communications that fail the no-other-reasonable-interpreta-
The nature of WRTL was argued in the Brief of Family Research Council, Free 14

Market Foundation, and Home School Legal Defense Association as Amici Curiae in

Support of Appellee, WRTL II, 540 U.S. 93, prepared by the Stanford Constitutional Law

Center, which argued that all nonprofits should be exempted from the electioneering

communication prohibition because the government had no corporate-form interest as applied

to nonprofits. The nature of the funds that WRTL proposed to use for its ads, if necessary to

obtain judicial relief, was raised in Count II of WRTL’s complaint, which offered to use

funds from a separate bank account containing only funds raised for the purpose from

individuals, which option would have eliminated the corporate-form interest.

Only corporations (and unions for parity) are prohibited from making electioneering 15

communications, based on the corporate-form interest. See McConnell, 540 U.S. at 205.

PI Memorandum 22

tion test and so are truly the functional equivalent of express advocacy. The Court could have

ruled for WRTL based on (1) the nature of WRTL, (2) the nature of the funds used, or (3) the

nature of the ads. The Court chose to decide on the basis of the nature of the ads, although all

three options were argued. A decision based on the nature of WRTL or of its funds would 14

necessarily have addressed the applicability of the corporate-form interest, i.e., whether there

could be a prohibition. A decision based on the nature of the ads, which WRTL II chose, 15

addresses the proper scope of the electioneering communication definition, i.e., are these ads

the functional equivalent of express advocacy, which is unambiguously campaign related?

WRTL argued that its ads were not the functional equivalent of express advocacy. The Court

agreed. Even when WRTL II addressed the corporate-form interest, it did so based on the

nature of WRTL’s ads, not the nature of WRTL: “We hold that the interest recognized in

Austin [v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990),] as justifying regulation

of corporate campaign speech and extended in McConnell to the functional equivalent of such

speech has no application to issue advocacy of the sort engaged in by WRTL.” WRTL II, 127

S. Ct. at 2673 (emphasis added).
PI Memorandum 23

In sum, WRTL II’s no-other-reasonable-interpretation test addresses the electioneering

communication definition because the government may not regulate issue advocacy, which is

not unambiguously campaign related. Since WRTL II was expressly decided on the basis of

what properly fits in the electioneering communication definition, and not on what justifies a

prohibition, WRTL II modified the electioneering communication definition and the Disclosure Requirements may only be applied to communications that both meet the statutory

electioneering communication definition and are the functional equivalent of express advocacy: “[A]n 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.

B. As-Applied Challenges Must Be Workable and Protect Core Political

Speech.

In BCRA, Congress mandated that this Court “advance on the docket and . . . expedite

to the greatest possible extent the disposition of th[is] action,” 116 Stat. 114, and WRTL II

mandated that as-applied challenges must be workable and highly protective of First Amendment rights in order to make them an adequate remedy—to avoid the necessity of overturning

McConnell’s facial upholding of the prohibition at issue. 127 S. Ct. at 2666-67. The principles

underlying that mandate apply to the present case, which should therefore receive the same

treatment required by WRTL II for future as-applied challenges.

WRTL expressly asked the Supreme Court in WRTL II to overrule its facial upholding

of the electioneering communication restrictions in McConnell, 540 U.S. 93, unless the Court

provided the relief of both (a) stating a generally-applicable test to reduce the need for

litigation and (b) making as-applied challenges an adequate remedy for protecting the First
PI Memorandum 24

Amendment liberties of groups seeking to broadcast genuine issue ads by limiting the burdens

of litigation. Brief for Appellee at i, 62, 65-70, WRTL II, 127 S. Ct. 2652.

WRTL described to the Supreme Court how the as-applied remedy had been wholly

inadequate in vindicating its First Amendment rights due to the heavy burdens of expensive,

burdensome, and intrusive discovery and litigation, with relief coming only long after the

effective opportunity to run WRTL’s ads had passed. Id. WRTL described the numerous

depositions to which it was subjected and the fact that it “was required to produce a substantial volume of documents about its inner workings, plans, and finances—all information that

an ideological group would otherwise keep private.” Id. at 10 n.19. And WRTL summarized

the future inadequacy of the as-applied remedy—unless the Supreme Court’s holding made it

adequate by limiting how future litigation should be conducted—as follows:

So any citizen group having the temerity to want to run future ads must (1) plan

well in advance to allow ample litigation time (problematic because the need

for grassroots lobbying frequently arises on short notice), (2) retain a lawyer,

(3) endure the invasion of its privacy by a discovery investigation at the hands

of the FEC and Intervenors (which often will include their political opponents),

and (4) pay the legal expenses and costs to endure the scorched-earth litigation

practices of the federally-funded FEC and the statutorily-permitted Intervenors

in order to get prior permission from a court to run a constitutionally-protected

communication at the core of our system of self-governance by the people. [Id.

at 66.]

WRTL II took explicit notice of the “chill” resulting from “‘costly, fact-dependent

litigation,’” 127 S. Ct. at 2665-66 (quoting Brief for Appellee [FEC] at 39, Wisconsin Right to

Life v. FEC, 546 U.S. 410 (2006) (“WRTL I”)), and set out the example of the burden of

litigation imposed on WRTL in attempting to vindicate its First Amendment liberties:

Consider what happened in these cases. The District Court permitted extensive

discovery on the assumption that WRTL’s intent was relevant. As a result, the

defendants deposed WRTL’s executive director, its legislative director, its
WRTL II said that courts may take judicial notice of “basic background information 16

. . . to put an ad in context—such as whether an ad [is about a current legislative issue]—but

the need to consider such background should not be an excuse for discovery or a broader

inquiry of the sort we have just noted raises First Amendment concerns.” Id. at 2669.

Plaintiff would oppose such intervention for the reasons set out by WRTL in this 17

Court after the WRTL II decision. See Motion to Reconsider and Deny Motion to Intervene

(Docket #148), WRTL v. FEC, 466 F. Supp. 2d 195 (D.D.C. 2006) (No. 04-1260) (explaining

that added burdens caused by intervention and intervenors is contrary to WRTL II’s mandate

(continued...)

PI Memorandum 25

political action committee director, its lead communications consultant, and

one of its fundraisers. WRTL also had to turn over many documents related to

its operations, plans, and finance. Such litigation constitutes a severe burden on

political speech. [Id. at 2666 n.5.]

In response to these identified problems, WRTL II (a) stated a First Amendmentprotective test, id. at 2667, and (b) prescribed how as-applied challenges must be conducted to

assure adequate protection for vital First Amendment liberties. Id. at 2666-67. WRTL II said

that “the proper standard . . . must be objective, focusing on the substance of the communication.” 127 S. Ct. at 2666. There must be “minimal if any discovery, to allow parties to resolve

disputes quickly without chilling speech through the threat of burdensome litigation.” Id.16

There must not be “open-ended . . . factors” that result in “‘complex argument in a trial court

and a virtually inevitable appeal.’” Id. (citation omitted). The litigation “must give the benefit

of any doubt to protecting rather than stifling speech.” Id. at 2667 (citation omitted). See also

id. at 2669 n.7 (restating test and limitations on conduct of as-applied litigation). Because the

stated goal for as-applied challenges is “to resolve disputes quickly without chilling speech

through the threat of burdensome litigation,” id. at 2666, whatever threatens burdensome

litigation must be eliminated, which should include intervention by BCRA’s prime sponsors,

supported by the campaign finance “reform” lobby.17
(...continued) 17

for how as-applied challenges must be conducted, see WRTL II, 127 S. Ct. at 2666-67).

PI Memorandum 26

These as-applied litigation mandates apply with special force to the present situation,

which presents purely legal questions. There is no justification for any discovery. Plaintiff has

not yet run any of the ads that it has verified its intent to broadcast, if permitted. Under WRTL

II, Citizens United’s Ads must be examined as to their substance, without discovery into intent

and effect or any other “complex” theory that might be conjured up. The issues are simple

legal questions of whether there is constitutional authority for the Disclosure Requirements as

applied to communications that are not the functional equivalent of express advocacy. The

government simply needs to meet its burden, if it is able, of proving that the Prohibition meets

the unambiguously-campaign-related requirement as applied to the Plaintiff’s Ads, in order to

justify its serious burdens on First Amendment rights of free expression and association. And

in light of WRTL II, the Court should entertain no novel arguments about an as-applied

challenge being precluded, WRTL II, 127 S. Ct. at 2659, or about McConnell’s facial upholding of the Disclosure Requirements somehow shifting burdens from the FEC to Plaintiff, id. at

2663-64, or some other novel arguments based on bits of McConnell, 540 U.S. 93, plucked

from their context and twisted in their meaning without regard to the underlying First

Amendment-protective analysis. See WRTL I, 546 U.S. at 411 (rejecting FEC’s reading of

footnote out of context and without regard to its plain meaning). This case should be expeditiously decided as a matter of law, based on the simple legal issues presented.
PI Memorandum 27

C. McConnell Did Not Decide This As-Applied Issue.

McConnell did not preclude the present challenge. Its analysis of the Disclosure

Requirements did not even address the distinction between ads that are the functional

equivalent of express advocacy and genuine issue ads, let alone decide whether Congress

could require disclosure as to communications that are not truly electioneering. But from the

discussion in Part I.A, it is clear that, after WRTL II’s narrowing of the “electioneering

communication” definition by imposing the no-other-reasonable-interpretation gloss,

McConnell’s upholding of the Disclosure Requirements for electioneering communications

now applies only to ads that are truly the functional equivalent of express advocacy, i.e., they

are unambiguously campaign related. Moreover, it is doubtful that Congress ever intended that

disclosure be required beyond whatever definition the Supreme Court might impose on

BCRA’s statutory definitions of electioneering communication in order to save it from

overbreadth.

In WRTL I, the Supreme Court unanimously held that, by facially upholding BCRA’s

electioneering communication prohibition, the Court “did not purport to resolve future

as-applied challenges.” 546 U.S. at 412. The Court did so in the face of (a) the FEC’s

argument that the logic of the electioneering communications prohibition precluded exceptions and (b) broadly-worded facial-analysis language in McConnell to the effect that the

Court had “uph[eld] stringent restrictions on all election-time advertising that refers to a

candidate because such advertising will often convey [a] message of support or opposition.”

540 U.S. at 239 (emphasis in original). Such broad language about “all” electioneering

communications being subject to prohibition because some were unambiguously campaign
PI Memorandum 28

related did not mean that the Court would not protect issue advocacy in an as-applied

challenges.

WRTL II reiterated the Court’s rejection of the notion that “McConnell left ‘no room’

for as applied challenges,” 127 S. Ct. at 2659 (citation omitted), and protected issue advocacy

by applying the no-other-reasonable-interpretation test to implement the unambiguouslycampaign-related requirement as applied to the electioneering communication prohibition. Id.

at 2667. Therefore, any broadly-worded facial-analysis language in McConnell’s discussion of

the Disclosure Requirements means neither that the present as-applied claim is precluded nor

that it has already been decided by the logic of McConnell. Moreover, McConnell itself

warned against an overbroad reading of the language of a particular case: “We have long

rigidly adhered to the tenet never to formulate a rule of constitutional law broader than is

required by the precise facts to which it is to be applied for the nature of judicial review

constrains us to consider the case that is actually before us,” 540 U.S. at 192 (citation and

quotation indicators omitted).

D. The Disclosure Requirements Are Unconstitutional As Applied to the Ads.

It is readily apparent from a comparison of Plaintiff’s planned Ads to the

unambiguously-campaign-related requirement that the Disclosure Requirements are unconstitutional as applied to each. It should be noted preliminarily that the Hillary documentary itself

is not subject to the Disclosure Requirements because it contains no express advocacy and will

not be broadcast (so as to fall within an electioneering communication definition). So it

requires neither a disclaimer nor any report disclosing donors. It is simply irrational to say that

taking three clips (as with the “Questions” Ad) from the fully-protected, issue-advocacy movie
PI Memorandum 29

and broadcasting them in an ad to promote the movie must then be subject to both of the

Disclosure Requirements.

The “Wait” and “Pants” ads are 10-second ads that fit both the criteria of issue

advocacy and proposals for a commercial transaction. They are issue advocacy because they

promote an issue-advocacy documentary that the ads promise will let you know “everything

else” about Senator Clinton. Specific public issues are not addressed in these two ads, but they

let the viewer know that there are other issues about this very public figure to be known, and

that they may be learned by watching the documentary. These ads are clearly the sort of

highly-protected, non-electioneering, core “political speech” that WRTL II said could not

constitutionally be permitted to fall within the definition of “electioneering communication.”

WRTL II, 127 S. Ct. at 2659 (“political speech” used twice of issue advocacy), 2660, 2664,

2665 (thrice), 2666 (twice), 2669, 2671-74.

These 10-second ads also fit within the FEC’s own exemption of commercial transactions from the electioneering communication prohibition (although the FEC refused to exempt

such ads from disclosure). Each ad (a) “[p]roposes a commercial transaction, such as purchase

of a book, video, or other product or service, or such as attendance (for a fee) at a film

exhibition or other event,” 11 C.F.R. § 114.15(b)(3)(ii); (b) “[d]oes not mention any election,

candidacy, political party, opposing candidate, or voting by the general public,” id. at

§ 114.15(b)(1); and (c) “[d]oes not take a position on any candidate’s or officeholder’s

character, qualifications, or fitness for office.” Id. at § 114.15(b)(2). That the FEC would

continue to require disclosure as to such ads is simply irrational, and it is clearly inconsistent

with how WRTL II redefined electioneering communications.
It should be recalled that Buckley employed the express advocacy construction, to 18

which McConnell likened some electioneering communications, 540 U.S. at 206 (“functional

equivalent of express advocacy”), precisely to fulfill the unambiguously-campaign-related

requirement. Buckley, 424 U.S. at 39-44, 80-81. Thus, the WRTL II analysis is a transferable

illustration of how the unambiguously-campaign-related requirement must be applied in other

First Amendment contexts, whether or not they involve express advocacy.

PI Memorandum 30

The 30-second “Questions” ad is plainly issue advocacy because, as WRTL II put it,

“[i]ssue advocacy conveys information and educates.” 127 S. Ct. at 2667. “Questions” has the

issue-advocacy attributes of the 10-second ads and also says that “Hillary’s got an agenda,”

which includes being “the closest thing we have in America to a European socialist.” And it,

too, (a) proposes a commercial transaction, (b) mentions no election, candidacy, and so on,

and (c) takes no position on Senator Clinton’s character, qualifications, or fitness for office.

Most importantly, none of the proposed public communications are “unambiguously

related to the campaign of a particular federal candidate.” Buckley, 424 U.S. at 80. This is

clear by looking at the proposed ads and comparing them to WRTL II’s application of the

unambiguously-campaign-related requirement to WRTL’s ads through its no-otherreasonable-interpretation test.18

WRTL II held that Congress could only “regulate,” 127 S. Ct. at 2671-72, “electioneering communications” meeting the statutory electioneering communication definition “if the ad

is susceptible of no reasonable interpretation other than as an appeal to vote for or against a

specific candidate.” 127 S. Ct. at 2667. “Under this test,” WRTL II continued,

WRTL’s three ads are plainly not the functional equivalent of express advocacy. First, their content is consistent with that of a genuine issue ad: The ads

focus on a legislative issue, take a position on the issue, exhort the public to

adopt that position, and urge the public to contact public officials with respect

to the matter. Second, their content lacks indicia of express advocacy: The

ads do not mention an election, candidacy, political party, or challenger; and
Any consideration of contextual matters such as Citizens United’s intent or the 19

actual effect of the Ads on an election may not be considered. Id. at 2664-66. Nor may this

court consider Plaintiff’s opposition to Senator Clinton in other contexts, id. at 2668, nor the

timing of the Ads, id. at 2668, nor whether anything in the Ads has become a campaign issue,

id. at 2669, nor whether there is a federal funds alternative, id. at 2671 n.9, nor whether

Plaintiff could change its Ads to avoid mentioning a candidate. Id. Where there is any doubt,

“we give the benefit of the doubt to speech, not censorship.” Id. at 2674.

PI Memorandum 31

they do not take a position on a candidate’s character, qualifications, or fitness

for office. [Id. ]

Employing a parallel analysis to Citizens United’s Ads reveals that they are likewise

not “unambiguously related to the campaign of a particular federal candidate.” Buckley, 424

U.S. at 80. Applying the no-other-reasonable-interpretation test, reveals that the Ads are

“susceptible of [a] reasonable interpretation other than as an appeal to vote for or against a

specific candidate.” 127 S. Ct. at 2667. That analysis “must be objective, focusing on the

substance of the communication rather than amorphous considerations of intent and effect,”

id. at 2666, and “must give the benefit of any doubt to protecting rather than stifling speech.”

Id. at 2667. Under this test and its required application limitations, the Ads have nothing to do

with “an appeal to vote for or against” Senator Clinton. They have to do with issues and sales.

In short, the Ads are protected genuine issue advocacy. After WRTL II, it is clear that the

unambiguously-campaign-related requirement mandates that communications such as the Ads

must not be regulated as electioneering communications unless they, too, are “susceptible of

no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Id.19

Therefore, the Disclosure Requirements “do[] not advance a legitimate governmental

interest significant enough to justify its infringement of First Amendment rights.” CARC, 454
While it is not necessary to decide the present case, the court should note that in the 20

context of commercial transactions there are particular problems with reporting donors

because both sales and investments may generate income to the sponsoring corporation that

would be reportable as contributions, although those buying products or making investments

have no connection whatever to elections.

PI Memorandum 32

U.S. at 298. The Disclosure Requirements are unconstitutional as applied to these Ads and any

ads that meet the statutory electioneering communication definition but are “susceptible of [a]

reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

WRTL II, 127 S. Ct. at 2667.20

II. Plaintiff Will Suffer Irreparable Injury Without the Injunction.

In addition to having a high likelihood of success on the merits, Plaintiff will suffer

irreparable harm unless they receive the requested injunctive relief. As noted in the initial

discussion of the implications of WRTL II for the present motion, supra Part I, WRTL forever

lost the opportunity to broadcast its fully protected issue ads because it did not receive a

preliminary injunction. It was plainly irreparably harmed.

Here, too, Plaintiff wishes to engage in First Amendment activities that are “‘both

certain and great . . . actual not theoretical,’” England, 454 U.S. at 297 (citation omitted), are

“of such imminence that there is a ‘clear and present’ need for equitable relief to prevent

irreparable harm,” id. (citation and emphasis omitted), and in which “the injury [is] beyond

remediation.” Id. Plaintiff is barred by criminal penalties from engaging in First Amendment

expression and association activities it wishes to do, which “loss of First Amendment

freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

Elrod v. Burns, 427 U.S. 347, 373 (1976). Plaintiff has decided that it will not do its intended

First Amendment activities as planned unless it receives judicial protection, and such self-
The D.C. Circuit has advised looking to the merits in constitutional-rights cases: 21

[I]n cases involving a claim by movant of interference with protected freedoms or other constitutional rights, the finding of irreparable injury cannot

meaningfully be rested on a mere contention of a litigant, but depends on an

appraisal of the validity, or at least the probable validity, of the legal premise

underlying the claim of right in jeopardy of impairment. It often happens that

when the parties present conflicting claims of rights and conflicting fears of

threatened injury, one from the impact of the activity sought to be restrained,

the other from the impact of any injunctive order, the situation realistically

facing the court is this, that one party or the other will be injured whichever

course is taken. A sound disposition in the interest of justice from the process

of discerning and weighing of pertinent interests must depend on a reflective

and attentive appraisal as to the outcome on the merits. [Delaware & H. Ry.

Co. v. United Transp. Union, 450 F. 3d 603, 619-20 (D.C. Cir. 1971).]

PI Memorandum 33

censorship “[i]s a harm that can be realized even without actual prosecution.” Virginia v.

American Bookseller’s Ass’n Inc., 484 U.S. 383, 393 (1988). It has “establish[ed] that [it is] or

will be engaging in constitutionally protected behavior,” which demonstrate[s] that the

allegedly impermissible government action would chill allowable individual conduct.”

England, 454 F.3d at 301. “[Plaintiff’s] ‘First Amendment interests are either threatened or in

fact being impaired at the time relief is sought.’” Id. (citation omitted). This constitutes

irreparable harm.

21

WRTL II expressly rejected a number of arguments by the FEC and Intervenors in that

case that the FEC might resurrect here in arguing that Plaintiff will suffer no irreparable harm.

WRTL II rejected the notion that, because WRTL had the option of doing its issue advocacy

through a political committee (“PAC”) with federal funds, it was not harmed. 127 S. Ct. at

2671 n.9. This means that neither the availability of a federal-funds option nor of an alleged

alter-ego option (which alter-ego notion is erroneous as to PACs and their connected corporations because they are legally separate entities) removed the harm to WRTL in its own
In the WRTL II litigation, the FEC actually opposed the preliminary injunction on 22

the novel theory that this Court’s preliminary injunction would not provide WRTL any

effective protection because in the event WRTL ultimately lost the FEC, or the Attorney

General (if a violation were knowing and willful), could still bring an enforcement action.

See Defendant Federal Election Commission’s Opposition to Plaintiff’s Motion for a

Preliminary Injunction at 40-43, WRTL v. FEC, 466 F. Supp. 2d 195 (D.D.C. 2006) (No. 04-

1260). If the FEC’s novel theory were correct, this Court’s preliminary injunctions would be

meaningless, which the present Plaintiff does not believe is true. And there is no reason to

believe that the Attorney General would not abide by any injunction issued by this Court.

Moreover, the FEC’s novel position is contrary to the position of the four dissenting Justices

in WRTL II who believed that this Court’s preliminary injunction would provide an adequate

remedy to protect a plaintiff’s rights. See WRTL II, 127 S. Ct. at 2704 (Souter, J., joined by

Stevens, Ginsburg & Breyer, JJ.) It is likely that the other Justices would agree that a federal

court’s preliminary injunction is efficacious.

PI Memorandum 34

capacity, using state funds. And WRTL II rejected the notion that a speaker could just change

the message, e.g., by not mentioning a federal candidate, id., because “‘the rule of protection

under the First Amendment [is] that a speaker has the autonomy to choose the content of his

own message.’” Id. (citation omitted).22

Plaintiff’s harms are irreparable and irremediable by monetary damages at law. Its

rights can only be protected by declaratory and injunctive relief.

III. The Injunction Will Not Substantially Injure Others.

As noted in the preliminary discussion of the implications of WRTL II for the present

preliminary injunction motion, supra Part I, WRTL’s broadcast of its fully-constitutionallyprotected issue advocacy would not, and did not, harm anyone. The questions of harm to

others and serving the public interest are, of course, inversely proportional to the likelihood of

success on the merits. As the District of Columbia Circuit said in United Transportation

Union, 450 F.3d at 620, in cases where harms are claimed on both sides, the Court should look
PI Memorandum 35

to the merits. See supra n.20. Given the high likelihood of success on the merits, the likelihood of harm to the FEC or anyone else is proportionally diminished.

Nonetheless, the FEC will doubtless argue that it is harmed if it is denied the opportunity to enforce a statute, as is it did in its successful effort to deny WRTL’s First Amendment

right to timely broadcast its 2004 anti-filibuster ads. But that generalized “harm” cannot

control or it would ban all preliminary injunctions in all cases where the constitutionality of a

statute (or a regulation) is challenged, making Federal Rule of Civil Procedure 65 (and its

authorizing statute) a meaningless rule as applied to the government. Such a generalized

“harm” will always be present for any agency or other enforcement entity—even in the context

of litigation over highly-protected First Amendment activities. The First Amendment is

antithetical to any such strong presumption of the constitutionality of a federal statute that

would underpin the notion that the FEC is automatically harmed by inability to enforce a

statute that has been credibly challenged as to its compliance with First Amendment mandates.

Finally, there is no harm to anyone else. Until BCRA, no one ever thought that

Congress could require disclosure as to First Amendment activity that is not unambiguously

related to the campaign of a candidate for federal office, and post-WRTL II the position has

both been reaffirmed and the type of speech at issue in this case has been excluded from the

electioneering category. To be sure, there may be those who would prefer that the Ads not be

run, but there is no cognizable interest to be considered here where Congress’ ability to

regulate campaign speech is the foundation for regulation. So any possible perceived “harm”

is not cognizable here—especially given the high likelihood of success on the merits of the

count related to that letter.
PI Memorandum 36

IV. The Injunction Furthers the Public Interest.

As with harm to others, the question of the public interest follows the likelihood of

success on the merits. Clearly, “[t]he First Amendment, in particular, serves significant

societal interests.” Bellotti, 435 U.S. at 766. It is clearly in the public interest for Americans to

be able to associate and express themselves freely where there is no cognizable governmental

interest justifying restriction. And it is in the public interest to receive the information that

Plaintiff will offer in its Ads. Therefore, the requested injunctive relief serves the public

interest.

Conclusion

The Disclosure Requirements are unconstitutional as-applied to Citizens United’s

intended First Amendment activities. All the required elements for a temporary restraining

order and a preliminary injunctive relief are met. This Court should expeditiously grant the

requested injunctive relief.

Respectfully submitted,

/s/ James Bopp, Jr.

James Bopp, Jr., D.C. Bar #CO0041

Richard E. Coleson*

Jeffrey P. Gallant*

Clayton J. Callen*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

 * pro hac vice motion pending

Counsel for Plaintiff