NO. 08-205

In The

Supreme Court of the United States Supreme Court of the United States

CITIZENS UNITED,

Appellant,

v.

FEDERAL ELECTION COMMISSION,

 Appellee.

On Appeal from the United States

District Court for the District of Columbia

SUPPLEMENTAL BRIEF OF THE CENTER FOR

INDEPENDENT MEDIA, CALITICS.COM, EYEBEAM,

ZACK EXLEY, LAURA MCGANN, AND THE BRENNAN

CENTER FOR JUSTICE AT NYU SCHOOL OF LAW

 AS AMICI CURIAE IN SUPPORT OF APPELLEE

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

July 31, 2009

MONICA YOUN

 Counsel of Record

LAURA MACCLEERY

ANGELA MIGALLY

CIARA TORRES-SPELLISCY

BRENNAN CENTER FOR JUSTICE

 AT NYU SCHOOL OF LAW

161 Ave. of the Americas, 12th Fl.

New York, New York 10013

(212) 998-6730

Monica.youn@nyu.edu

Attorneys for Amici Curiae
i

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

STATEMENT OF INTEREST ................ 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. BCRA’s Electioneering Provisions

Maintain a Longstanding Distinction

Between Corporate Campaign

Contributions and Expenditures and

Other Forms of Political Speech. . . . . . . 6

II. BCRA’s Narrowly Crafted Electioneering

Communications Provisions Leave More

Than Ample “Breathing Room” for

Political Speech to Flourish. . . . . . . . . . . 9

III. Section 203 Does Not Chill the First

Amendment Activities of Journalists and

Commentators in Either Traditional or

New Media. . . . . . . . . . . . . . . . . . . . . . . 11

IV. By Congressional Design, BCRA’s

Electioneering Communications

Regulations Apply Only to Broadcast

Advertisements, and Exclude Other

Forms of Media from the Scope of

Regulation. . . . . . . . . . . . . . . . . . . . . . . 12
ii

V. BCRA’s Media Exemption Is Sufficiently

Flexible to Protect the Speech of

Journalists in Both Traditional and New

Media. . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
iii

TABLE OF AUTHORITIES

CASES

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) . . . . . . . . . . . . 4, 8, 11, 13, 14

Buckley v. Valeo, 

424 U.S. 1 (1976) ........................ 7

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

479 U.S. 238 (1986) . . . . . . . . . . . . . . . . . . . 9, 14

FEC v. Wisconsin Right to Life, 

551 U.S. 449 (2007) ...................... 9

McConnell v. FEC, 

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

Randall v. Sorrell, 

548 U.S. 230 (2006) ...................... 6

STATUTES

2 U.S.C. § 434(f)(3) ......................... 9

2 U.S.C. § 434(f)(3)(B)(i) ..................... 8

2 U.S.C. § 441b . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9

Tillman Act, ch. 420, 34 Stat. 864 (1907) ........ 7

Federal Corrupt Practices Act, ch. 368, § 301, 43

Stat. 1070 (1925) ........................ 7
iv

Smith-Connally Act, ch. 144, § 9, 57 Stat. 163

(1943) ................................. 7

Taft-Hartley Act, ch. 120, 61 Stat. 136 (1947) .... 7

Federal Elections Campaign Act of 1971, Pub.L.

No. 92-255, tit. III, § 316, 86 Stat. 3 (1972) . . . 7

144 Cong. Rec. S974 (1998) . . . . . . . . . . . . . . . . . . 13

REGULATIONS

11 C.F.R. § 100.29(c)(1) . . . . . . . . . . . . . . . . . . . . . 13

11 C.F.R. § 100.73 . . . . . . . . . . . . . . . . . . . . . . . . . 15

11 C.F.R. § 100.94(d) . . . . . . . . . . . . . . . . . . . . . . . 16

11 C.F.R. § 100.132 . . . . . . . . . . . . . . . . . . . . . . . . 15

11 C.F.R. § 100.155(d) . . . . . . . . . . . . . . . . . . . . . . 16

71 Fed. Reg. 18589 . . . . . . . . . . . . . . . . . . . . . . . . 15

OTHER

2007-20 Ad. Op. FEC 1-2 (2007) . . . . . . . . . . . . . . 14

2003-34 Ad. Op. FEC 1-2 (2003) . . . . . . . . . . . . . . 14

David B. Magleby, The Change Election: Money,

Mobilization, and Persuasion in the 2008

Federal Election 59 (2009) . . . . . . . . . . . . . . . . 10

H.R. Rep. No. 93-1239, 93rd Cong., 2d Sess. 

(1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1

1

 The parties have consented to the filing of this brief. Appellant’s

letter of consent has been lodged with the Clerk of Courts.

Appellee has granted a blanket consent. No counsel for a party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than amici curiae or

their counsel made a monetary contribution to its preparation or

submission.

STATEMENT OF INTEREST1

Amici the Center for Independent Media,

Calitics.com, Eyebeam, Zack Exley and Laura McGann

are institutions and individuals who use new

technologies, including the Internet, to produce, create,

and/or distribute news stories, commentary and

editorials about politics, including federal elections.

They share an interest in campaign finance

regulations that protect the rights of journalists and

new media content providers to report and comment

on federal elections through the use of new

technologies. 

Founded in 2006, the Center for Independent

Media is a non-partisan, non-profit organization that

operates an independent on-line news network. The

impetus for creation of the organization was the

hypothesis that a melding of blog technology with the

standards of professional journalism could produce

original news and information, which in turn would

contribute to diversifying public debate around issues

of importance. To this end, the Center for Independent

Media enhances the stability of independent media by

working with on-line journalists and blogs to support

their ability to inform public debate through

journalism that adheres to the highest standards of
2

the profession. The Center operates a new journalist

training program and a new journalist editorial

program. As a result of these programs, over 41,884

original reports have been generated, reaching over

16.4 million Americans.

Calitics.com is an on-line, open source news

organization that posts news stories, commentary and

editorials on California and national politics, including

federal elections. The site features reports and

commentary by Calitics.com’s seven-member Editorial

Board and blog posts from members of the public who

are invited to register with the site. 

Eyebeam is a non-profit organization that provides

artists and technologists the space to use state-of-theart technologies to engage with culture, addressing the

issues and concerns of our time. Since 1997, Eyebeam

has supported more than 125 fellowships and

residents who use new media to engage in both social

and political commentary. Eyebeam’s artists have

used broadcast media to engage in such commentary,

including a project that aggregates Internet content on

broadcast television through a low-power analog

transmitter. The project acts as an aggregator of online video content, encouraging the public to create

shows, vote on the shows, and participate in the

process.

Zack Exley is a leader in the use of new technology

and federal election reporting and commentary. He is

currently a writer for the Internet newspaper, the

HuffingtonPost.com, where he covers politics,

including federal elections. Consequent to his early

use of the Internet as a medium for political

commentary, representatives of then Governor George
3

W. Bush filed an FEC complaint in 1999 that Mr.

Exley’s political Web site, GWBush.com, violated

campaign finance regulations. Mr. Exley is also an

expert in the use of new technologies in campaigning.

He was Director of On-line Organizing and

Communications at Kerry-Edwards 2004 and has

served as Organizing Director at MoveOn.org. 

Laura McGann is an experienced journalist whose

work has been featured in both traditional and new

media outlets. She is currently the editor of The

Washington Independent, an on-line newspaper of

politics and policy. Her work has also been featured in

traditional media, such as the Dow Jones Newswires,

the Associated Press’s national wire and The Wall

Street Journal.

Amicus curiae the Brennan Center for Justice at

NYU School of Law (“Brennan Center”) is a nonpartisan institute dedicated to a vision of effective and

inclusive democracy. The Brennan Center’s Campaign

Finance Project promotes reforms to ensure that our

elections embody the fundamental principle of political

equality underlying the Constitution. Through

legislative efforts and litigation, the Brennan Center

actively supports strong federal campaign finance laws

that meet constitutional standards and encourage

broad candidate participation in federal elections. The

Brennan Center served as co-counsel to IntervenorDefendants Senator John McCain, Senator Russell

Feingold, Representative Christopher Shays,

Representative Martin Meehan, Senator Olympia

Snowe, and Senator James Jeffords in McConnell v.

FEC, 540 U.S. 93 (2003), which upheld the provisions

of the Bipartisan Campaign Reform Act (“BCRA”) that

Appellant now challenges.
4

SUMMARY OF THE ARGUMENT

The Court requested supplemental briefing on the

question of whether the Court should “overrule either

or both Austin v. Michigan Chamber of Commerce, 494

U.S. 652 (1990), and the part of McConnell v. Federal

Election Comm’n, 540 U.S. 93 (2003), which addresses

the facial validity of Section 203 of the Bipartisan

Campaign Reform Act of 2002, 2 U.S.C. § 441b?” 

Amici respectfully submit that the answer to that

question is no. In this case, the Court’s decision to

expand the scope of inquiry from a narrow, fact-driven,

as-applied challenge to encompass facial constitutional

questions undeveloped in the record below has the

potential to transform a relatively straightforward

case – readily resolved on narrow grounds – into a far

more problematic one. Appellant and its supporting

amici invite the Court to decide this case based, not

upon the narrowly tailored statutes and regulations

before it, but as a preventative measure against

hypothetical action Congress or federal regulators

might someday take. The Court should pull back from

the brink of this unwarranted expansion of judicial

power and should, instead, resolve the issues using

deeply embedded and time-worn distinctions that have

allowed political speech by all speakers to flourish

while reducing the risk of corruption and the

appearance thereof. 

Appellant, in its supplemental brief, devotes much

of its attention to the extemporaneous responses of

government counsel to a series of hypothetical

questions posed by the Court. At oral argument, the

Court raised questions with regard to whether Section

203’s limitation to broadcast media was
5

constitutionally required. In responding to these

queries, government counsel suggested that the

Constitution would not necessarily bar such expansion

of the electioneering communications regulation to

other forms of media. (Tr. Oral Argument at 26:20-

27:22.) In so responding, counsel was answering

within the context of the Court’s hypothetical – his

answer had no application to the statutory text of

BCRA or the FEC regulations and opinions

interpreting it. 

Using this oral argument colloquy as a straw man,

Appellant now invokes the threat of government

censorship: “When the government of the United

States of America claims the authority to ban books

because of their political speech, something has gone

terribly wrong.” (Appellant’s Supplemental Br., (dated

July 24, 2009), at 2.) Yet few threats could be more

untethered from the current state of legal practice and

settled law. 

By focusing on speculative hypotheticals rather

than the specifics of this case, Appellant ignores the

very steps that Congress and the FEC have taken to

ensure that Appellant’s Orwellian scenario of federal

“superintendence of printed political speech,” id. at 1,

never comes to pass. In essence, Appellant’s argument

is a slippery slope – it claims that it is infeasible to

draw the dividing line between corporate campaign

advertisements and other political speech. However,

the statutory language and regulations at issue here,

as well as the history of campaign finance regulation

in this country, demonstrate that this slippery slope is

fictitious. 
6

In submitting this brief, amici seek to restore the

Court’s attention to the actual statute and regulations

at issue here. The lines separating corporate-funded

campaign advertisements from other forms of political

speech are largely unproblematic. Indeed, these

categorical determinations have proven sufficiently

adaptable to exempt new and developing forms of

political speech from the regulation of corporate

campaign advertisements. Appellant has provided no

basis for this Court to take the extraordinary step of

overruling key precedents, or the functioning system

of campaign finance regulation predicated upon them.

See, e.g., Randall v. Sorrell, 548 U. S. 230, 244 (2006).

(“[T]he rule of law demands that adhering to our prior

case law be the norm.”).

Moreover, by asking this Court, in effect, to issue

an advisory opinion against some future law that

Congress might someday pass or some future

regulation the FEC might someday promulgate,

Appellant suggests that this Court should overstep the

most significant check on its power – Article III’s

limitation of federal judicial power to actual cases and

controversies. 

ARGUMENT

I. BCRA’s Electioneering Provisions

Maintain a Longstanding Distinction

Between Corporate Campaign

Contributions and Expenditures and

Other Forms of Political Speech.

Throughout the history of campaign finance reform,

lawmakers and courts have consistently maintained

the First Amendment line between regulating
7

corporate contributions and expenditures, on the one

hand, and other forms of political speech deemed to

bear a lesser risk of corruption, on the other. Since the

early twentieth century, Congress has exercised its

constitutional authority to regulate elections by

seeking to prevent corporations and unions from

exerting undue influence or the appearance thereof

over federal candidates. See, e.g., Tillman Act, ch. 420,

34 Stat. 864 (1907) (prohibiting corporate

contributions of “money . . . in connection with” any

federal election); Federal Corrupt Practices Act, ch.

368, § 301, 43 Stat. 1070 (1925) (extending the

prohibition in the Tillman Act to “anything of value”

and making the acceptance of a corporate contribution

a crime); Smith-Connally Act, ch. 144, § 9, 57 Stat.

163, 167 (1943) (extending the prohibitions to unions);

Taft-Hartley Act, ch. 120, 61 Stat. 136 (1947)

(prohibiting expenditures by corporations and unions).

In 1972, Congress enacted the Federal Elections

Campaign Act (FECA), a law that reenacted earlier

statutes prohibiting corporations from using general

treasury funds for contributions and expenditures in

federal elections, while permitting such entities to

make contributions and expenditures through separate

segregated funds. Federal Elections Campaign Act of

1971, Pub. L. No. 92-255, tit. III, § 316, 86 Stat. 3

(1972). After Buckley v. Valeo, 424 U.S. 1 (1976), was

decided, Congress amended FECA to take into account

this Court’s holdings. 

The next major development in the regulation of

corporate political spending was the passage of BCRA

in 2002. This Court upheld nearly every major aspect

of BCRA against facial challenge in McConnell,

including Section 203, which was crafted to plug a

loophole that permitted corporations to use
8

electioneering communications to circumvent FECA’s

regulatory structure. McConnell, 540 U.S. at 204.

Rather than being “outliers,” as Appellant suggests,

this Court’s decisions in Austin and McConnell are

deeply embedded in the case law and federal campaign

finance reform framework.

While advancing the important anti-corruption

goals of campaign finance reform by regulating undue

corporate influence over federal elections, both

lawmakers and courts have consistently crafted

statutes, regulations, and case law to ensure that such

campaign finance regulations do not extend to political

speech that lacks similar potential for corruption. For

example, as the supplemental brief amicus curiae for

the Reporters Committee for Freedom of the Press

(hereafter “Reporters Committee”) sets out, for more

than 50 years, in enacting and interpreting campaign

finance statutes and regulations, lawmakers, courts,

and regulators have respected the special position of

the news media in First Amendment law. (Reporters

Committee Supplemental Br., (dated July 24, 2009), at

6-9.) 

Indeed, BCRA’s media exemption codified this

protection of the news media with respect to the

regulation of electioneering communications, id. at 6;

2 U.S.C. § 434(f)(3)(B)(i), following this same clear

distinction between corporate-funded campaign

advertisements and other forms of political speech. By

Congressional design, electioneering communications

regulations apply only to that narrow subset of

communications that Congress deemed most likely to

raise the specter of corruption or the appearance of

corruption – namely, corporate or union broadcast

advertisements that clearly identify a candidate for
9

federal office, are aired within a certain time period

prior to an election, and target a significant portion of

the relevant electorate. 2 U.S.C. §§ 434(f)(3),

441b(b)(2). Following this Court’s decision in

Wisconsin Right to Life II, to be subject to BCRA’s

funding restrictions, the advertisement, on its face,

must also allow for no reasonable interpretation other

than as an appeal to vote for or against a given

candidate. FEC v. Wisconsin Right to Life (“WRTL

II”), 551 U.S. 449, 469-70 (2007). 

This narrow subset of electioneering

communications is itself subject to a number of crucial

exemptions that ensure that BCRA’s regulation of

corporate and union broadcast electioneering

communications neither extends to nor chills political

speech. These exemptions include, but are not limited

to, the MCFL political non-profit exemption, FEC v.

Mass. Citizens for Life, Inc. (“MCFL”), 479 U.S. 238,

263-64 (1986), as well as BCRA’s statutory exemption

for news media, which we discuss in greater depth in

Section III, infra.

II. BCRA’s Narrowly Crafted Electioneering

Communications Provisions Leave More

Than Ample “Breathing Room” for

Political Speech to Flourish.

Far from constituting a ban, as Appellant

mischaracterizes BCRA’s regulations, the regulations

at issue merely require corporations and unions to use

PACs, rather than general treasury funds, to pay for

electioneering communications. To call this regulation

a ban is mere hyperbole – a citizen might just as well

state that she is banned from contributing more than

$200 to a federal candidate if she fails to provide the
10

requisite contribution disclosure form. Citizens United

and other corporations remain free to fund Hillary:

The Movie and other forms of electioneering through

segregated funds.

More importantly, Appellant’s use of the word

“ban” obscures the fact that Hillary: The Movie only

fell under the FEC’s regulatory purview to the extent

that it was being broadcast through cable within 30

days of a federal primary election. Citizens United

was able to sell the DVD of the movie during that

period and would have been able to distribute Hillary:

The Movie through multiple channels without falling

within BCRA’s definition of an electioneering

communication. (Appellant’s Br., (dated Jan. 8, 2009),

at 5.) This narrowly crafted regulation bears no

resemblance to Appellant’s specter of government

censorship.

Indeed, it is worth noting that, contrary to the dark

picture of government suppression painted by

Appellant, in the years since BCRA was enacted,

political speech has flourished. Non-candidate entities

spent more money on election-related communications

in 2008 than in any previous election cycle. David B.

Magleby, The Change Election: Money, Mobilization,

and Persuasion in the 2008 Federal Election 59 (2009).

Corporations and unions engaged in unprecedented

levels of political communications, including broadcast

advertisements. For example, the U.S. Chamber of

Commerce ran broadcast advertisements mentioning

federal candidates by name that totaled millions of

dollars in spending in 2008 Senate races. Labor unions

also spent millions of dollars on broadcast advertising

directed at federal races. Id. at 80. In light of the

healthy levels of involvement in elections by outside
11

groups – including those falling within the scope of

BCRA’s electioneering communications provisions – as

well as the lack of evidence that there has been any

chilling effect on political speech by either McConnell

or Austin, this Court has no reason to overrule its prior

precedent. 

III. Section 203 Does Not Chill the First

Amendment Activities of Journalists and

Commentators in Either Traditional or

New Media. 

Given the rapidly evolving landscape of media

technology, where blogs and “viral” videos compete for

public attention with the traditional news media, there

is some confusion among “content providers,” legal

commentators, and the general public as to how preInternet legal concepts and frameworks apply in a

post-Internet world. Indeed, in its initial brief amicus

curiae, the Reporters Committee expressed concern

that since the text of BCRA’s news media exemption

explicitly exempts only speech that “[a]ppears in a

news story, commentary, or editorial distributed

through the facilities of [a] broadcast, cable, or satellite

television or radio station,” it might not protect

journalists who distribute their work in other forms or

media. (Reporters Committee Br., (dated Jan. 15,

2009), at 10.) 

As a threshold matter, it is important to recognize

that the scope of the media exemption is not properly

before the Court on the facts of this case. Citizens

United – which purchased air time for Hillary: The

Movie as an advertiser would for an “infomercial” – is

not a new or traditional media organization, nor has it
12

suggested at any point that mere production of a film,

without more, should transform it into such an entity.

Moreover, the Reporters Committee’s concerns

regarding the scope of the media exemption ignore two

crucial facts: First, the scope of regulation of BCRA’s

electioneering communications provision is expressly

limited to broadcast advertisements, which Congress

deemed to pose the greatest risk of corruption and the

appearance of corruption. Second, lawmakers and

regulators have consistently interpreted the media

exemption – which has been recognized in campaign

finance law since the early 1970s – to give the broadest

and most flexible possible protection to journalists and

other content providers, given the rapid evolution in

media technology and institutions.

IV. By Congressional Design, BCRA’s

Electioneering Communications

Regulations Apply Only to Broadcast

Advertisements, and Exclude Other Forms

of Media from the Scope of Regulation.

In enacting BCRA, Congress’s concern was to

counter the risk of corruption inherent in the

proliferation of “sham issue” advertisements.

McConnell v. FEC, 540 U.S. 93, 128-129 (2003) (citing

record evidence that candidates requested “maxed-out”

donors to give additional funds to non-profit

corporations to spend on ‘issue’ advocacy”). In seeking

to combat this corrupting practice, Congress chose to

regulate only electioneering communications in the

broadcast medium, where it deemed the greatest

potential for corruption to lie.
13

Additionally, the legislative history indicates that

Congress specifically considered and rejected the

inclusion of Internet communications within the scope

of electioneering communications. 144 Cong. Rec. S974

(1998) (statement of Sen. Snowe, sponsor of an early

version of BCRA, stating that the definition of an

electioneering communication would not include the

Internet). Later, in a move consistent with legislative

history, the FEC excluded “communications over the

Internet, including electronic mail,” from the definition

of electioneering communications. 11 C.F.R.

§ 100.29(c)(1). 

Thus, the limitation of the scope of the

electioneering communication to broadcast media is no

mere “qualifier” that can be changed by “a mere

‘legislative fix,’” as the Reporters Committee

mistakenly contends. (Reporters Committee

Supplemental Br. at 5 n.3.) Instead, the broadcast

limitation was specifically considered by Congress, and

there is no reason to believe that Congress would

perform an about-face and extend the scope of BCRA

to other forms of media.

V. BCRA’s Media Exemption Is Sufficiently

Flexible to Protect the Speech of

Journalists in Both Traditional and New

Media. 

In the campaign finance reform context, courts and

lawmakers have consistently recognized that media

entities that devote “their resources . . . to the

collection of information and its dissemination to the

public” play a “unique role” that distinguishes them

from other corporations. Austin v. Michigan Chamber

of Commerce, 494 U.S. 652, 667-68 (1990). Thus, even
14

in enacting narrowly tailored campaign finance

regulations such as BCRA, Congress has taken pains

to craft specific exemptions for media entities. This

Court has upheld such exemptions at least three

times. See McConnell v. FEC, 540 U.S. 93, 207-09

(2003); Austin v. Michigan Chamber of Commerce, 494

U.S. 652, 666 (1990); and FEC v. Massachusetts

Citizens for Life, Inc., 479 U.S. 238, 251 (1986). This

“belt and suspenders” approach assures the news

media that even if statutory language or regulations

were to change, their protections would remain

unabated. 

Appellant’s claim that the media exemption applies

only to the “institutional media” is unfounded.

(Appellant’s Supplemental Br. at 1.) Federal

regulators have interpreted the scope of BCRA’s media

exemption to remain in step with advancements in

media technology and with changes in media

institutions. As evidenced by the FEC’s advisory

opinions, the FEC has consistently construed the

media exemption to apply to a variety of nontraditional media. See, e.g., 2007-20 Ad. Op. FEC 1-2

(2007) (national satellite radio channel featuring

content by bloggers and podcasters exempt under

media exemption); 2003-34 Ad. Op. FEC 1-2 (2003)

(production company’s reality television show

simulating a presidential campaign and related Web

sites exempt under media exemption). Thus, in the

event that new developments in media technologies or

institutions cause journalists, bloggers, or other media

producers uncertainty with regard to the scope of the

exemption, they may always seek an advisory opinion

from the FEC.
15

Moreover, the FEC has interpreted the precursor to

BCRA’s media exemption provision – a parallel media

exemption provision under FECA – to offer broad and

flexible protection to non-traditional media, including

Internet communications. The FECA media

exemption was crafted to “assure[] the unfettered right

of the newspapers, TV networks, and other media to

cover and comment on political campaigns.” H.R. Rep.

No. 93-1239, 93rd Cong., 2d Sess. at 4 (1974).

Accordingly, the FEC issued a rule clarifying that it

was Congress’s intent to extend FECA’s “media

exemption to forms of media that did not exist or were

not widespread when Congress enacted the

exemption.” Internet Communications, Final Rules

and Explanation and Justification, 71 Fed. Reg. 18589,

18608 (April 12, 2006). As such, the FEC was to

construe FECA’s media exemption to protect “news

stories, commentaries, and editorials no matter in

what medium they are published.” Id. Thus, in 2006,

the FEC amended its media exemption regulations to

include “any Internet or electronic publication,” 11

C.F.R. §§ 100.73, 100.132. 

Finally, in addition to exempting new forms of

media technology, the FEC has also afforded nontraditional media institutions broad protection. The

FEC has interpreted the media exemption to take

account of the changing structure of media

institutions, so that non-traditional media entities, in

addition to “institutional media,” fall within the scope

of the media exemption. Indeed, as part of its 2006

Internet rulemaking, the FEC explicitly created an

Internet exemption for:

any corporation that is wholly owned by one or

more individuals, that engages primarily in
16

Internet activities, and that does not derive a

substantial portion of its revenues from sources

other than income from its Internet activities.

11 C.F.R. §§ 100.94(d), 100.155(d). Thus, regardless of

the rapid pace of technological and institutional

evolution in the realm of political speech, the media

exemption has consistently proven sufficiently

adaptable and has extended flexible coverage to both

new and traditional media technologies and

institutions.

CONCLUSION

That the rapid advent of new media technologies

and institutions – including the “Video-on-Demand”

technology used in the present case – has left certain

gray areas in which Congress and regulators have yet

to act does not provide this Court with any reason to

overturn an entire body of established constitutional

precedent. To the extent that the Court is concerned

about the treatment of communications that are

available to the viewer on-demand, it should, at

minimum, permit the FEC in the first instance to

conduct a rulemaking to determine the appropriate

contours of a new exemption. 

But even if this Court decides to rule on the merits

of the narrow factual issue presented by this asapplied challenge, we would ask the Court to limit its

opinion to the specific facts and carefully crafted

statutory scheme and regulations before it, rather than

reaching into the realm of hypothetical speculation.

Both Appellant and the Reporters Committee call on

this Court to provide “clarity” as a safeguard against

the unlikely occurrence that Congress will perform an
17

about-face on decades of deference to First

Amendment freedoms in the area of campaign finance

regulation. Amici respectfully urge the Court to reject

this invitation to invade legislative prerogatives; it is

not the role of Article III courts to provide prophylactic

opinions.

Dated: 

July 31, 2009

MONICA YOUN

Counsel of Record

LAURA MACCLEERY

ANGELA MIGALLY

CIARA TORRES-SPELLISCY

BRENNAN CENTER FOR JUSTICE 

AT NYU SCHOOL OF LAW

161 Ave. of the Americas, 12th Fl.

New York, New York 10013

(212) 998-6730 

Monica.youn@nyu.edu

Attorneys for Amici Curiae