No. 08-205 

IN THE

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CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION,

Appellee.

_______________ 

On Appeal 

From The United States District Court 

For The District Of Columbia 

_______________

REPLY BRIEF FOR APPELLANT 

_______________

THEODORE B. OLSON

 Counsel of Record

MATTHEW D. MCGILL

AMIR C. TAYRANI

JUSTIN S. HERRING

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 955-8500 Counsel for Appellant 
RULE 29.6 STATEMENT 

The corporate disclosure statement included in 

the Brief for Appellant remains accurate. 
ii 

TABLE OF CONTENTS 

Page 

RULE 29.6 STATEMENT............................................i 

TABLE OF AUTHORITIES.......................................iv 

REPLY BRIEF FOR APPELLANT ............................1 

I. THE GOVERNMENT’S SUPPRESSION OF 

HILLARY: THE MOVIE CANNOT BE 

RECONCILED WITH THE FIRST 

AMENDMENT ....................................................4 

A. The Government’s Brief Confirms 

That It Has No Compelling 

Interest In Suppressing Video On 

Demand Distribution Of FeatureLength Films............................................5 

B. The Government’s Brief Identifies 

No Compelling Basis For 

Suppressing Corporate Speech 

That Is Funded Almost Entirely 

By Individuals........................................13 

C. The Government’s Brief Confirms 

That Hillary: The Movie Is Open 

To Interpretations Other Than As 

An Appeal To Vote .................................17 

II. THE BURDENS THE GOVERNMENT 

WOULD IMPOSE ON ADVERTISEMENTS 

FOR HILLARY: THE MOVIE VIOLATE THE 

FIRST AMENDMENT ........................................20 

A. BCRA’s Disclaimer, Disclosure, 

And Reporting Requirements 

Cannot Survive Strict Scrutiny.............21 

B. BCRA’s Disclaimer, Disclosure, 

And Reporting Requirements 

Cannot Survive Exacting Scrutiny........22 
iii 

1. The Government’s Informational Interest Is Inapplicable 

To Citizens United’s 

Advertisements................................22 

2. The Government’s Enforcement Interest Is Inapplicable 

To Citizens United’s 

Advertisements................................27 

3. The Burdens Imposed By 

BCRA §§ 201 And 311 

Outweigh Any Government 

Interest In Applying Those 

Speech Restrictions To 

Citizens United................................28

CONCLUSION ..........................................................30 
iv 

TABLE OF AUTHORITIES 

Page(s) 

CASES

Austin v. Mich. State Chamber of 

Commerce, 494 U.S. 652 (1990).....................13, 16 

Bose Corp. v. Consumers Union of the 

United States, Inc., 466 U.S. 485 

(1984)....................................................................12 

Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam) ................15, 21, 23 

Davis v. FEC, 128 S. Ct. 2759 (2008) .......................27 

FEC v. Furgatch, 

807 F.2d 857 (9th Cir. 1987)................................19

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

479 U.S. 238 (1986)........................................14, 21 

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

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

 ....................................6, 7, 9, 16, 18, 19, 21, 22, 30 

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978)........................................15, 16

Hurley v. Irish-Am. Gay, Lesbian & 

Bisexual Group of Boston, 

515 U.S. 557 (1995)..............................................21 

Lamont v. Postmaster Gen., 

381 U.S. 301 (1965)..............................................19 

McConnell v. FEC, 

 540 U.S. 93 (2003)..................................7, 8, 10, 22 
v 

McConnell v. FEC, 

251 F. Supp. 2d 176 (D.D.C. 2003) 

(per curiam)........................................5, 6, 8, 10, 11 

Riley v. Nat’l Fed’n of the Blind, Inc., 

487 U.S. 781 (1988)........................................17, 21 

United States v. Grubbs, 

547 U.S. 90 (2006)................................................14 

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

546 U.S. 410 (2006) (per curiam) ........................12

CONSTITUTIONAL PROVISIONS 

U.S. Const. amend. I ...................................................1

STATUTES

2 U.S.C. § 434(f)(2) ....................................................27 

2 U.S.C. § 434(f)(3)(B)(ii).............................................7 

2 U.S.C. § 434(f)(3)(C) ...........................................7, 13 

2 U.S.C. § 441b(b)(2) ...................................................7 

REGULATIONS

11 C.F.R. § 100.29(b)(7)(i)(G)....................................13 

OTHER AUTHORITIES

60 Minutes (CBS television broadcast 

Mar. 15, 1998) ......................................................19 

148 Cong. Rec. S2135 

(daily ed. Mar. 20, 2002)........................................5 
vi 

Dick Carpenter, Disclosure Costs: 

Unintended Consequences of 

Campaign Finance Reform (2007).......................29 

Brad Stone, Prop 8 Donor Web Site Shows 

Disclosure Is 2-Edged Sword, N.Y. 

Times, Feb. 8, 2009 ..............................................29 
REPLY BRIEF FOR APPELLANT 

The government defends its effort to criminalize 

Citizens United’s political documentary by repeatedly invoking its authority, purportedly exercised 

“[s]ince 1907,” to suppress political expression that 

might influence federal elections by individuals who 

have organized themselves into corporations or labor 

unions. FEC Br. 2; see also id. at 15. 

If the government had started instead with the 

First Amendment’s imperative that “Congress shall 

make no law . . . abridging the freedom of speech” 

(U.S. Const. amend. I (emphasis added)), it would 

have been forced to articulate some compelling constitutional justification for prohibiting dissemination 

of a 90-minute movie by a nonprofit, ideologically 

motivated group concerning the qualifications, character, and fitness of a candidate for the Nation’s 

highest office. Because Citizens United’s documentary engages in precisely the political debate the 

First Amendment was written to protect, only a narrow restriction carefully crafted to prevent actual or 

threatened electoral corruption could be used to suppress it. 

Yet nowhere in its brief does the government 

make any effort to advance a remotely plausible theory as to how Video On Demand dissemination of 

Citizens United’s movie could have been a corrupting 

influence in last year’s Democratic Party presidential 

primaries. The government certainly does not even 

hint that Senator Clinton’s opponents might have 

been so grateful for Citizens United’s documentary 

movie that they might have been tempted to endow 

Citizens United or its members with quid pro quo 

benefits. 
2

Instead, the government rests its case on the 

simple but disturbing proposition that electionrelated speech by a union or corporation (unless licensed by the government as an “MCFL” corporation 

or defined by the government as “news media”) is so 

inherently evil that it must be prohibited and, if attempted, punished as a felony with a five-year prison 

term. The government’s position is so far-reaching 

that it would logically extend to corporate or union 

use of a microphone, printing press, or the Internet 

to express opinions—or articulate facts—pertinent to 

a presidential candidate’s fitness for office. 

Citizens United’s documentary movie is condemned by the government as the functional equivalent of express advocacy because it focuses on, and 

criticizes, Senator Clinton’s character, fitness, and 

qualifications for office. FEC Br. 18. Indeed, it is the 

government’s position that the movie is to be suppressed precisely because it expresses a point of view 

on issues that bear upon a presidential candidate’s 

suitability for the Nation’s highest office. That is a 

perverse basis for pronouncing election-related debate unworthy of First Amendment protection. 

It is the government’s deep suspicion of electionrelated debate—not Citizens United’s efforts to participate in that debate—that “reflects a jaundiced 

view of American democracy.” FEC Br. 25. That 

cynicism is flatly incompatible with any reasoned or 

historically grounded understanding of the First 

Amendment. As applied to Video On Demand dissemination of Hillary: The Movie, BCRA’s criminalization of election-related debate plainly exceeds 

Congress’s sharply limited authority to abridge the 

freedom of speech. 
3

The government’s defense of its application of 

BCRA’s message-distorting disclaimer requirements, 

donor-discouraging disclosure obligations, and resource-consuming reporting mandates is equally indefensible under the First Amendment. Even if, as 

the government asserts, governmental concerns less 

compelling than the prevention of quid pro quo corruption can sustain the imposition on speech of these 

burdens, expenses, and intrusions, the government’s 

justification for doing so collapses under its own 

weight when scrutinized. 

Whatever interest the government may have in 

facilitating the criminal enforcement of BCRA’s substantive restrictions on “electioneering communications,” that interest cannot be extended to communications that the government concedes do not constitute express advocacy or its functional equivalent 

and that are therefore beyond the reach of BCRA’s 

prohibitions. Nor is the governmental interest in 

providing the public “information about participants 

in the electoral process” meaningfully advanced by 

application of the disclaimer, disclosure, and reporting requirements to messages that the government 

acknowledges are “not unambiguously electionrelated,” and, in fact, may “have nothing to do with a 

candidate election.” FEC Br. 12, 46. Even the relaxed scrutiny urged by the government is, after all, 

“exacting,” and requires a “substantial relation” between the specific application of BCRA’s commands 

and an important governmental objective. Id. at 37 

(emphases added). Applying the full panoply of 

BCRA’s disclaimer, disclosure, and reporting requirements to messages that have “nothing” to do 

with a candidate election cannot conceivably provide 

the public with “information about participants in 

the electoral process.” On the other hand, that level 
4

of government intrusiveness and regulatory bureaucracy can, and surely will, stifle constitutionally protected speech that the public has a right to receive. 

I. THE GOVERNMENT’S SUPPRESSION OF 

HILLARY: THE MOVIE CANNOT BE 

RECONCILED WITH THE FIRST AMENDMENT. 

In its opening brief, Citizens United demonstrated that: (1) nothing in BCRA’s legislative record 

or the litigation record compiled in McConnell even 

remotely suggests that feature-length films that 

viewers must affirmatively choose to view pose a serious threat of quid pro quo corruption; (2) as applied 

to the speech of nonprofit ideological corporations 

like Citizens United, the FEC’s one-corporate-dollarand-you’re-in-prison rule is far more restrictive than 

necessary to achieve the government’s asserted (and 

invalid) objective of preventing business corporations 

from expressing political views in a manner that outstrips the public’s support for those views; and (3) 

Hillary: The Movie is open to a reasonable interpretation as a critical assessment of Hillary Clinton’s 

political record and her “‘character, qualifications, 

[and] fitness for office.’” FEC Br. 18 (alteration in 

original). In response, the government and BCRA’s 

sponsors concede the first and third points, and do 

not seriously dispute the second. While each is a sufficient basis for reversal of the judgment below, the 

long-stifled marketplace of political ideas would be 

well-served if the Court reversed on all three 

grounds. 
5

A. The Government’s Brief Confirms 

That It Has No Compelling Interest 

In Suppressing Video On Demand 

Distribution Of Feature-Length 

Films. 

Both the government and BCRA’s congressional 

sponsors concede that neither the Congress that enacted BCRA nor the McConnell Court that upheld 

the statute on its face had before it any evidence at 

all that feature-length films distributed through 

Video On Demand contributed to the corruption of 

officeholders or the appearance of such corruption. 

See FEC Br. 27 (acknowledging “the apparent absence of evidence that such films had been the subject of widespread abuse”). Rather, as BCRA’s sponsors explain, BCRA was “principally motivated by 

one practice[,] corporate and union funding of broadcasts and cablecasts of ads containing candidaterelated advocacy.” McCain Br. 17.1 In keeping with 

that legislative record, the “voluminous” McConnell

litigation record compiled by the government and 

BCRA’s sponsors also focused on “corporate-funded 

ads” and purported to demonstrate that those same 

“corporate-funded broadcast attacks” contributed to 

the appearance of quid pro quo corruption of officeholders. FEC Br. 6, 27; see also McConnell v. FEC, 

251 F. Supp. 2d 176, 555-57, 569-73 (D.D.C. 2003) 

(per curiam) (describing litigation record). 

McConnell’s rejection of the plaintiffs’ facial challenges “was grounded in the evidentiary record be-

 

1 See also 148 Cong. Rec. S2135 (daily ed. Mar. 20, 2002) 

(statement of Senator Snowe) (BCRA’s definition of “electioneering communication” would apply to “so-called issue ads run 

on television and radio only”). 
6

fore the Court.” FEC v. Wisc. Right to Life, Inc., 127 

S. Ct. 2652, 2664 (2007) (“WRTL II”) (opinion of Roberts, C.J.). And “elephantine” though that record 

was (McConnell, 251 F. Supp. 2d at 209 n.40), the 

government can locate within it not one word about 

feature-length documentaries, much less featurelength films distributed through Video On Demand 

to citizens who request them. 

1. In its efforts to apply BCRA § 203 to Video On 

Demand films, the government seeks to unmoor 

McConnell’s holding from the evidentiary record on 

which the government and, in turn, the Court had 

placed such great reliance. The government’s argument proceeds in three steps: (1) The First Amendment allows the government to suppress “all forms of 

express advocacy” by corporations and labor unions, 

including “newspaper advertising or the Internet” 

(FEC Br. 25, 26); (2) express advocacy is constitutionally indistinguishable from the “functional 

equivalent” of express advocacy (id. at 26); and, 

therefore, (3) the First Amendment allows the government to suppress all functional equivalents of express advocacy. See FEC Br. 26 n.8 (claiming that 

limitations on Internet electioneering are not “constitutionally compelled”). Because the First Amendment permits it to restrict any corporate speech that 

it deems the functional equivalent of express advocacy—from broadcast advertisements to yard signs—

“McConnell’s holding” should not be viewed as “limited to 30-second advertisements” and can be extended to cover films selected through Video On Demand. Id. at 11. Or so says the government. 

This is an audacious assertion of governmental 

power. If accepted, it is only by Congress’s grace 

that BCRA’s definition of “electioneering communication” is limited to broadcast communications that 
7

“can be received by 50,000 or more persons” and does 

not embrace the Internet, the printing press, and the 

soapbox. 2 U.S.C. § 434(f)(3)(C).2 But the government’s argument is deeply flawed: Even if one were 

to assume the truth of the government’s major premise that it may prohibit any and all corporate express 

advocacy (a proposition that this Court might have 

assumed in McConnell v. FEC, 540 U.S. 93, 203-05 

(2003), but has never actually held), its minor premise founders on its unstated assumption that the 

“functional equivalent of express advocacy” may be 

identified solely by reference to the content of a message. 

What permits Congress to regulate certain 

classes of election-related speech is not simply its 

content, but rather its supposedly corrupting effects

on officeholders. And the unmistakable holding of 

WRTL II is that speech may be viewed as the functional equivalent of proscribable express advocacy 

only to the extent that such speech is found to “pose 

the same dangers of actual or apparent quid pro quo

arrangements as do large contributions.” WRTL II, 

127 S. Ct. at 2672 (opinion of Roberts, C.J.); see id.

(“Issue ads like WRTL’s are by no means equivalent 

to contributions, and the quid-pro-quo corruption interest cannot justify regulating them.”). 

 

2 In any event, it is not at all clear what the statutory definition of “electioneering communication” actually encompasses. 

BCRA defines the term “expenditure” to include a “payment . . . 

for any . . . electioneering communication” (2 U.S.C. 

§ 441b(b)(2)), but simultaneously excludes from the definition of 

“electioneering communication” any “communication which 

constitutes an expenditure.” Id. § 434(f)(3)(B)(ii). Such hopeless opacity is constitutionally intolerable in a statute that 

makes it a felony to engage in core First Amendment activity. 
8

As the district court in McConnell observed, outside the realm of express advocacy, whether speech 

fairly can be viewed as the equivalent of an outsized 

campaign contribution must be determined not only 

by reference to its content, but also by evaluating its 

efficacy in influencing the outcome of an election. 

This is because the “risk of corrupting the political 

process” corresponds to the “effectiveness” of the 

speech in influencing election outcomes. 251 F. 

Supp. 2d at 646, 647 (Kollar-Kotelly, J.). The Congress that enacted BCRA recognized that the efficacy 

of campaign speech depends on its timing, its reach, 

and—critically, for this case—the form and medium 

in which it is delivered. Thus, “the principal focus of 

the congressional deliberations . . . was traditional 

ads” broadcast in the weeks leading up to the election. McCain Br. 15. Broadcast ads were the “most 

effective form of communicating an electioneering 

message” (McConnell, 251 F. Supp. 2d at 647 (KollarKotelly, J.)), and thus presented the “most acute” 

“phase of the problem.” McConnell, 540 U.S. at 208 

(internal quotation marks omitted). Other media 

were not “as effective as television and radio advertising for conveying an electioneering message” and 

accordingly presented less of a “risk of corrupting the 

political process.” McConnell, 251 F. Supp. 2d at 646 

(Kollar-Kotelly, J.).3 

 

3 This was not only the view of both the district court and 

this Court, but the government as well, which consistently defended BCRA as an appropriately tailored response to the 

unique threat of corruption posed by broadcast advertisements. 

See Brief for the Federal Election Commission at 93, McConnell

(No. 02-1674) (“BCRA § 201’s definition of ‘electioneering communications’ is limited to advertisements distributed by broadcast, cable, or satellite (i.e., television or radio) . . . because 
9

To say, as the government now does, that it may 

restrict corporate electioneering speech without regard to the form or medium in which the speech is 

delivered, is to say that it may restrict corporate 

electioneering speech without regard to whether the 

speech presents a danger of contributing to the quid 

pro quo corruption of officeholders. “This,” as the 

Court said in WRTL II, “is not how strict scrutiny 

works”; “the Government must prove” that “a compelling interest supports each application of a statute 

restricting speech.” 127 S. Ct. at 2664, 2671 (opinion 

of Roberts, C.J.). That the government may have a 

compelling interest in restricting speech that presents the “most acute” risks of corruption cannot itself justify restrictions on speech that presents no 

similar dangers. 

2. The government and its amici alternatively 

contend that, because it harnesses “the power of the 

visual medium to promote a message,” Video On 

Demand distribution of Hillary: The Movie is “[l]ike 

any other television advertisement”; it “poses exactly 

the same threats of potential corruption,” and, accordingly, should be subjected to “the same financing 

restrictions as other broadcast advertisements.” 

FEC Br. 11, 26; McCain Br. 17. But that just blinks 

reality. Except for the fact that it is likely to be 

viewed on a television, a feature-length film viewed 

through Video On Demand is nothing like a “television advertisement.” 

 

[Footnote continued from previous page]

those media reach the largest audience and are considered to be 

the most effective means of communicating an electioneering 

message”); id. at 115 (“broadcast advertisements are much 

more likely than other types of advertisements to cause the fact 

or appearance of [corruption]”). 
10

Neither the government nor BCRA’s sponsors 

dispute that viewers of Video On Demand films must 

“opt-in” to the communication at two levels: The 

viewer first must “dec[ide] to select [the film] from an 

on-screen menu,” and then must choose to invest 90 

minutes or more to view and listen to the film’s message. FEC Br. 25; see also McCain Br. 15 (contrasting “advocacy that members of the public must first 

choose to view” with “broadcast ads that are imposed 

on television viewers”). Indeed, when BCRA’s sponsors complain that Citizens United’s arguments are 

“equally applicable” to “advocacy over the Internet 

(where access to content is typically user-initiated),” 

id. at 16, they implicitly concede Citizens United’s 

argument that “Video On Demand service . . . is 

analogous in every relevant respect to an Internet 

user’s download of video content.” Citizens Br. 26. 

BCRA’s sponsors argue that, notwithstanding 

their self-selecting audiences, opt-in “narrowcasts” 

such as Video On Demand films pose “exactly the 

same threats of potential corruption” as the broadcast advertisements that were the “principal focus of 

the congressional deliberations.” McCain Br. 15, 17. 

But after reviewing the available evidence, the 

McConnell district court explicitly rejected this argument, concluding that communications that require a viewer to “opt-in” do not “influenc[e] federal 

elections to the same degree as . . . broadcast advertising campaigns” and thus present a lesser “risk of 

corrupting the political process.” 251 F. Supp. 2d at 

646. And, at least implicitly, so did this Court when 

it recognized that “televised election-related ads” 

were the “most acute” “phase of the problem.” 

McConnell, 540 U.S. at 207-08. 

Years after embracing it (see supra note 3), the 

government now attacks the McConnell district 
11

court’s reasoning, arguing that, even though Citizens 

United’s film would have been delivered only to a 

self-selecting audience, “it would not follow that the 

film lacked electoral influence.” FEC Br. 25. This 

misconceives Citizens United’s (and the McConnell 

district court’s) argument. Citizens United does not 

argue that Video On Demand transmission of Hillary

(if the FEC had permitted it) would not have had any 

“electoral influence.” Citizens United’s point is the 

same as that made by the McConnell district court 

with respect to webcasts: There is “no evidence” that 

such opt-in communications are “influencing federal 

elections to the same degree as . . . broadcast advertising campaigns.” 251 F. Supp. 2d at 646 (KollarKotelly, J.). When there is “no evidence” of significant “electoral influence,” the government cannot 

presume the existence of a danger of corruption. 

3. Finally, the government argues that Citizens 

United waived its right to rely upon the opt-in nature of its proposed speech by failing to argue below 

that the proposed Video On Demand transmission 

method made it improbable that the film would contribute to corruption. FEC Br. 23. For two reasons, 

the government is wrong. 

First, Citizens United indisputably raised and 

preserved its argument that, “[u]nlike ‘ads,’” “movies 

must be selected by a willing viewer.” Br. Opp. Mot. 

to Dismiss or Affirm 12. And the government does 

not dispute Citizens United’s argument (at 25) that a 

movie’s length, separate and apart from its method 

of transmission, makes it an “opt-in” communication.4

 

4 The government observes that the McConnell record contained evidence of several 30-minute “infomercials” broadcast 
12

Second, even if Citizens United did not invoke 

below the opt-in nature of Video On Demand programming, “in cases raising First Amendment issues,” this Court “has an obligation to ‘make an independent examination of the whole record’ in order 

to make sure that ‘the judgment does not constitute a 

forbidden intrusion on the field of free expression.’” 

Bose Corp. v. Consumers Union of the United States, 

Inc., 466 U.S. 485, 499 (1984). As in cases alleging 

that a communication “is within one of the few 

classes of ‘unprotected’ speech,” the question whether 

political speech presents a risk of corruption requires 

“judicial evaluation of special facts that have . . . constitutional significance.” Id. at 503, 505. Here, those 

“facts . . . about the nature of video-on-demand” (FEC 

Br. 24) are not disputed by the government or its 

amici and are publicly ascertainable in any event. 

This Court should not—indeed, cannot—conclude 

that a film distributed through Video On Demand 

 

[Footnote continued from previous page]

by the National Rifle Association and argues that “nothing 

about the duration of Hillary separates it from” those infomercials. FEC Br. 28. The government seems to be implying that 

this Court decided in McConnell that BCRA’s restrictions could 

be constitutionally applied to the NRA’s infomercials—but

McConnell did no such thing. The NRA introduced its issueadvocacy infomercials to demonstrate that BCRA’s definition of 

“electioneering communication” captured a substantial amount 

of protected issue advocacy. This Court’s rejection of the NRA’s 

facial overbreadth challenge would not preclude the NRA from 

challenging BCRA’s application to its infomercials (Wisc. Right 

to Life, Inc. v. FEC, 546 U.S. 410, 411-12 (2006) (per curiam)), 

and their presence in the McConnell record accordingly nets the 

government nothing. 
13

presents an intolerable risk of corruption without 

examining the characteristics of that medium.5

B. The Government’s Brief Identifies 

No Compelling Basis For Suppressing Corporate Speech That Is 

Funded Almost Entirely By 

Individuals. 

The government’s attempt to prohibit the Video 

On Demand distribution of Hillary also suffers from 

a second—and even more fundamental—

constitutional flaw: Where election-related speech is 

financed almost entirely by individuals gathered under the banner of a nonprofit advocacy corporation, 

like Citizens United, that speech presents no cognizable threat of corruption. Corporate speech funded 

predominantly by individuals does not generate the 

“corrosive and distorting effects of immense aggregations of wealth” that are purportedly associated with 

the electoral advocacy of for-profit corporations (Austin v. Mich. State Chamber of Commerce, 494 U.S. 

652, 660 (1990)) because the “resources” of Citizens 

United and similarly funded nonprofits “are not a 

function of [their] success in the economic market-

 

5 Nor should the Court hold, as the government urges (at 23 

n.7), that a Video On Demand transmission to a single household actually “can be received by 50,000 or more persons.” 2 

U.S.C. § 434(f)(3)(C). When a communication is sent only to a 

single household—a fact universally true of Video On Demand 

transmissions, never disputed by the government, and so affirmatively embraced by its amici that they refer to such 

transmissions as “narrowcast[s]” (McCain Br. 15)—it is manifestly unreasonable to determine the number of people who can 

receive that “narrowcast” communication by reference to “the 

viewership of the cable system.” 11 C.F.R. § 100.29(b)(7)(i)(G) 

(emphasis added).
14

place, but [their] popularity in the political marketplace.” FEC v. Mass. Citizens for Life, Inc., 479 U.S. 

238, 258-59 (1986) (“MCFL”). 

The government urges the Court not to reach 

this issue because it supposedly is not presented in 

this case. FEC Br. 29. But whether the First 

Amendment prohibits the government from restricting corporate political speech funded predominantly 

by individuals is a “predicate to intelligent resolution 

of”—and thus fairly included within—one of the 

questions on which this Court granted review: 

Whether Hillary: The Movie is “subject to regulation 

as an electioneering communication.” J.S. i; United 

States v. Grubbs, 547 U.S. 90, 94 n.1 (2006) (internal 

quotation marks omitted). If the government lacks 

the constitutional authority to prohibit electioneering communications funded predominantly by individuals, then the government necessarily is barred 

from regulating feature-length documentary movies 

financed in that manner. The Court therefore need 

not delay resolution of this important First Amendment question, which has been fully briefed by the 

parties and amici in this case. See, e.g., NRA Br. 9-

28.6

 

6 The government also argues that “the evidentiary record is 

inadequate to determine whether Hillary was in fact financed 

‘overwhelmingly’ by individual donations.” FEC Br. 30. But it 

is the government’s burden to demonstrate that its asserted interest in preventing big corporate money from distorting electoral outcomes was implicated by Citizens United’s speech. The 

record compiled by the government demonstrates that it was 

not. See J.A. 251a-52a (for-profit corporations were responsible 

for only $2,000 of the more than $200,000 that Citizens United 

received from donors who gave $1,000 or more to fund Hillary). 

Strict scrutiny does not permit the government to suppress 

speech on the basis of fanciful speculation that the Video On 
15

On the merits, the government contends that it 

has a compelling interest in silencing the electoral 

advocacy of nonprofit corporations, even when that 

speech is funded overwhelmingly by individuals, because it imagines business corporations could use 

such nonprofits as “conduits” to circumvent BCRA’s 

restrictions on corporate political speech. FEC Br. 

32. The government’s far-fetched speculation that a 

business corporation could exert electoral influence 

by donating small amounts to numerous advocacy 

groups is not remotely the type of concrete proof that 

strict scrutiny requires. If it were, the government 

would possess the constitutional authority to prohibit individuals’ electioneering communications 

simply because a for-profit corporation could conceivably use an individual as a conduit for its own 

expenditures on electioneering communications. 

Such a restriction on individuals’ independent expenditures would be flatly unconstitutional. Buckley 

v. Valeo, 424 U.S. 1, 46 (1976) (per curiam). 

The government’s “conduit” speculation also fails 

because it rests on the false premise that the government has a compelling “interest in preventing the 

use of . . . corporations’ treasury funds for electoral 

advocacy.” FEC Br. 32. This Court rejected the 

same assertion in First National Bank of Boston v. 

Bellotti, 435 U.S. 765 (1978). See id. at 790 (“To be 

sure, corporate advertising may influence the outcome of the vote; this would be its purpose. But the 

fact that advocacy may persuade the electorate is 

hardly a reason to suppress it.”). Subsequent cases 

 

[Footnote continued from previous page]

Demand distribution of Hillary (had it been permitted) might 

have been financed with hundreds of donations of $999.99 or 

less from for-profit corporations. 
16

have found compelling only the much narrower governmental interest in preventing distortion of the 

electoral marketplace by corporate speech that “ha[s] 

little or no correlation to the public’s support for the 

corporation’s political ideas.” Austin, 494 U.S. at 

660. Bellotti rejected that rationale, too (see 435 U.S. 

at 791 & n.30), but, it could not, in any event, be implicated by speech that is funded predominantly by 

individuals (i.e., the “public”). When, as here, corporate dollars are outnumbered by “the public’s support” 99-to-1, the corporate funding does not disturb—much less distort—the electoral marketplace.7 

The government also objects to excluding Citizens United and similarly funded nonprofits from 

BCRA § 203 because doing so would purportedly 

“abandon [MCFL’s] existing bright-line rule for a 

more amorphous inquiry.” FEC Br. 31 (citations 

omitted). But there is nothing “amorphous” about a 

judicial inquiry into whether the majority of the 

funding for a nonprofit corporation’s speech is received from individuals. This standard can be applied just as easily as the existing MCFL framework, 

which inquires whether a nonprofit corporation received any funding from a for-profit corporation. 

And even if there were some marginal administrative benefit to the MCFL standard, efficiency alone 

could never constitute the compelling interest neces-

 

7 If Austin is construed to stand for the broader proposition 

that any corporate advocacy in electoral settings is per se corrupting, then it should be overruled. The growing prevalence of 

massive independent expenditures by wealthy individuals 

(WRTL II, 127 S. Ct. at 2686 (opinion of Scalia, J.))—has revealed the flaws in Austin’s condemnation of corporate independent expenditures, which are no more likely to be corrupting 

than expenditures by individuals. See Citizens Br. 31. Simply 

put, Austin has failed the test of time. 
17

sary to sustain the government’s one-corporatedollar-and-you’re-in-prison funding restriction. See 

Riley v. Nat’l Fed’n of the Blind, Inc., 487 U.S. 781, 

795 (1988) (“the First Amendment does not permit 

the State to sacrifice speech for efficiency”). 

C. The Government’s Brief Confirms 

That Hillary: The Movie Is Open To 

Interpretations Other Than As An 

Appeal To Vote. 

The appeal-to-vote standard articulated in 

WRTL II presents a third constitutional barrier to 

the government’s effort to suppress the distribution 

of Hillary. The movie is not the functional equivalent of express advocacy—and is therefore beyond 

the government’s constitutional authority to proscribe—because it can reasonably be interpreted as a 

critical biographical assessment of Senator Clinton 

that provides viewers with information about her 

public record and political background. 

The government’s defense of its authority to suppress the movie rests on the proposition that WRTL 

II divided the universe of “electioneering communications” into two mutually exclusive categories: issue 

advocacy and express advocacy (and its functional 

equivalent). FEC Br. 20-21. That is a false dichotomy. WRTL II did not purport to hold that all electioneering communications that do not constitute issue advocacy are necessarily express advocacy or its 

functional equivalent and are therefore susceptible 

to prohibition by the government. 

Indeed, the government’s distorted reading of 

WRTL II would lead to absurd results. Consider, for 

example, a hotel advertisement that mentions that a 

presidential candidate recently spent a night there. 

That advertisement is not issue advocacy—it does 
18

not “focus on a legislative issue” or “urge the public 

to contact public officials with respect to the matter”—nor is it an “appeal to vote for or against a specific candidate.” WRTL II, 127 S. Ct. at 2667 (opinion of Roberts, C.J.). Accordingly, there must be an 

additional category of candidate-related speech that 

is neither express advocacy (or its functional equivalent) nor issue advocacy, and that—like issue advocacy—is beyond the government’s constitutional authority to proscribe because it does not generate the 

specter of political corruption. 

Whether Hillary is properly classified as issue 

advocacy or some other form of candidate-related 

speech, the salient fact remains that the movie cannot be classified as the functional equivalent of express advocacy because it is susceptible to reasonable 

interpretations other than as an appeal to vote 

against Senator Clinton. It is simply not the case, as 

the government contends (at 18), that every critical 

examination of a candidate’s “‘character, qualifications, [or] fitness for office’” constitutes an appeal to 

vote for or against that candidate. If it were, then 

the government could ban a documentary movie examining whether Senator McCain—who was born in 

the Panama Canal Zone—is a natural born citizen 

qualified under the Constitution to be President, and 

countless other criticisms (or commendations) of our 

political leaders, even though those communications 

plainly would be susceptible to interpretations other 

than as an appeal to vote. The fact that after “voters 

hear[d] the information” that such a documentary 

conveyed, they might “choose—uninvited by the 

[movie]—to factor it into their voting decisions” does 

not transform a documentary designed to educate 

the public about a candidate’s qualifications for office 

into an appeal to vote for or against that candidate. 
19

WRTL II, 127 S. Ct. at 2667 (opinion of Roberts, 

C.J.). 

For similar reasons, the fact that Hillary presents a critical assessment of Senator Clinton’s political background, character, and fitness for office 

does not convert the movie—which is designed to 

“convey[ ] information and educate[ ]” viewers about 

the political history of an important public figure—

into an appeal to vote against Senator Clinton. 

WRTL II, 127 S. Ct. at 2667 (opinion of Roberts, 

C.J.). Indeed, a critical exposition of the political 

background and policy views of a former First Lady 

and sitting U.S. Senator is precisely the type of “uninhibited, robust, and wide-open debate and discussion that” the First Amendment protects and encourages. Lamont v. Postmaster Gen., 381 U.S. 301, 

307 (1965) (internal quotation marks omitted).8 

Citizens United’s argument that a proscribable 

“appeal to vote” must at a minimum contain an unambiguous call to action is not—as the government 

misleadingly contends (at 22)—a plea for the return 

of the “magic words” framework administered by the 

FEC for nearly three decades after Buckley. There 

are an almost unlimited number of ways that an unambiguous call to electoral action can be communicated. See, e.g., FEC v. Furgatch, 807 F.2d 857, 864 

(9th Cir. 1987) (“Don’t let him do it” is “susceptible of 

no other reasonable interpretation but as an exhortation to vote”). That the government is unable to 

 

8 And it is precisely the type of inquiry undertaken by the 

news media, which—unencumbered by campaign finance 

laws—interviewed many of the same individuals featured in 

Hillary. See, e.g., 60 Minutes (CBS television broadcast Mar. 

15, 1998) (interview with Kathleen Willey about alleged misconduct in the Clinton White House). 
20

identify even a single excerpt from Hillary that unambiguously exhorts viewers to action with respect 

to Senator Clinton does not mean that the “call to action” test lacks content. It instead means that 

Hillary very likely would be interpreted by viewers 

as something other than an appeal to vote. 

II. THE BURDENS THE GOVERNMENT WOULD 

IMPOSE ON ADVERTISEMENTS FOR HILLARY: 

THE MOVIE VIOLATE THE FIRST 

AMENDMENT.

The government contends that it possesses the 

constitutional authority to apply BCRA’s disclaimer, 

disclosure, and reporting requirements to Citizens 

United’s advertisements because “their airing during 

[pre-election] periods would implicate important governmental interests related to the federal electoral 

process.” FEC Br. 36. But even if the interests that 

the government identifies—disseminating electionrelated information to the public and enforcing substantive prohibitions on corporate express advocacy 

and other unambiguous appeals to vote—were sufficient to justify the application of BCRA’s disclaimer, 

disclosure, and reporting requirements to some advertisements that are not express advocacy or its 

functional equivalent, they would be insufficient to 

justify the application of those requirements to Citizens United’s advertisements. Those advertisements 

are not “related to the federal electoral process,” but 

instead encourage viewers to see a movie in the theater, purchase it on DVD, or download it through 

Video On Demand. The mere fact that Citizens 

United’s movie advertisements mention the name of 

a candidate for federal office does not provide the 

government with an interest—“compelling,” “impor-
21

tant,” or otherwise—in applying BCRA §§ 201 and 

311 to those advertisements. 

A. BCRA’s Disclaimer, Disclosure, And 

Reporting Requirements Cannot 

Survive Strict Scrutiny. 

The government argues that BCRA §§ 201 and 

311 should be examined under “exacting scrutiny,” 

which requires a “substantial relation” between a 

“sufficiently important” “governmental interest and 

the information required to be disclosed.” Buckley, 

424 U.S. at 64, 66; see also FEC Br. 37. This Court 

has repeatedly made clear, however, that any content-based restriction on speech must be narrowly 

tailored to further a compelling government interest. 

See WRTL II, 127 S. Ct. at 2664 (opinion of Roberts, 

C.J.); MCFL, 479 U.S. at 256, 261. The fact that 

BCRA’s disclaimer, disclosure, and reporting requirements do not, on their face, “‘prevent anyone 

from speaking’” (FEC Br. 37), but instead compel 

Citizens United to make statements that it “would 

rather avoid” (Hurley v. Irish-Am. Gay, Lesbian & 

Bisexual Group of Boston, 515 U.S. 557, 573 (1995)), 

does not exempt these government-imposed speech 

restrictions from the stringent requirements of strict 

scrutiny. In the absence of a “compelling necessity” 

furthered by “narrowly tailored” means, the government may “not dictate the content of speech” (Riley, 

487 U.S. at 798, 800)—including by requiring Citizens United to run oral and written disclaimers in its 

advertisements for Hillary and disclose the identity 

of the advertisements’ financial backers. 

The government does not even attempt to defend 

the application of these speech restrictions to Citizens United under strict scrutiny. And with good 

reason. The only compelling government interest 
22

that this Court has recognized in the campaignfinance setting—the interest in preventing corruption and the appearance of corruption (WRTL II, 127 

S. Ct. at 2671-72 (opinion of Roberts, C.J.))—is demonstrably inapplicable to Citizens United’s advertisements, which concededly are not express advocacy or its functional equivalent. FEC Br. 36. 

B. BCRA’s Disclaimer, Disclosure, And 

Reporting Requirements Cannot 

Survive Exacting Scrutiny. 

BCRA’s disclaimer, disclosure, and reporting requirements fare no better under the government’s 

watered-down “exacting scrutiny” standard. Neither 

the government’s informational interest nor its enforcement interest is sufficient to sustain the application of these speech restrictions to movie advertisements that are wholly unrelated to any federal 

election. 

1. The Government’s Informational 

Interest Is Inapplicable To Citizens United’s Advertisements. 

The government contends that the application of 

BCRA’s disclaimer, disclosure, and reporting requirements to Citizens United’s advertisements 

promotes an “important” government interest because “‘[i]ndividual citizens seeking to make informed choices in the political marketplace’ have 

‘First Amendment interests’ in learning how electoral advocacy is funded.” FEC Br. 40 (quoting 

McConnell, 540 U.S. at 197). But the government 

never plausibly explains how the application of these 

speech-suppressing requirements to Citizens 

United’s ten- and thirty-second movie advertisements is substantially related to its interest in promoting informed political decision-making. 
23

a. BCRA purports to impose its disclaimer, disclosure, and reporting requirements on any broadcast, cable, or satellite communication that mentions 

a federal candidate during pre-election periods. The 

government apparently concedes, however, that 

there are at least some “electioneering communications” to which its informational interest is inapplicable, and it confines the application of BCRA §§ 201 

and 311 to those advertisements that can “reasonably be construed as electoral advocacy” and that 

therefore “have an obvious potential to affect voting 

behavior.” FEC Br. 42. 

The government’s attempt to narrow the scope of 

BCRA §§ 201 and 311 does not go nearly far enough. 

The government’s contention that these requirements can constitutionally be applied to any advertisement susceptible to being interpreted as electoral 

advocacy disregards this Court’s previous conclusion 

that reporting requirements can only be applied to 

“spending that is unambiguously related to the campaign of a particular federal candidate.” Buckley, 

424 U.S. at 80 (emphasis added). The government’s 

proposed standard is also hopelessly imprecise. To 

demand that—on pain of felony prosecution—a 

speaker guide its conduct based on whether a voter 

might “perceive a connection between an advertisement and an upcoming election” (FEC Br. 42) effectively requires speakers to comply with BCRA’s disclaimer, disclosure, and reporting requirements in 

every one of the inevitably numerous instances 

where the government’s malleable standard does not 

yield a clear result. 

b. Even if one were to disregard prior precedent 

on disclosure requirements and overlook the practical shortcomings of the government’s proposed standard, BCRA’s disclaimer, disclosure, and reporting 
24

requirements still could not be constitutionally applied to Citizens United. 

Citizens United’s advertisements cannot “reasonably be construed as electoral advocacy.” In fact, 

they are not even a distant cousin of “electoral advocacy.” Citizens United’s advertisements are not intended to promote the election or defeat of Senator 

Clinton, but instead to promote the movie Hillary—a 

biographical documentary about a prominent public 

figure—and encourage viewers to see the movie in a 

theater, purchase it on DVD, or download it through 

Video On Demand. While the government may have 

an important interest in helping citizens “‘make informed choices in the political marketplace,’” this 

Court has never suggested that the government has 

an equally important interest in facilitating “informed choices” in the movie marketplace. Indeed, if 

Citizens United’s movie advertisements can reasonably be construed as electoral advocacy, then any

advertisement mentioning a candidate’s name—even 

a restaurant advertisement touting the President’s 

recent visit or a college advertisement listing a U.S. 

Senator as an alumnus—would inevitably be subject 

to BCRA’s disclaimer, disclosure, and reporting requirements, without regard to whether the advertiser actually intended to influence an election. The 

government’s effort to narrow the reach of those 

statutory requirements is thus virtually meaningless 

because, according to the government, the mere mention of a candidate’s name seems to be sufficient to 

convert an advertisement into electoral advocacy. 

Tellingly, the government makes absolutely no effort to explain how the application of BCRA’s disclaimer, disclosure, and reporting requirements to 

Citizens United’s two ten-second advertisements 

would further its interest in enabling citizens to 
25

“learn[ ] how electoral advocacy is funded.” Indeed, 

the government does not mention the ten-second advertisements anywhere in its six-page defense of its 

informational interest—a startling omission given 

that one of the issues before this Court is whether 

BCRA §§ 201 and 311 can constitutionally be applied 

to those advertisements. 

The government’s reluctance to discuss Citizens 

United’s two ten-second advertisements becomes 

more understandable when the content of those advertisements is examined. One of the advertisements informs viewers that, “[i]f you thought you 

knew everything about Hillary Clinton . . . wait ’til 

you see the movie.” Citizens Br. 8 n.1. The other 

humorously presents a “kind word about Hillary 

Clinton” from conservative commentator Ann Coulter—“[s]he looks good in a pant suit”—and then describes Hillary as “a movie about everything else.” 

Id. The advertisements do not mention an election, 

Senator Clinton’s candidacy for office, her views on 

political issues—or anything else remotely related to 

the electoral process. It thus cannot reasonably be 

suggested that requiring Citizens United to report 

these advertisements to the FEC, disclose the advertisements’ financial backers, and broadcast disclaimers identifying itself as responsible for the advertisements is substantially related to “the public interest in full information about participants in the 

electoral process” (FEC Br. 12)—which is probably 

why the government could not bring itself even to articulate that argument. And while applying BCRA 

§§ 201 and 311 to Citizens United’s ten-second advertisements might provide the public with “full information” about their selection of movies, that, of 

course, is not an important government interest. 
26

The government does at least mount a defense of 

its application of BCRA §§ 201 and 311 to Citizens 

United’s thirty-second advertisement, but it fails in 

its attempt to transmogrify that advertisement into 

“electoral advocacy.” That advertisement presents 

three statements about Senator Clinton from public 

commentators—“[S]he’s continually trying to redefine herself and figure out who she is,” “Hillary’s got 

an agenda,” and “Hillary is the closest thing we have 

in America to a European socialist”—and then, like 

one of the ten-second advertisements, declares “[i]f 

you thought you knew everything about Hillary Clinton . . . wait ’til you see the movie.” Citizens Br. 8 

n.1. In the context of an advertisement for a critical 

biographical documentary about Senator Clinton, 

those statements cannot reasonably be construed as 

“electoral advocacy” for or against her candidacy. 

They are instead provocative statements about a 

controversial public figure that attempt to capture 

viewers’ attention and generate interest in the 

documentary movie marketed by Citizens United. In 

another context—in an advertisement urging viewers to “Call Senator Clinton and tell her what you 

think about her voting record,” for example—it may 

well be reasonable to construe the advertisement’s 

statements as “electoral advocacy.” Against the very 

different backdrop of an advertisement promoting 

the distribution of a movie, however, it is not plausible to conclude that Citizens United included these 

statements in its advertising for the purpose of opposing Senator Clinton’s candidacy. 
27

2. The Government’s Enforcement 

Interest Is Inapplicable To Citizens United’s Advertisements. 

The government’s “interest in facilitating the enforcement of substantive regulation of contributions 

and funding sources” provides equally little support 

for the application of BCRA §§ 201 and 311 to Citizens United. FEC Br. 46. 

The government asserts that its “ability to enforce BCRA Section 203’s financing restrictions with 

respect to electioneering communications that are 

the functional equivalent of express advocacy would 

be impeded” if it could not rely on BCRA’s disclaimer, disclosure, and reporting requirements to 

learn that a corporate-funded advertisement has 

been aired. FEC Br. 47. But the government has 

explicitly conceded that Citizens United’s advertisements are not the functional equivalent of express 

advocacy (id. at 36), and this concession categorically 

forecloses its reliance on its enforcement interest to 

regulate those advertisements. See Davis v. FEC, 

128 S. Ct. 2759, 2775 (2008). Where the government 

is aware of an advertisement—and has concluded 

that the advertisement cannot be constitutionally 

prohibited under BCRA § 203—the government’s enforcement interest evaporates. 

Moreover, the enforcement interest is only applicable, if at all, to BCRA’s reporting requirement, 

which requires the person funding an electioneering 

communication to submit a statement to the FEC 

that identifies itself as responsible for the communication. 2 U.S.C. § 434(f)(2). BCRA’s disclaimer and 

disclosure requirements do not provide the FEC with 

any additional information that could facilitate its 

enforcement of BCRA § 203’s restrictions on corpo-
28

rate-funded electioneering communications. And, as 

applied to Citizens United, not even the reporting 

requirement could further the government’s enforcement interest (or its purported informational 

interest, for that matter) because, as the government 

concedes, Citizens United “already discloses its identify at the website referred to in the advertisements.” 

FEC Br. 51. In this case, then, the government’s 

supposed enforcement interest is pure fiction. 

3. The Burdens Imposed By BCRA 

§§ 201 And 311 Outweigh Any 

Government Interest In Applying Those Speech Restrictions 

To Citizens United. 

Even if the government did have an informational 

or enforcement interest in applying BCRA’s disclaimer, disclosure, and reporting requirements to 

Citizens United, those interests would be outweighed 

by the extraordinary burdens that those requirements impose on First Amendment freedoms—

including the risk of harassment and retaliation 

faced by Citizens United’s financial supporters, and 

the substantial compliance costs borne by Citizens 

United. 

The government dismisses the risk of reprisal 

against Citizens United’s supporters because the record does not document previous acts of retaliation. 

But the risk of reprisal against contributors to Citizens United—and other groups that espouse controversial ideological messages—has vastly increased in 

recent years as a result of the same “technological 

advances” that the government touts in BCRA’s defense, which “make it possible . . . for the public to 

review and even search the [contribution] data with 

ease.” FEC Br. 40-41. The widespread economic re-
29

prisals against financial supporters of California’s 

Proposition 8 dramatically illustrate the unsettling 

consequences of disseminating contributors’ names 

and addresses to the public through searchable websites (see, e.g., CCP Br. 13; IJ Br. 13)—some of which 

even helpfully provide those intent upon retribution 

with a map to each donor’s residence. See Brad 

Stone, Prop 8 Donor Web Site Shows Disclosure Is 2-

Edged Sword, N.Y. Times, Feb. 8, 2009. 

The chilling effect on First Amendment expression generated by the specter of retribution is substantiated by empirical studies, which have found 

that “‘[e]ven those who strongly support forced disclosure laws will be less likely to contribute’” where 

their personal information will be disclosed. IJ Br. 

10 (quoting Dick Carpenter, Disclosure Costs: Unintended Consequences of Campaign Finance Reform 8 

(2007)). And this chilling effect on First Amendment 

freedoms is compounded by the extreme administrative burdens generated by BCRA’s disclosure requirements, which are notoriously difficult to implement for even the lawyers and accountants who advocacy groups are inevitably required to retain to 

monitor their disclosure obligations. See id. at 19 

(discussing an empirical study in which none of the 

255 participants was able to comply successfully with 

campaign disclosure requirements). 

The fact that the record does not explicitly document the burdens that BCRA’s disclaimer, disclosure, and reporting requirements impose on Citizens 

United’s First Amendment rights is not a sufficient 

basis for discounting these very real impositions on 

Citizens United’s freedom of expression. In this asapplied challenge, it is the government that bears the 

burden of establishing that BCRA’s speech restrictions are compatible with the First Amendment 
30

(WRTL II, 127 S. Ct. at 2664 (opinion of Roberts, 

C.J.))—and it therefore falls to the government to 

demonstrate that BCRA does not intolerably restrict 

Citizens United’s First Amendment freedoms. The 

government has not met that burden. 

CONCLUSION 

The judgment of the district court should be reversed. 

Respectfully submitted. 

THEODORE B. OLSON

 Counsel of Record

MATTHEW D. MCGILL

AMIR C. TAYRANI

JUSTIN S. HERRING

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 955-8500 

Counsel for Appellant 

March 17, 2009