No. 08-205

In the Supreme Court of the United States

CITIZENS UNITED, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE APPELLEE

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel

KEVIN DEELEY

Assistant General Counsel

ADAV NOTI

Attorney

Federal Election Commission

Washington, D.C. 20463

EDWIN S. KNEEDLER

Acting Solicitor General

Counsel of Record

MALCOLM L. STEWART

Deputy Solicitor General

WILLIAM M. JAY

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217
(I)

QUESTIONS PRESENTED

1. Whether the three-judge district court correctly

concluded that appellant’s film about then-Senator Hillary Clinton is the functional equivalent of express advocacy under the test set forth in FEC v. Wisconsin Right

to Life, Inc., 127 S. Ct. 2652 (2007).

2. Whether the three-judge district court correctly

held that the reporting and disclaimer requirements of

federal campaign finance law may permissibly be applied to advertisements that are not the functional equivalent of express advocacy.
(III)

TABLE OF CONTENTS

 Page

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

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

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Summary of argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Argument:

I. BCRA’s restrictions on corporate financing of

electioneering communications are constitutional as

applied to appellant’s film . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. This Court has upheld Congress’s power to

restrict corporations from using their treasury

funds to finance express advocacy or its

functional equivalent . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

B. Hillary is the functional equivalent of express

advocacy because it focuses on Senator Clinton’s

candidacy and character . . . . . . . . . . . . . . . . . . . . . . . . 16

C. There is no other constitutional basis for

exempting appellant’s film from the corporate

financing restriction . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1. Video-on-demand has no special constitutional status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2. Hillary’s 90-minute length gives it no special

constitutional status . . . . . . . . . . . . . . . . . . . . . . . . 26

3. The “overtly conservative” nature of

Hillary’s advocacy does not entitle appellant

to use corporate treasury funds to broadcast

the film . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

4. Appellant’s purported use of funds acquired

from individuals to finance the film at issue

here does not entitle it to a constitutional

exemption from BCRA Section 203’s

restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
IV

Table of Contents—Continued: Page

D. Appellant presents no basis for overruling this

Court’s decision in Austin . . . . . . . . . . . . . . . . . . . . . . 33

II. BCRA’s reporting and disclaimer requirements are

constitutional as applied to appellant’s film and

advertisements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

A. Disclosure requirements are subject to

intermediate scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . 37

B. As applied to advertisements that fall within

BCRA’s definition of “electioneering

communication,” but that are not the functional

equivalent of express advocacy, BCRA’s

reporting and disclaimer requirements are

substantially related to important governmental

interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

1. The government has an important interest in

providing information to the public . . . . . . . . . . . 40

2. The government has an important interest in

facilitating enforcement of funding

regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

C. Appellant demonstrates no First Amendment

burden arising from the disclosure provisions . . . . . 48

1. Appellant presents no evidence that the

disclosure requirements would cause

appellant or its donors to suffer reprisals . . . . . . 48

2. Appellant presents no evidence that the

reporting requirements would chill speech . . . . . 50

3. The disclaimer requirements impose no

constitutionally significant burdens . . . . . . . . . . . 51

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
V

TABLE OF AUTHORITIES

Cases: Page

Austin v. Michigan State Chamber of Commerce,

494 U.S. 652 (1990) . . . . . . . . . . . . . . . . . . . . . 15, 20, 32, 33

Brown v. Socialist Workers ’74 Campaign Comm.,

459 U.S. 87 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Buckley v. American Constitutional Law Found.,

Inc., 525 U.S. 182 (1999) . . . . . . . . . . . . . . . . . . . . 37, 43, 50

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

Citizens Against Rent Control v. City of Berkeley,

454 U.S. 290 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Davis v. FEC, 128 S. Ct. 2759 (2008) . . . . . . . . . . . . 35, 37, 48

FEC v. Beaumont, 539 U.S. 146 (2003) . . . . . . . . . . . . . 15, 31

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986) ......................... passim

FEC v. National Right to Work Comm.,

459 U.S. 197 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 15, 33, 35

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

2652 (2007) ................................ passim

First Nat’l Bank v. Bellotti, 435 U.S. 765

(1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 33, 35, 36, 44

Florida League of Prof’l Lobbyists, Inc. v. Meggs,

87 F.3d 457 (11th Cir.), cert. denied, 519 U.S.

1010 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group,

515 U.S. 557 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005) . . 42

Marks v. United States, 430 U.S. 188 (1977) ............ 7
VI

Cases—Continued: Page

McConnell v. FEC:

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

251 F. Supp. 2d 176 (D.D.C. 2003) . . . . . . . . . . . . 4, 27, 50

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334

(1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 51

National Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104

(2d Cir. 2001), cert. denied, 536 U.S. 905 (2002) . . . . . . 54

NCAA v. Smith, 525 U.S. 459 (1999) . . . . . . . . . . . . . . . . . . 24

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377

(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 44

North Carolina Right to Life, Inc. v. Leake, 525 F.3d

274 (4th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Randall v. Sorrell, 540 U.S. 230 (2006) . . . . . . . . . . . . . 34, 35

Riley v. National Fed’n of the Blind of N.C., Inc.,

487 U.S. 781 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

United States v. Harriss, 347 U.S. 612 (1954) . . . . . . . 44, 50

United States v. International Union UAW,

352 U.S. 567 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

United States v. Virginia, 518 U.S. 515 (1996) . . . . . . . . . 37

Washington State Grange v. Washington State

Republican Party, 128 S. Ct. 1184 (2008) . . . . . . . . . . . 52

Constitution, statutes, regulations and rules:

U.S. Const. Amend. I . . . . . . . . . . . . . . . . . . 13, 37, 40, 48, 55

Bipartisan Campaign Reform Act of 2002,

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

§ 201, 116 Stat. 88 .............................. 5

§ 203, 116 Stat. 91 ........................ passim
VII

Statutes, regulations and rules—Continued: Page

§ 311, 116 Stat. 105 ............................. 5

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

et seq. ........................................... 2

2 U.S.C. 431(f)(1) (Supp. IV 1974) ................ 5

2 U.S.C. 431(9)(B)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2 U.S.C. 434(f)(1) .............................. 5

2 U.S.C. 434(f)(2)(E) ........................... 5

2 U.S.C. 434(f)(3)(A)(i) . . . . . . . . . . . . . . . . . . . . . . . 4, 26

2 U.S.C. 434(f)(3)(B)(i) . . . . . . . . . . . . . . . . . . . . . . . 4, 20

2 U.S.C. 441b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

2 U.S.C. 441b(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 25

2 U.S.C. 441b(b)(2) ............................. 4

2 U.S.C. 441b(b)(2)(C) .......................... 3

2 U.S.C. 441d(a)(3) ............................. 5

2 U.S.C. 441d(d)(2) ............................. 6

5 U.S.C. 7323(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

11 C.F.R.:

Section 100.26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Section 100.29(a)(2) ............................... 4

Section 100.29(b)(3)(ii) ............................ 4

Section 100.29(b)(7)(i)(G) . . . . . . . . . . . . . . . . . . . . . . . . . 24

Section 100.29(b)(7)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Section 100.29(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Section 100.155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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

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

Section 104.20(c)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
VIII

Regulations and rules—Continued: Page

Section 110.11(b)(3) ............................... 5

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

Section 110.11(c)(4)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Section 110.11(c)(4)(iii)(A) . . . . . . . . . . . . . . . . . . . . . . . . 53

Section 114.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 30

Section 114.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Sup. Ct. R.:

Rule 14.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Rule 18.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Miscellaneous:

Citizens United: 

Hillary: The Movie (visited Feb. 17, 2009)

<http://www.hillarythemovie.com> . . . . . . . . . . . . . 51

Hype: The Obama Effect (visited Feb. 17, 2009)

<http:// www.hypemovie.com> . . . . . . . . . . . . . . . . . 14

Federal Election Comm’n:

Advisory Op. 2004-30 (Sept 10, 2004) <http://saos.

nictusa.com/aodocs/2004-30.pdf> . . . . . . . . . . . . . . . 20

Disclosure Reports—Filer ID C00295527 (visited

Feb. 17, 2009) <http://query.nictusa.com/cgibin/fecimg/?C00295527> . . . . . . . . . . . . . . . . . . . . . . . 49

Individuals Who Gave to This Committee:

Citizens United Political Victory Fund (visited

Feb. 17, 2009) <http://query.nictusa.com/cgibin/com_ind/C00295527> . . . . . . . . . . . . . . . . . . . . . . 49

Frank Greve, TV Uses Flag, Prayers to Portray

Reagan as Leader, Miami Herald, Sept. 12, 1984,

available in 2008 WLNR 203856 . . . . . . . . . . . . . . . . . . 27
IX

Miscellaneous—Continued: Page

William Safire, Safire’s Political Dictionary (2008) . . . . . 27

Brian Steinberg, Custom National TV Spots Are

Close: Verklin, Advertising Age, Sept. 22, 2008,

available in 2008 WLNR 18294102 . . . . . . . . . . . . . . . . 26

Calvin Woodward, Open Primaries in Texas and

Ohio Will Test Clinton, Hous. Chron., Feb. 24,

2008, available in 2008 WLNR 3699542 . . . . . . . . . . . . 29
(1)

In the Supreme Court of the United States

No. 08-205

CITIZENS UNITED, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE APPELLEE

OPINIONS BELOW

The opinion of the three-judge district court granting

appellee’s motion for summary judgment (J.A. 261a262a) is unreported. The opinion of the three-judge district court denying appellant’s motions for preliminary

injunctions (J.A. 195a-211a) is reported at 530 F. Supp.

2d 274.

JURISDICTION

The decision of the three-judge district court was

entered on July 18, 2008. A notice of appeal was filed on

July 24, 2008 (J.S. App. 22a-23a). The jurisdictional

statement was filed on August 14, 2008. This Court

noted probable jurisdiction on November 14, 2008. The

jurisdiction of this Court rests on Section 403(a)(3) of
2

the Bipartisan Campaign Reform Act of 2002 (BCRA),

Pub. L. No. 107-155, 116 Stat. 113.

STATEMENT

Appellant is a nonprofit corporation that produced a

movie critical of then-Senator Hillary Clinton, who was

at that time a candidate for the Democratic presidential

nomination. Appellant wished to use its treasury funds

to pay cable companies to broadcast the film before and

during the 2008 presidential primary elections, contrary

to a federal prohibition on the use of corporate treasury

funds to finance “electioneering communications” as

defined by federal law. Appellant also sought to run

advertisements promoting the film without complying

with federal reporting and disclaimer requirements.

Appellant filed suit against the Federal Election Commission (Commission or FEC), alleging that those federal financing restrictions and disclosure requirements

were unconstitutional as applied. A three-judge district

court granted summary judgment for the Commission.

1. a. Since 1907, federal law has restricted corporations from using their general treasury funds to influence federal elections. The Federal Election Campaign

Act of 1971 (FECA), 2 U.S.C. 431 et seq., makes it “unlawful * * * for any corporation whatever * * * to

make a contribution or expenditure in connection with

any election” for federal office. 2 U.S.C. 441b(a). The

restriction on a corporation’s independent “expenditure[s]” has been construed to encompass “express advocacy,” i.e., the financing of communications that expressly advocate the election or defeat of a clearly identified

candidate. FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238, 248-249 (1986) (MCFL).
3

The general prohibition on express advocacy by corporations in federal elections has two principal exceptions. First, a corporation may establish a “separate

segregated fund,” commonly called a political action

committee (PAC), to finance those disbursements.

2 U.S.C. 441b(b)(2)(C). The money in a corporation’s

PAC, which is raised from individuals associated with

the corporation, can be contributed directly to candidates for federal office, and it may be used without limitation to pay for independent expenditures to communicate to the general public the corporation’s views on

such candidates.

Second, this Court has held that certain small, ideologically-oriented corporations may use their treasury

funds for express advocacy notwithstanding the general

financing restriction. That exception applies to corporations that (1) were “formed for the express purpose of

promoting political ideas, and cannot engage in business

activities”; (2) had “no shareholders or other persons affiliated so as to have a claim on its assets or earnings”;

and (3) were “not established by a business corporation

or a labor union, and [had a] policy not to accept contributions from such entities.” MCFL, 479 U.S. at 264;

see McConnell v. FEC, 540 U.S. 93, 210-211 (2003);

11 C.F.R. 114.10 (implementing MCFL exception). Corporations possessing these characteristics are commonly

referred to as “MCFL organizations.” E.g., McConnell,

540 U.S. at 210.

b. Section 203 of BCRA extended the longstanding

ban on corporate express electoral advocacy to an additional category of political spending. 116 Stat. 91. After

this Court’s decision in Buckley v. Valeo, 424 U.S. 1

(1976) (per curiam), corporations and labor unions

crafted political communications that avoided the so-
4

1 MCFL organizations are excepted. See McConnell, 540 U.S. at

211.

called magic words of express electoral advocacy. They

financed those communications with “hundreds of millions of dollars” from their general treasuries “‘while

concealing their identities from the public,’” including

by “‘hiding behind dubious and misleading names.’”

McConnell, 540 U.S. at 127, 196-197 (quoting McConnell

v. FEC, 251 F. Supp. 2d 176, 237 (D.D.C. 2003) (threejudge court)). “Congress enacted BCRA to correct the

flaws it found in the existing system.” Id. at 194.

Accordingly, Congress required any corporation or

labor union that sponsors an “electioneering communication” to pay for it with PAC rather than general treasury funds. See 2 U.S.C. 441b(a) and (b)(2).1

 The term

“electioneering communication” is defined, in the context of elections for President or Vice President, as a

“broadcast, cable, or satellite communication” that (1)

refers to a clearly identified candidate; and (2) is made

within 60 days before a general election, within 30 days

before a presidential nominating convention, or within

30 days before a presidential primary election in the

state holding that primary. 2 U.S.C. 434(f)(3)(A)(i); 11

C.F.R. 100.29(a)(2) and (b)(3)(ii). The definition generally excludes any broadcast “communication appearing

in a news story, commentary, or editorial.” 2 U.S.C.

434(f)(3)(B)(i).

2. a. Federal law has also long required disclosure

of the dollar amounts expended on campaign activity.

FECA required donors to disclose not only contributions

to political candidates, but also “the use of money or

other valuable assets ‘for the purpose of . . . influencing’ the nomination or election of candidates for federal
5

office.” Buckley, 424 U.S. at 77 (quoting 2 U.S.C.

431(f)(1) (Supp. IV 1974)). The Court in Buckley upheld

that requirement after construing it to avoid vagueness

concerns. Id. at 76-84.

b. BCRA Section 201 added a requirement that any

person who spends more than $10,000 to broadcast an

electioneering communication must promptly file a comparable disclosure statement with the Commission. 2

U.S.C. 434(f)(1). The statement must identify the person making the disbursement; the amount and date of

the disbursement; and, in the case of an electioneering

communication made by a corporation, all those who

contributed “$1,000 or more to the corporation * * *

for the purpose of furthering electioneering communications.” 11 C.F.R. 104.20(c). If the disbursement is made

out of a “segregated bank account” established for electioneering communications, the report need only identify those who contributed $1000 or more to that segregated account. 2 U.S.C. 434(f)(2)(E); 11 C.F.R.

104.20(c)(7).

c. BCRA Section 311 added a separate requirement

that a televised electioneering communication must include both written and oral disclaimers. The screen

must display (1) “the name and permanent street address, telephone number, or World Wide Web address

of the person who paid for the communication,” and (2)

a statement “that the communication is not authorized

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

441d(a)(3); 11 C.F.R. 110.11(b)(3). The communication

must also include a statement that the entity funding the

communication “is responsible for the content of this

advertising,” and that statement must be both (1) made

orally by a representative of the entity making the communication and (2) printed “for a period of at least 4 sec-
6

onds” in text meeting specified size and contrast requirements. 2 U.S.C. 441d(d)(2); 11 C.F.R. 110.11(c)(4).

3. Soon after BCRA was enacted, appellant and

other plaintiffs challenged the constitutionality of numerous BCRA provisions, including the reporting and

disclaimer requirements that are at issue in this appeal.

See Br. for Appellants Congressman Ron Paul, et al., at

iii, McConnell, supra (No. 02-1747). This Court rejected

the plaintiffs’ facial challenges to the corporate-funding

restrictions, reporting obligations, and disclaimer requirements applicable to electioneering communications.

The Court in McConnell discussed its prior decisions

upholding state and federal restrictions on corporate

electoral advocacy. 540 U.S. at 204-205. The Court explained that, “[i]n light of [those] precedents, plaintiffs

d[id] not contest that the Government has a compelling

interest in regulating advertisements that expressly

advocate the election or defeat of a candidate for federal

office.” Id. at 205. The Court further explained that, “to

the extent that the issue ads broadcast during the 30-

and 60-day periods preceding federal primary and general elections are the functional equivalent of express

advocacy,” the same governmental interests apply

equally to corporate financing of electioneering communications. Id. at 206. Based on a voluminous record examining the use of corporate-funded ads that influenced

elections without using express advocacy, the Court concluded that BCRA’s restrictions on the financing of electioneering communications are facially valid. Id. at 207.

The Court also upheld BCRA’s reporting requirements. The Court explained that those requirements

serve three valid purposes: “providing the electorate

with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data nec-
7

2 The Chief Justice’s opinion is controlling because he “concurred in

the judgment[] on the narrowest grounds.” Marks v. United States,

430 U.S. 188, 193 (1977) (citation omitted).

essary to enforce more substantive electioneering restrictions.” 540 U.S. at 196. Although the Court noted

the possibility of future as-applied challenges by plaintiffs for whom disclosure represented an unusually severe burden, it concluded that none of the plaintiffs before it had shown such a burden. Id. at 198-199. Three

other Justices, while rejecting much of the Court’s reasoning, agreed that BCRA’s reporting requirements

(with one exception not relevant here) are constitutional

because they “substantially relate” to the informational

interest identified in the Court’s opinion. Id. at 321

(Kennedy, J., concurring in the judgment in part and

dissenting in part).

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

explained that BCRA’s “inclusion of electioneering communications in the [pre-existing disclaimer] regime

bears a sufficient relationship to the important governmental interest of ‘shed[ding] the light of publicity’ on

campaign financing.” Id. at 231 (quoting Buckley, 424

U.S. at 81).

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

Life, Inc., 127 S. Ct. 2652 (2007) (WRTL), this Court

sustained an as-applied challenge to Section 203. The

Chief Justice’s controlling opinion,2

 joined by Justice

Alito, acknowledged McConnell’s holding that Congress

may regulate corporate financing of communications

that constitute the functional equivalent of express advocacy. The opinion then held that “an ad is the functional

equivalent of express advocacy only if the ad is suscepti-
8

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

2667. Three other Justices concluded that BCRA Section 203 is unconstitutional on its face and would have

overruled the Court’s contrary holding in McConnell.

Id. at 2684-2687 (Scalia, J., concurring in part and concurring in the judgment). 

5. Shortly before the 2008 presidential primaries

began, appellant was preparing to release a film about

then-Senator Hillary Clinton, entitled Hillary: The

Movie. Appellant intended to distribute the film

through theaters, DVD sales, video-on-demand broadcasts, and other broadcast means while Senator Clinton

was a candidate for President. J.A. 19a, 196a. The

video-on-demand broadcast apparently would have involved paying approximately $1.2 million to a consortium of cable companies, which in return would make the

movie available to the companies’ subscribers. J.A. 19a,

256a. Appellant also produced three television advertisements for the movie. J.A. 196a-197a & nn.2-4. Those

advertisements mentioned Senator Clinton by name and

therefore would have fallen within BCRA’s definition of

“electioneering communication” if they had been broadcast during the 30-day period before a primary election

in which Senator Clinton was a candidate. See J.A.

198a-199a.

In December 2007, appellant filed suit in federal district court. The complaint alleged that BCRA Section

203 and the reporting and disclaimer requirements were

unconstitutional as applied to both the film and the proposed advertisements, and that Section 203 was facially

unconstitutional. See J.A. 200a-201a. The FEC conceded that Section 203 could not be applied to the advertisements because those advertisements were not the
9

functional equivalent of express advocacy as the lead

opinion in WRTL used that term.

The three-judge district court denied preliminary

injunctive relief on each of appellant’s claims. J.A. 195a211a. Appellant filed an interlocutory appeal in this

Court, which dismissed the appeal for want of jurisdiction. 128 S. Ct. 1732 (2008) (No. 07-953). The district

court then granted summary judgment to the Commission “[b]ased on the reasoning of [the court’s] prior opinion” denying preliminary injunctive relief. J.A. 261a262a.

a. The district court held that BCRA’s ban on the

use of corporate treasury funds to finance electioneering

communications is constitutional as applied to Hillary

because the film is the functional equivalent of express

advocacy. J.A. 203a-206a. The court found that the film

“is susceptible of no other interpretation than to inform

the electorate that Senator Clinton is unfit for office,

that the United States would be a dangerous place in a

President Hillary Clinton world, and that viewers should

vote against her.” J.A. 204a.

b. The district court also rejected appellant’s contention that BCRA’s reporting and disclaimer provisions

are unconstitutional as applied to appellant’s proposed

advertisements. J.A. 206a-209a. The court explained

that this Court in McConnell had upheld those provisions on their face, and that appellant had offered no

specific evidence of reprisals or other unconstitutional

burdens that could distinguish its challenge from the

one rejected in McConnell. Ibid. The district court also

observed that, in various contexts, this Court “has written approvingly of disclosure provisions triggered by

political speech even though the speech itself was consti-
10

tutionally protected under the First Amendment.” J.A.

208a.

c. The district court noted at the preliminary-injunction stage that appellant could not prevail on its

facial challenge unless McConnell were overruled. J.A.

202a. In its subsequent motion for summary judgment,

appellant stated that it no longer intended to pursue its

facial challenge. 07-CV-2240 Docket entry No. 52, at 1-2

(May 16, 2008) (“[Appellant] hereby advises the Court of

its intent to abandon the count and asks the Court to

consider the count moot and not rule on it.”). The parties subsequently stipulated to the dismissal of the facial

challenge. See id. Nos. 53 (May 22, 2008), 54 (May 23,

2008).

SUMMARY OF ARGUMENT

I. This Court has repeatedly sustained federal statutes implementing Congress’s compelling interest in

ensuring the integrity of federal elections. In McConnell, the decision controlling here, the Court held that

Congress may validly prohibit corporations and labor

unions from using the wealth amassed in their treasuries

to finance either express electoral advocacy or electioneering communications that are the functional equivalent of express advocacy. The Court therefore sustained

BCRA Section 203 against a facial challenge. Subsequently, in WRTL, the lead opinion declined to reconsider McConnell’s holding on that issue because it concluded that the advertisements at issue were not the

functional equivalent of express advocacy.

McConnell forecloses appellant’s claim of entitlement to fund Hillary with corporate dollars, because

Hillary is unmistakably an appeal to viewers to vote

against Senator Clinton for President. Every element
11

of the film, including the narration, the visual images

and audio track, and the selection of clips, advances the

clear message that Senator Clinton lacked both the integrity and the qualifications to be President of the

United States. The film focused not on legislative issues

but on Senator Clinton’s character, and it tied that message directly to her candidacy for President. Because

Hillary cannot “reasonably be interpreted as something

other than an appeal to vote * * * against” Senator

Clinton, it is the “functional equivalent of express advocacy,” and Section 203 validly regulates the use of corporate money to put it on the air. WRTL, 127 S. Ct. at

2670 (opinion of Roberts, C.J.).

Appellant’s attempts to distinguish McConnell are

unavailing. Appellant sought to have Hillary broadcast

by purchasing time through a video-on-demand consortium, but that method of paid distribution is no different

from buying an “infomercial” on a broadcast network, as

political candidates have done for many years. Like any

other television advertisement, Hillary uses the power

of the visual medium to promote a message; broadcasting that message on the “Elections ’08” video-on-demand channel rather than on Nickelodeon simply would

increase the likelihood that the audience would be interested in the subject matter. Nor does Hillary’s 90-minute length have any constitutional significance once the

film is found to be the functional equivalent of express

advocacy. McConnell’s holding is not limited to 30-second advertisements.

Appellant also contends, without adequate record

support, that it would have used many more individual

donations than corporate donations to finance Hillary.

But any use of corporate monies in this context would

permit appellant to be used as a conduit to circumvent
12

the valid restrictions on corporate spending. Congress’s

bright-line rule against the use of corporate treasury

funds is valid in this context.

Because McConnell is controlling, appellant asks this

Court to take the avulsive step of overruling its previous

holdings and ending all federal regulation of corporatefinanced electioneering, including express advocacy.

That contention is not properly presented and, in any

event, provides no new basis for overturning holdings

that this Court has repeatedly reaffirmed.

II. BCRA’s reporting and disclaimer requirements

may validly be applied to appellant’s three advertisements. Appellant was permitted to use corporate funds

to air the advertisements themselves, under the reasoning of the lead opinion in WRTL, because they are not

the functional equivalent of express advocacy. Contrary

to appellant’s contention, however, the fact that appellant’s advertisements are not unambiguously electionrelated does not mean that they are constitutionally exempt from all statutory provisions pertaining to the

electoral process. The federal requirements that electioneering communications be reported to the Commission, and that they identify their sponsors to their viewers, are based on interests distinct from BCRA Section

203 and not considered in WRTL: the public interest in

full information about participants in the electoral process, and the government’s interest in enforcing other,

independent provisions of the campaign finance laws.

Those interests are directly implicated by broadcast

communications that can reasonably be construed as

either electoral or non-electoral advocacy. Under the

standard that this Court has consistently applied to informational provisions of this sort—a standard more
13

permissive than strict scrutiny—these interests are fully

sufficient to sustain Congress’s chosen methods here.

Appellant identifies no burden that can outweigh

these valid interests. As-applied challenges to disclosure requirements have been recognized for decades,

based on genuine threats of harassment or reprisals, but

appellant makes no effort to meet that standard. Instead, appellant contends (along with several amici) that

disclosure always poses such a burden, or that disclosure always creates an unconstitutional chill on protected speech. This Court has repeatedly rejected such

facial attacks on disclosure requirements, recognizing

that disclosures of the sort at issue here serve rather

than undermine First Amendment interests by increasing the amount of information available to the public.

Finally, appellant’s challenge to the application of

the disclaimer requirement is without merit. Appellant

suffers no significant burden from identifying itself as

the sponsor of Hillary; the film itself and the website

promoting it make appellant’s role clear. Appellant has

offered no evidence to support the notion that the disclaimer will confuse viewers. And appellant does not

have any constitutional entitlement to save money by

not buying the four additional seconds of airtime necessary to air the disclaimer.

ARGUMENT

I. BCRA’S RESTRICTIONS ON CORPORATE FINANCING

OF ELECTIONEERING COMMUNICATIONS ARE CONSTITUTIONAL AS APPLIED TO APPELLANT’S FILM

The district court correctly concluded that Hillary,

taken as a whole, is the functional equivalent of express

advocacy. Appellant therefore had no constitutional

right to use its treasury funds, or treasury funds con-
14

3 Hillary is no longer subject to the restrictions on electioneering

communications, and Senator Clinton now holds a Cabinet position that

currently precludes her from seeking partisan political office. See 5

U.S.C. 7323(a)(3). Nonetheless, in our view the appeal is not moot, in

light of this Court’s holding in FEC v. Wisconsin Right to Life, Inc., 127

S. Ct. 2652 (2007), that a comparable challenge remained justiciable.

See Mot. to Dismiss or Affirm 11 n.1; WRTL, 127 S. Ct. at 2662-2663.

Appellant averred in the district court that it planned to produce, and

to promote, a film about then-Senator Barack Obama. J.A. 214a. That

film apparently has since been released. See Citizens United, Hype:

The Obama Effect (visited Feb. 17, 2009) <http://www.hypemovie.

com>. If aired during the period preceding a future election in which

President Obama is a candidate, that film would fall within BCRA’s

definition of “electioneering communication.” Appellant also expressed

the “intention to do materially similar advertising in materially similar

situations in the future.” J.A. 214a. Accordingly, as in WRTL, appellant’s challenge appears to be “capable of repetition, yet evading review,” and therefore not moot.

tributed by other corporations, to broadcast Hillary

during the 30-day period before a primary election in

which Senator Clinton was a candidate.3

A. This Court Has Upheld Congress’s Power To Restrict

Corporations From Using Their Treasury Funds To Finance Express Advocacy Or Its Functional Equivalent

Corporations and labor unions have long been required to finance express electoral advocacy through a

separate segregated fund rather than with general treasury monies. The constitutionality of that requirement

has been “firmly embedded in our law” since this Court

upheld FECA in Buckley, and it was common ground in

the McConnell litigation. McConnell v. FEC, 540 U.S.

93, 203 (2003); see id. at 205. Section 203 of BCRA extended that requirement to a defined set of “electioneering communication[s],” and the Court in McConnell

upheld Section 203 to the extent that the advertisements
15

it regulates are express advocacy or its “functional

equivalent.” 540 U.S. at 206. Appellant therefore has no

constitutional right to use corporate treasury dollars to

purchase airtime for a communication that unmistakably

advocates a particular vote.

1. Congress has a compelling interest in protecting

the electoral process from both actual corruption and

the appearance of corruption. This Court has repeatedly recognized both the validity and the importance of

that interest, see, e.g., WRTL, 127 S. Ct. at 2672 (opinion

of Roberts, C.J.); Buckley v. Valeo, 424 U.S. 1, 45 (1976)

(per curiam), and it has further recognized that the corruptive potential of campaign-related largesse is greatest in the context of candidate elections, see First Nat’l

Bank v. Bellotti, 435 U.S. 765, 788 n.26 (1978).

Congress has historically imposed particularly stringent limits on the electoral advocacy of corporations and

labor unions. Those restrictions reflect a “‘legislative

judgment that the special characteristics of the corporate structure require particularly careful regulation,’”

and this Court has consistently “respect[ed]” that judgment. FEC v. Beaumont, 539 U.S. 146, 155 (2003) (quoting FEC v. National Right to Work Comm., 459 U.S.

197, 209-210 (1982)). In particular, because of the numerous advantages that the corporate form confers, a

corporation’s ability to pay for electoral advocacy has

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

corporation’s political ideas.” McConnell, 540 U.S. at

205 (quoting Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 660 (1990)).

2. The Court held in McConnell that those “unusually important interests” justify regulating corporations’

use of treasury funds to influence elections directly,

through either express advocacy or electioneering com-
16

munications that are the functional equivalent of express

advocacy. 540 U.S. at 206 n.88; see id. at 205-207. The

constitutionally valid justification for requiring corporations to fund express advocacy through PACs “appl[ies]

equally” to corporate funding of “ads [that] are intended

to influence the voters’ decisions and have that effect,”

even if their electioneering message is less explicit than

express advocacy. Id. at 206. In WRTL, the lead opinion recognized that the Court in McConnell had “already ruled that BCRA survives strict scrutiny to the

extent it regulates express advocacy or its functional

equivalent.” 127 S. Ct. at 2664; see ibid. (explaining

that, if the broadcast is “express advocacy or its functional equivalent,” then “the FEC’s burden is not onerous; all it need do is point to McConnell and explain why

it applies here”).

B. Hillary Is The Functional Equivalent Of Express Advocacy Because It Focuses On Senator Clinton’s Candidacy And Character 

As the term itself makes clear, a communication may

be the “functional equivalent” of express advocacy even

if it does not explicitly urge a vote for or against a candidate. See McConnell, 540 U.S. at 193 (noting the

Court’s “longstanding recognition that the presence or

absence of magic words cannot meaningfully distinguish

electioneering speech from a true issue ad”). Rather, as

the lead opinion in WRTL explained, a broadcast should

be treated as electioneering if the only “reasonable interpretation” of its content is “as an appeal to vote for or

against a specific candidate.” 127 S. Ct. at 2667. Applying that standard, the three-judge district court correctly concluded that Hillary “is susceptible of no other

interpretation than to inform the electorate that Senator
17

Clinton is unfit for office * * * and that viewers should

vote against her.” J.A. 204a.

The lead opinion in WRTL identified three reasons

for its conclusion that the advertisements at issue there

did not constitute the functional equivalent of express

advocacy. First, the advertisements “focus[ed] on a legislative issue” and advocated specific congressional action; they did not simply “condemn[] [the target’s] record on a particular issue.” 127 S. Ct. at 2667 & n.6 (citation omitted). Second, they “d[id] not mention an election [or a] candidacy.” Id. at 2667. Third, the advertisements “d[id] not take a position on a candidate’s character, qualifications, or fitness for office.” Ibid. The Commission has codified those criteria in implementing regulations, 11 C.F.R. 114.15. Under that analysis, Hillary

is the functional equivalent of express advocacy.

1. Senator Clinton’s candidacy for President is the

central and unmistakable focus of the film. The narrator’s first voiceover begins, “Hillary Rodham Clinton.

Could she become the first female President in the history of the United States?” J.A. 35a. The final voiceover cautions that “before America decides on our next

President, voters should need no reminders of * * *

what’s at stake—the well being and prosperity of our

nation.” J.A. 144a-145a. And throughout the film, Senator Clinton’s candidacy is repeatedly brought up both by

the narrator, see J.A. 35a, 37a-38a, 38a-39a, 39a-40a,

88a-89a, 94a-95a, 104a-105a, 112a, 115a, 125a, 142a,

143a-144a, and by a succession of featured commentators, all critical of Senator Clinton, see J.A. 30a-31a, 42a,

63a, 64a, 89a-90a, 100a, 146a, 147a, 148a-149a. The message is forthrightly stated in a clip from Tony Blankley:

Hillary is intended to cover “things in the Clinton[s’]

political history worth recalling before you go in to po-
18

tentially vote for a Clinton, in this case a Hillary Clinton.” J.A. 42a (emphasis added).

The images and audio chosen by the film’s editors

evince a similar focus from beginning to end. As the

film’s title appears onscreen, the audio track plays Senator Clinton’s message about starting her presidential

campaign. J.A. 32a. And just before the film ends, the

audio track plays Senator Clinton saying that “on January 20, 2009 . . . some one will stand on the steps of the

[C]apitol . . . and raise his or her hand to take the oath

of office as the 44th [P]resident.” J.A. 149a.

2. Hillary’s unmistakable message is that Senator

Clinton’s character, beliefs, qualifications, and personal

history make her unsuited to the office of President of

the United States. That message is conveyed through

the film’s narration; through its choice of commentators

and its selection of extracts from their interviews; and

through its use of visual imagery. “And although the

resulting [production] do[es] not urge the viewer to vote

for or against a candidate in so many words, [it is] no

less clearly intended to influence” voters’ views of candidate Clinton. McConnell, 540 U.S. at 193. 

Rather than examining issues that might be the subject of legislative votes or Executive Branch action, Hillary focuses on Senator Clinton’s “character, qualifications, [and] fitness for office.” WRTL, 127 S. Ct. at 2667

(opinion of Roberts, C.J.). The film repeatedly impugns

Senator Clinton’s honesty and character. See J.A. 39a

(“She’s deceitful. She’ll make up any story; lie about

anything.”), 40a (narrator asking, “[I]s she ruthless,

cunning, dishonest—willing to do anything for power?”),

41a (“the Clintons * * * speak dishonestly”), 64a (narrator’s reference to Senator Clinton’s “Machiavellian

behavior” and “tendency to manipulate, deceive and de-
19

stroy for personal gain”), 68a (narrator’s reference to

her “hypocrisy and startling recklessness”), 86a (“congenital liar”), 111a (“[S]he’s not flipping and flopping.

[S]he’s lying.”), 112a (narrator stating, “The war on terror isn’t the only issue where Hillary is trying to have it

both ways.”), 130a (narrator stating, “Character is defined as what we do when we think no one is looking. By

that standard many critics say the Clintons are sorely

lacking.”). Those allegations are expressly tied to her

fitness for elective office, and specifically for the office

of President. E.g., J.A. 62a (“I don’t understand how

any woman in this country * * * could vote for a woman who does that to other people.”), 149a (“[T]he Hillary

Clinton that I know is not equipped, not qualified to be

our commander in chief.”).

The images that appear onscreen reinforce the attack on Senator Clinton’s character. For example, 37

seconds into the movie, after a montage of headlines

containing the phrase “Mrs. Clinton,” the visual zooms

in and lingers on the word “perjury” (omitting the remainder of the headline). Four seconds later, after a

montage of headlines referring to the “First Lady,” the

visual zooms in and lingers on the word “lies” (again

omitting the remainder of the headline). Am. Compl.

Exh. 2 (DVD version).

Appellant describes those manifestations of Hillary’s

critical message as merely the opinion of “various commentators,” offered only at the end of the movie. Br. 40;

see Br. 37. That characterization is demonstrably inaccurate. As explained above, criticism of Senator Clinton’s character and candidacy pervades the movie, beginning in the visual montages and statements in the

first minute of the film and continuing throughout. That

criticism comes in the filmmakers’ own voice (and voice-
20

4 Appellant suggests (Br. 37-38) that BCRA Section 203 is infirm

because similar criticisms of Senator Clinton might have been aired on

Meet the Press without running afoul of BCRA’s restrictions on corporate financing of electioneering communications. BCRA provides that

the electioneering communication requirements and restrictions do not

apply to communications that “appear[] in a news story, commentary,

or editorial distributed through the facilities of any broadcasting station.” 2 U.S.C. 434(f)(3)(B)(i); see 11 C.F.R. 100.29(c)(1); cf. 2 U.S.C.

431(9)(B)(i) (FECA’s longstanding media exemption). This Court has

repeatedly sustained such federal and state exemptions for media activity as “wholly consistent with First Amendment principles.” McConnell, 540 U.S. at 208; see Austin, 494 U.S. at 668.

Appellant does not contend that Hillary falls within BCRA’s media

exemption, and it appears that the film would not qualify because appellant paid for it to be broadcast in the manner of an infomercial. Although appellant ordinarily receives payment for DVDs and theater

showings of its movies unrelated to candidates, it sought to spend over

$1 million to have Hillary available during the election season. J.A.

11a-13a, 213a, 256a, 260a. See FEC Advisory Op. 2004-30, at 7 (Sept.

10, 2004) <http://saos.nictusa.com/aodocs/2004-30.pdf> (“[T]he very act

of paying a broadcaster to air a documentary on television, rather than

receiving compensation from a broadcaster, is one of the ‘considerations

of form’ that can help to distinguish an electioneering communication

from exempted media activity.”); cf. FEC v. Massachusetts Citizens for

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

over) and cannot be dismissed as the opinions of the interviewees (who are in any event uniformly critical of

Senator Clinton). And any potential ambiguity regarding the “focus” of the film as a whole, WRTL, 127 S. Ct.

at 2667 (opinion of Roberts, C.J.), is removed by the concluding section, which marshals all of the preceding evidence as support for the ultimate conclusion that Senator Clinton should not be elected president.4

3. Unlike a genuine issue advertisement, Hillary

does not “focus on a legislative issue, take a position on

the issue, exhort the public to adopt that position, [or]

urge the public to contact public officials with respect to
21

5 The district court’s focus on the film as a whole (while quoting illustrative excerpts, see J.A. 204a & n.12) was compelled by this Court’s

direction to examine the “substance of the [electioneering] communication” itself. WRTL, 127 S. Ct. at 2666 (opinion of Roberts, C.J.). Appellant complains (Br. 34-35) that the entirety of Hillary, not just the

electioneering portions, is subject to BCRA’s financing rules. But that

consequence occurs only because appellant has produced a movie that,

taken as a whole, is the functional equivalent of express advocacy. If

portions of the film would qualify as protected issue advocacy (or would

not fall within the definition of “electioneering communication”), and if

appellant wished to use treasury funds to broadcast only those portions,

nothing in BCRA would prevent it from doing so.

the matter.” WRTL, 127 S. Ct. at 2667 (opinion of Roberts, C.J.). In the few short portions of the film that

touch on legislative issues, the film consistently and explicitly ties those issues to further critiques of Senator

Clinton’s character and fitness for the presidency. See,

e.g., J.A. 105a-108a (discussing Senator Clinton’s positions on driver’s licenses for illegal immigrants and concluding that her performance failed to show “presidential stature or character”); J.A. 108a-112a (discussing

Senator Clinton’s positions on the war in Iraq and concluding that Senator Clinton was “not flipping and flopping. [S]he’s lying.”). The film does not express disagreement with any of Senator Clinton’s stands on the

relevant issues but rather urges that her handling of

those issues shows that she lacks both the forthrightness and the experience to be President. See J.A. 105a112a.

Even if one or more snippets of Hillary might in isolation be seen as issue advocacy, they are part of a

larger work that, as a whole, unambiguously argues that

Senator Clinton is unfit for the office for which she was

a candidate.5

 Appellant cannot immunize such a communication from regulation simply by inserting some addi-
22

6 Appellant asserts that “[t]he parties agree that Hillary is not express advocacy.” Br. 34 (citing Def.’s Mot. for Summ. J. 37). The Commission has not expressed any opinion on that question, in the district

court or elsewhere. Rather, the Commission has simply concluded that

appellant’s financing of Hillary may constitutionally be subject to

BCRA Section 203 because the film is, “at a minimum, the functional

equivalent of express advocacy.” J.A. 236a.

tional issue discussion. Indeed, much express advocacy

contains issue discussion.6

 In MCFL, for instance, the

Court held that a newsletter that contained issue advocacy nevertheless was “squarely” regulated by FECA

because it also went “beyond issue discussion to express

electoral advocacy.” 479 U.S. at 249-250.

4. Appellant observes (Br. 36-37) that Hillary does

not urge viewers to undertake “the specific act of voting

against Senator Clinton in a Democratic presidential

primary.” Appellant argues (Br. 37) that, “[i]n the absence of such an unambiguous call to action, it is difficult

to envision any language or images, or mix of the two,”

that would satisfy the constitutional standard set forth

in the lead opinion in WRTL. That contention is in substance an appeal for reinstatement of the “magic words”

requirement that the Court in McConnell held was not

constitutionally required. See 540 U.S. at 190-192. Acceptance of that argument would mean that BCRA Section 203 is unconstitutional in virtually all its applications, see id. at 127 & n.18, 193 & n.77 (explaining that

modern campaign advertising, including advertisements

run by candidates, rarely uses “magic words”), in contravention of McConnell’s holding that Section 203 is not

facially overbroad because most of its applications are

constitutional, see id. at 207; accord WRTL, 127 S. Ct. at

2683 (Scalia, J., concurring in part and concurring in the

judgment).
23

7 To the contrary, the amended complaint alleged that appellant

planned to televise the film both through video-on-demand and “by

other means,” and it did not suggest that video-on-demand placement

had any special constitutional significance. J.A. 19a. Indeed, the offer

for video-on-demand distribution did not come until after appellant filed

this litigation. J.A. 230a-231a.

Appellant also alleged that Hillary would be “within the electioneering communication definition,” including the requirement that the

communication be “receivable by more than 50,000 persons.” J.A. 19a20a; see 11 C.F.R. 100.29(b)(3)(ii). Appellant now contends (Br. 26 n.2),

however, that video-on-demand is categorically excluded from treatment as an electioneering communication because no single video-onC. There Is No Other Constitutional Basis For Exempting

Appellant’s Film From The Corporate Financing Restriction

In addition to arguing that Hillary is not the functional equivalent of express advocacy under the lead

opinion in WRTL, appellant advances a variety of other

arguments for finding BCRA’s corporate financing restriction unconstitutional as applied to the film. Those

arguments lack merit.

1. Video-on-demand has no special constitutional status

Appellant apparently wished to pay a consortium of

cable television providers to show Hillary through the

consortium’s video-on-demand service. See J.A. 253a260a. Appellant argues (Br. 24-29) that even if Hillary

can be regulated as the functional equivalent of express

advocacy when it is broadcast on television (including

cable television), the film is constitutionally exempt from

such regulation when it is distributed as a cable videoon-demand transmission. That newly raised contention

lacks merit.

a. Appellant’s argument was neither presented to

nor ruled on by the court below.7 Nor did appellant sug-
24

demand transmission can be received by 50,000 people. That argument

was neither pressed nor passed upon below, see J.A. 199a n.6 (considering a different definitional question), and it is not fairly included within

the questions presented in the jurisdictional statement. In any event,

the argument lacks merit. The applicable FEC regulation, which is entitled to deference, provides that the number of people who can receive

a cable transmission is determined by the number of cable subscribers

in the relevant area. See 11 C.F.R. 100.29(b)(7)(i)(G) and (ii). Because

the digital video-on-demand system that appellant wished to use had

34.5 million subscribers nationwide (J.A. 256a), the regulatory definition

appears to have been satisfied.

gest in its jurisdictional statement that video-on-demand

distribution might have constitutional significance. This

Court generally “do[es] not decide in the first instance

issues not decided below,” NCAA v. Smith, 525 U.S. 459,

470 (1999), and no exception should be made here. In

particular, in opposing the Commission’s summary-judgment motion, appellant never submitted any facts or

argument to support its current contentions about the

nature of video-on-demand.

b. In any event, appellant identifies no sound constitutional basis for exempting video-on-demand broadcasts from BCRA’s restrictions on corporate financing

of electioneering communications. As with a 30-second

commercial or a 30-minute infomercial, the producer of

a video-on-demand film pays the broadcaster to air the

film without modification. See, e.g., J.A. 253a (touting

the “advanced advertising opportunities” of video-ondemand, which allows candidates and others to “craft[]

and control[] [their] own long-form campaign message

[and] reach voters with no media dilution or bias”).

Appellant speculates (Br. 25, 26) that making Hillary

available through video-on-demand would not change

any voter’s mind because only viewers who “want to

learn what [appellant] has to say about Hillary Clinton”
25

would select Hillary from a video-on-demand menu. An

interested audience, however, is a virtue to an advertiser. Indeed, the “Elections ’08” video-on-demand

channel on which Hillary purportedly would have run is

marketed—to campaigns as well as issue-advocacy

groups—as an effective way to reach voters, including

swing voters. See J.A. 258a, 259a. A voter’s decision to

select “Hillary: The Movie” from an on-screen menu

does not logically imply that the voter has decided how

to cast his ballot.

The apparent premise of appellant’s argument—i.e.,

that typical voters with access to video-on-demand may

select programs that they believe will reinforce their

pre-existing beliefs, but will not choose programs that

may inform them with respect to electoral choices as to

which they are currently undecided—reflects a jaundiced view of American democracy. But even if everyone who would have watched Hillary through video-ondemand was already opposed to Senator Clinton’s candidacy, it would not follow that the film lacked electoral

influence. A significant amount of electoral advertising

is intended not to sway undecided voters, but rather to

motivate the advertiser’s political “base.” To the extent

that Hillary would have induced viewers already opposed to Senator Clinton to become more active in their

opposition to her candidacy, the film’s electoral effect

would have been comparable to that of any other communication directed at decided voters. 

Longstanding federal restrictions on corporate and

union electioneering, see 2 U.S.C. 441b(a), apply to all

forms of express advocacy, including appellant’s “free

DVD by mail” hypothetical (Br. 27-28). It is true that

the restrictions imposed by BCRA Section 203, which

extend beyond express advocacy to its functional equiva-
26

8 Although the FEC has broadly exempted electioneering activity on

the Internet from regulation, see 11 C.F.R. 100.26, 100.155 (exempting

from most regulation Internet electioneering other than the purchase

of paid advertising on another’s website), nothing in McConnell or any

other decision suggests that this exemption is constitutionally compelled.

lent, are limited to broadcast media and do not apply to

newspaper advertising or the Internet. See 2 U.S.C.

434(f)(3)(A)(i). Based on an extensive factual record,

this Court in McConnell upheld that legislative judgment, reiterating its statement in Buckley that “reform

may take one step at a time, addressing itself to that

phase of the problem which seems most acute to the legislative mind.” 540 U.S. at 207-208 (quoting Buckley,

424 U.S. at 105).8

 Appellant identifies no sound basis for

rejecting that conclusion now, and there are valid reasons to subject video-on-demand broadcasts to the same

financing restrictions as other broadcast advertisements. Video-on-demand advertising has many of the

strengths of the television medium, and it can target

particular audiences. See J.A. 257a (regional targeting

available); Brian Steinberg, Custom National TV Spots

Are Close: Verklin, Advertising Age, Sept. 22, 2008, at

6, available in 2008 WLNR 18294102.

2. Hillary’s 90-minute length gives it no special constitutional status

Appellant also contends (Br. 13, 28) that the holdings

of McConnell and WRTL do not apply to “feature-length

films,” even when those films are the functional equivalent of express advocacy. That argument lacks merit.

As explained above, Hillary is a 90-minute advocacy

piece whose unmistakable import is that Senator Clinton

should not be elected President. Once that proposition
27

9 Appellant also contends (Br. 22-23) that the 30-second spot is the

most effective form of advocacy and, therefore, the only form Congress

was justified in regulating. But many politicians have used lengthy

video segments (some with all the trappings of a studio release) to great

political effect. Virtually every national political convention features a

hagiographic film about the candidate (such as the Hollywood-produced

The Man from Hope), and presidential candidates have bought infomercial-length blocks of advertising time for decades. See, e.g., Frank

Greve, TV Ad Uses Flag, Prayers to Portray Reagan as Leader, Miami

Herald, Sept. 12, 1984, at 16A, available in 1984 WLNR 203856; William Safire, Safire’s Political Dictionary 113 (2008) (“Checkers

speech”).

is established, there is no principled constitutional basis

for distinguishing Hillary from the attack advertisements discussed in McConnell simply because the movie

spends more time on its electioneering than the advertisements do.

In arguing that the rationale of McConnell does not

extend to feature-length movies, appellant notes (e.g.,

Br. 24, 28) the apparent absence of evidence that such

films had been the subject of widespread abuse before

BCRA was enacted. But the legislative record on which

BCRA was based amply established the prevalence, during the periods directly before federal elections, of

corporate-funded broadcast attacks that carefully avoided using the explicit words of electoral advocacy but

nonetheless urged the election or defeat of clearly identified candidates. McConnell, 540 U.S. at 206. And the

McConnell record contained evidence that advocacy

groups used corporate money to broadcast lengthy “infomercials” that were much longer than the traditional

30-second advertisement. See McConnell v. FEC, 251 F.

Supp. 2d 176, 305-306, 316-317 (D.D.C. 2003) (opinion of

Henderson, J.); id. at 547-548 (opinion of Kollar-Kotelly,

J.); id. at 906 (opinion of Leon, J.).9

 As appellant notes
28

(Br. 26), video-on-demand technology is relatively new,

and its advent has made buying a feature-length block

of advertising time much easier. But nothing about the

duration of Hillary separates it from the other pieces of

broadcast advertising documented in the McConnell

record.

3. The “overtly conservative” nature of Hillary’s advocacy does not entitle appellant to use corporate treasury funds to broadcast the film

Appellant contends that despite its electioneering

message, Hillary poses no risk of actual or apparent

quid-pro-quo corruption because “[t]he self-selecting audience of an overtly conservative documentary like Hillary likely would not have included a significant number

of Democratic primary voters.” Br. 41. That contention

fails for multiple reasons.

First, the lead opinion in WRTL made clear that the

constitutional inquiry in this context does not turn on

the sort of speculation in which appellant engages. Following Buckley, that opinion noted “the flaws of a test

based on the actual effect speech will have on an election

or on a particular segment of the target audience. Such

a test ‘puts the speaker . . . wholly at the mercy of the

varied understanding of his hearers.’” 127 S. Ct. at 2666

(quoting Buckley, 424 U.S. at 43). The application and

constitutionality of the longstanding restrictions on corporate express advocacy do not depend on a determination that specific advertisements will actually achieve

their intended objective. (There is, in other words, no

constitutional exemption for ineffective corporate electioneering.) If a particular electioneering communication is the functional equivalent of express advocacy—

i.e., if it “can only be reasonably be viewed as advocating
29

or opposing a candidate in a federal election,” id. at

2669—the likelihood that the communication will ultimately affect voting behavior is irrelevant to the constitutional analysis.

Second, there is in any event no sound basis for appellant’s contention that Hillary’s “overtly conservative”

orientation would deprive the film of any potential effect

on voters in a Democratic presidential primary. Some

members of the Democratic Party hold conservative

views. In addition, many Democratic presidential primaries are open to unaffiliated voters and members of

other parties. See, e.g., Calvin Woodward, Open Primaries in Texas and Ohio Will Test Clinton, Hous. Chron.,

Feb. 24, 2008, at A4, available in 2008 WLNR 3698542.

And while the film featured criticisms of Senator Clinton

by well-known conservative commentators, its predominant thrust was that Senator Clinton was unfit to be

President because of a flawed character, not because of

an unduly liberal political ideology. Such attacks might

influence the voting behavior even of Democratic party

members who did not share the interviewees’ conservative political views.

4. Appellant’s purported use of funds acquired from individuals to finance the film at issue here does not

entitle it to a constitutional exemption from BCRA

Section 203’s restrictions

Appellant contends (Br. 29-34) that BCRA Section

203 is unconstitutional as applied to Hillary because the

film was financed “overwhelmingly” by donations from

individuals. That argument is not properly before the

Court and in any event lacks merit.

Appellant has not previously contended, either in the

district court or in its jurisdictional statement, that it is
30

entitled to distinct constitutional treatment because it

relies primarily on individual donations. With respect to

its sources of funding, appellant’s complaint simply alleged that the organization “is not a ‘qualified nonprofit

corporation’” within the meaning of 11 C.F.R. 114.10

(which implements the MCFL exemption, see p. 3, supra) because appellant “receives corporate donations

and engages in business activities.” J.A. 11a.

Because appellant failed to raise its current line of

argument in the district court, the evidentiary record is

inadequate to determine whether Hillary was in fact

financed “overwhelmingly” by individual donations.

During discovery, appellant disclosed only those donations of $1000 or more that were made or pledged for the

purpose of furthering the production or public distribution of appellant’s films regarding then-Senators Clinton

and Obama. See J.A. 225a, 244a; 11 C.F.R. 104.20(c)(9).

The total amount of disclosable donations was approximately $200,000. J.A. 251a-252a. The record does not

disclose the movie’s production cost, but the cost of distributing the film, including through video-on-demand,

would have greatly exceeded $200,000. See J.A. 256a

(nationwide video-on-demand availability for four weeks

would cost $1.2 million). It is therefore unclear from the

record how appellant obtained (or intended to obtain) a

substantial percentage of the funds needed to produce

and distribute the film.

In any event, even if appellant’s current representations about the film’s funding sources were treated as

established, they would not entitle it to a constitutional

exemption from BCRA Section 203’s restrictions. Appellant concedes that it does not qualify for the narrow asapplied exemption announced in MCFL because it both

engages in business activities and receives corporate
31

10 The corporate donors identified as contributing to Hillary were

business corporations, not member-supported ideological entities like

Massachusetts Citizens for Life. See J.A. 244a, 252a.

donations.10 See Br. 5, 30; J.A. 11a. Thus, as in WRTL,

this case does not present the question (raised by amicus

National Rifle Association) whether a corporation funded only by individuals can make out an as-applied challenge on that basis. See WRTL, 127 S. Ct. at 2673 n.10

(opinion of Roberts, C.J.) (declining to reach that question “because WRTL’s funds for its ads were not derived

solely from individual contributions”).

In McConnell, the Court reaffirmed that its holding

in MCFL “related to a carefully defined category of entities,” and that each of the three features of the nonprofit

corporation in that case was “central” to the Court’s

holding. McConnell, 540 U.S. at 210. In particular, by

limiting the MCFL exception to entities that do not accept contributions from business corporations, the Court

ensured that MCFL organizations cannot “serv[e] as

conduits for the type of direct spending that creates a

threat to the political marketplace.” MCFL, 479 U.S. at

264; see Beaumont, 539 U.S. at 160 (noting that “[n]onprofit advocacy corporations are * * * no less susceptible than traditional business companies to misuse as

conduits for circumventing * * * contribution limits”).

Appellant’s proposed constitutional exemption is in

two respects a significant expansion of the MCFL exception beyond the boundaries previously recognized and

reaffirmed by this Court. First, appellant would abandon an existing bright-line rule, see MCFL, 479 U.S. at

264 (noting that Massachusetts Citizens for Life had a

“policy not to accept contributions from” business corporations or labor unions); McConnell, 540 U.S. at 210, for

a more amorphous inquiry into whether Hillary was
32

funded “predominantly” or “overwhelmingly” by individuals, Br. 31, 32. Cf. WRTL, 127 S. Ct. at 2666, 2669 n.7

(opinion of Roberts, C.J.) (agreeing with “the imperative

for clarity in this area”); id. at 2680-2681 (Scalia, J., concurring in part and concurring in the judgment) (same).

Second, whereas the MCFL exception turns on an

assessment of an organization’s overall operations, appellant does not assert that the bulk of its total resources were acquired from individual donations, but

only that Hillary itself was financed “predominantly” or

“overwhelmingly” in that manner. It would appear that,

under appellant’s theory, even an advocacy corporation

that obtains most of its funds from business corporations

would be constitutionally exempt from BCRA’s restrictions with respect to any particular electioneering communication that is financed (or mostly financed) through

individual donations.

Finally, there is no logical reason to allow appellant’s

business-corporation donors, which could not spend

their treasury funds to finance electioneering communications directly, to achieve the same result by using appellant as a conduit. The fact that funds provided by

appellant’s business-corporation contributors are commingled with other dollars does not eliminate the government’s interest in preventing the use of those corporations’ treasury funds for electoral advocacy. Appellant

contends (Br. 32-33) that all of its advocacy accurately

reflects the views of its individual donors. Even if that

is so, it does not follow that appellant’s electioneering

necessarily reflects the views of the shareholders and

customers of its business-corporation donors. See McConnell, 540 U.S. at 205 (citing Austin, 494 U.S. at 660).
33

11 The question had been a recurring one, but the Court had not previously needed to decide it. See MCFL, 479 U.S. at 257-259; Bellotti,

435 U.S. at 788 n.26; see also National Right to Work Comm., 459 U.S.

at 208-209; United States v. International Union UAW, 352 U.S. 567,

589-592 (1957) (union express advocacy).

12 Acceptance of appellant’s argument would effectively invalidate not

only BCRA Section 203, but also 2 U.S.C. 441b’s prohibition on the use

of corporate treasury funds for express advocacy, as well as any statelaw analogues. Notably, appellant does not ask this Court to reconsider

McConnell’s holding that, if corporate spending on express advocacy in

candidate elections may be regulated, so may corporate spending that

is the functional equivalent of express advocacy. Cf. WRTL, 127 S. Ct.

at 2686 (Scalia, J., concurring in part and concurring in the judgment)

(advocating, as “modest medicine,” the overruling of only McConnell’s

comparatively recent holding as to nonexpress advocacy). Rather, appellant seeks to invalidate both forms of regulation.

D. Appellant Presents No Basis For Overruling This

Court’s Decision In Austin

In Austin, this Court held that corporations may

constitutionally be barred from using their treasury

funds to finance express advocacy for or against a candidate for elective office.11 494 U.S. at 660. Appellant contends (Br. 30-31) that this Court should overrule Austin

and hold that all corporations are entitled to use their

treasury funds to engage in all forms of electioneering,

including express advocacy in candidate elections.12

Appellant’s argument is not properly before the

Court. Although appellant previously sought to have

BCRA Section 203 declared facially unconstitutional, see

J.A. 24a, it later abandoned that claim, and the district

court ultimately ordered dismissal of the relevant count

pursuant to the parties’ stipulation. See p. 10, supra. In

addition, appellant’s jurisdictional statement presented

only “an as-applied challenge to * * * BCRA § 203.”

J.S. 5. In setting out the substantial federal questions
34

that it believed warranted plenary review, appellant

identified a dispute over the application of WRTL and a

question about whether Section 203 can be applied to a

“feature-length documentary movie.” J.S. i, 24-28. No

issue as to the continuing vitality of Austin was either

“set out” in the questions presented or “fairly included

therein.” Sup. Ct. R. 14.1(a) (rule for certiorari petitions), 18.3 (applying Rule 14 to jurisdictional statements).

In any event, this case presents none of the considerations that might support a departure from this Court’s

customary fidelity to precedent. Austin has been relied

on by the other branches of the federal government, especially in crafting BCRA; by this Court, which applied

Austin in upholding that statute, see McConnell, 540

U.S. at 203, 205 (explaining that none of the plaintiffs in

that case, which included appellant, challenged the correctness of Austin’s holding); and by legislatures and

courts considering state and local campaign-finance

measures. In short, “Congress’ power to prohibit corporations and unions from using funds in their treasuries

to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been

firmly embedded in our law.” McConnell, 540 U.S. at

203.

Appellant makes virtually no effort to explain why

Austin should be overruled under “the doctrine of stare

decisis or the Court’s cases elaborating on the circumstances in which it is appropriate to reconsider a prior

constitutional decision.” Randall v. Sorrell, 548 U.S.

230, 263 (2006) (Alito, J., concurring in part and concurring in the judgment). Appellant devotes less than two

pages of its 58-page brief (Br. 30-31) to this issue, and it

identifies no relevant new evidence or other intervening
35

development that was unavailable to the Court when

Austin was decided. That “incomplete presentation” is

“reason enough to refuse” appellant’s extraordinary request to overrule Austin, and as a consequence the relevant holding of McConnell as well. Randall, 548 U.S. at

263 (Alito, J., concurring in part and concurring in the

judgment).

In arguing that Austin was “wrongly decided” (Br.

30), appellant relies in part on this Court’s subsequent

decision in Davis v. FEC, 128 S. Ct. 2759 (2008). That

ruling, however, invalidated statutory conditions placed

on a wealthy individual’s expenditure of personal funds

in support of his own candidacy. See id. at 2766-2767,

2770-2774. The case therefore did not implicate this

Court’s consistent “respect for the ‘legislative judgment

that the special characteristics of the corporate structure require particularly careful regulation.’” McConnell, 540 U.S. at 205 (quoting National Right to Work

Comm., 459 U.S. at 209-210). Indeed, neither the Court

nor the dissenters in Davis suggested that there was

any inconsistency between that decision and the prior

ruling in Austin.

Appellant also relies (Br. 30) on Bellotti, which was

decided 12 years before Austin. But the Court in Bellotti, while invalidating state-law restrictions on the use of

corporate funds to influence ballot-question referenda,

explained that its “consideration of a corporation’s right

to speak on issues of general public interest implies no

comparable right in the quite different context of participation in a political campaign for election to public office.” 435 U.S. at 788 n.26. The Court further observed

that “Congress might well be able to demonstrate the

existence of a danger or apparent corruption in independent expenditures by corporations to influence can-
36

13 If this Court holds that Hillary is not the functional equivalent of

express advocacy, or that appellant’s financing of the film is otherwise

constitutionally exempt from the restrictions imposed by BCRA Section

203, application of the reporting and disclaimer requirements to the film

would nevertheless be constitutional for the reasons set forth below.

didate elections.” Ibid. Far from providing a basis for

overruling Austin, the decision in Bellotti anticipated

the rationale on which the Austin Court later relied.

II. BCRA’S REPORTING AND DISCLAIMER REQUIREMENTS ARE CONSTITUTIONAL AS APPLIED TO APPELLANT’S FILM AND ADVERTISEMENTS

Appellant contends (Br. 42-57) that BCRA’s reporting and disclaimer requirements are unconstitutional as

applied to Hillary and the advertisements promoting it.

Because Hillary itself is the functional equivalent of

express advocacy, see pp. 16-22, supra, the constitutionality of the reporting and disclaimer provisions as applied to the film is clearly established by this Court’s

decision in McConnell. See 540 U.S. at 196.13 Although

the advertisements are not the functional equivalent of

express advocacy under the lead opinion in WRTL, they

would fall within BCRA’s definition of “electioneering

communication” if they were broadcast during the periods immediately preceding federal elections in which

Senator Clinton was a candidate, and their airing during

those periods would implicate important governmental

interests related to the federal electoral process. Application of BCRA’s reporting and disclaimer requirements

to those and similar advertisements is therefore constitutional.
37

A. Disclosure Requirements Are Subject To Intermediate

Scrutiny 

Because “disclosure requirements * * * do not prevent anyone from speaking,” McConnell, 540 U.S. at 201

(citation and brackets omitted), they are not subject to

strict scrutiny. Rather, First Amendment challenges to

disclosure requirements are analyzed under a more permissive standard, which this Court has called “exacting

scrutiny,” and which requires that the disclosure requirement bear a “substantial relation” to a “sufficiently

important” governmental interest. Buckley, 424 U.S. at

64, 66, 75 (citation omitted); accord Davis, 128 S. Ct. at

2775 (reiterating that “there must be ‘a “relevant correlation” or “substantial relation” between the governmental interest and the information required to be disclosed,’ and the governmental interest ‘must survive exacting scrutiny’”) (quoting Buckley, 424 U.S. at 64);

McConnell, 540 U.S. at 196, 231. That standard corresponds to intermediate scrutiny, not strict scrutiny.

See, e.g., United States v. Virginia, 518 U.S. 515, 532-

533 (1996).

This Court in Buckley expressly distinguished the

strict scrutiny applicable to statutes (such as expenditure limits) that impose “limitations on core First

Amendment rights of political expression,” 424 U.S. at

44-45, from the lesser scrutiny applicable to encroachments on the “privacy of association” by disclosure requirements, id. at 64. Neither Buckley, nor McConnell,

nor any of the other cases that appellant cites applied

strict scrutiny to an election-disclosure requirement.

E.g., Buckley v. American Constitutional Law Found.,

Inc., 525 U.S. 182, 202 (1999) (ACLF) (applying “exacting scrutiny” and requiring that disclosure requirements
38

14 Appellant’s reliance (Br. 43) on Hurley v. Irish-American Gay,

Lesbian & Bisexual Group, 515 U.S. 557 (1995), and Riley v. National

Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988), is

even more misplaced. In Hurley, this Court did not apply strict scrutiny. See 515 U.S. at 577-578 (holding that the state failed to identify

any “legitimate interest” in the challenged application of the statute).

And in Riley, the portion of the disclaimer statute at issue that was

comparable to BCRA’s electioneering communication disclaimer requirement—i.e., the portion requiring the speaker to identify himself—

was not challenged. 487 U.S. at 786; see id. at 800 (noting difference between challenged disclaimer and requiring “detailed financial disclosure

forms”); see also McConnell, 540 U.S. at 140 (distinguishing Riley on

other grounds).

be “substantially related to important governmental interests”).14

Nor does McIntyre v. Ohio Elections Comm’n, 514

U.S. 334 (1995), support the application of strict scrutiny

here. The Court in McIntyre explicitly distinguished

the state law at issue, which prohibited the distribution

of anonymous handbills addressing a variety of political

issues, see id. at 338 n.3, from the disclosure requirements contained in federal campaign-finance laws. See

id. at 355. BCRA’s reporting requirements apply only

to broadcast, cable, or satellite communications, materials far removed from the “personally crafted statement

of a political viewpoint” involved in McIntyre. Ibid.

And the required disclosure pertains in part to contributors, who often will have played no part in crafting the

corporation’s electioneering message beyond contributing financially.
39

B. As Applied To Advertisements That Fall Within BCRA’s

Definition Of “Electioneering Communication,” But

That Are Not The Functional Equivalent Of Express

Advocacy, BCRA’s Reporting And Disclaimer Requirements Are Substantially Related To Important Governmental Interests

The challenged disclosure provisions require the

sponsor of an electioneering communication to identify

itself to the Commission, disclose the amount spent on

the advertisement and any large contributions earmarked to underwrite it, and identify itself in the advertisement itself. Important governmental interests support each of these requirements. First, disclosure

serves the public interest in transparency in political

activity. Second, disclosure permits the Commission to

enforce the substantive requirements of the law. Buckley, 424 U.S. at 83; accord McConnell, 540 U.S. at 196.

As this Court has held, these interests readily satisfy

exacting scrutiny.

Nothing in WRTL casts doubt upon those holdings.

In that case the government asserted a different interest, and the Court applied a more stringent standard of

scrutiny. The Court concluded that the government’s

interest in protecting the political process from corruption was insufficiently compelling to justify a ban on

corporate-treasury financing of advertisements that,

like those at issue in this case, fell within the statutory

definition of “electioneering communication” but were

not the functional equivalent of express advocacy. The

Court did not hold, however, and its decision does not

logically suggest, that such advertisements are constitutionally exempt from all regulation. To the contrary,

many categories of constitutionally protected political

speech and related spending are properly subject to dis-
40

closure requirements. The government’s informational

and enforcement interests are distinct and substantial,

and they amply justify the application of BCRA’s reporting and disclaimer requirements under the exactingscrutiny standard.

1. The government has an important interest in providing information to the public

a. In upholding the disclosure requirements at issue

here against a facial challenge, this Court relied first on

the important interest in securing the public’s access to

full information about the selection of their elected leaders. McConnell, 540 U.S. at 196, 200-201. The Court

had long recognized the validity of that interest in upholding requirements to disclose contributions, express

advocacy, and political committees’ disbursements.

Buckley, 424 U.S. at 66-68, 81-82. In McConnell, the

Court confirmed that the same important interest “amply supports application of [BCRA’s] disclosure requirements to the entire range of ‘electioneering communications.’” McConnell, 540 U.S. at 196.

Promoting that interest through disclosure serves

important First Amendment values. “[I]ndividual citizens seeking to make informed choices in the political

marketplace” have “First Amendment interests” in

learning how electoral advocacy is funded. McConnell,

540 U.S. at 197 (citation omitted); accord Buckley, 424

U.S. at 82 (disclosure “further[s] First Amendment values by opening the basic processes of our federal election system to public view”). And the practical efficacy

of disclosure requirements in furthering that interest

has been enhanced by technological advances that make

it possible for groups to disclose expenditures quickly,

with minimum effort, and for the public to review and
41

even search the data with ease. Cf. Nixon v. Shrink

Mo. Gov’t PAC, 528 U.S. 377, 408 (2000) (Kennedy, J.,

dissenting) (online disclosure now provides an “immediate way to assess the integrity and the performance of

our leaders”).

b. Appellant, joined by numerous amici, contends

that, if a particular electioneering communication is not

the functional equivalent of express advocacy under

WRTL, then the communication must be treated as

wholly unrelated to any federal election, and BCRA’s

reporting and disclaimer provisions for that reason cannot constitutionally be applied to that communication.

See Br. 46-47, 51-52, 57; accord, e.g., CCP Br. 21-22;

FFE Br. 28-29. The lead opinion in WRTL, however,

provides no support for that proposition. To the contrary, the guiding premise of that opinion is that some

advertisements falling within the statutory definition of

“electioneering communication” can reasonably be construed either as electoral appeals or as issue advocacy.

See 127 S. Ct. at 2669. The lead opinion concluded that

BCRA Section 203’s financing restrictions cannot constitutionally be applied to such advertisements, on the

ground that “the tie goes to the speaker, not the censor.” Ibid. The necessary consequence of that holding

is that particular electioneering communications may be

constitutionally exempt from BCRA’s corporate-financing prohibitions even though some reasonable observers

will construe the advertisements as electoral advocacy

and the advertisements will foreseeably affect electoral

outcomes.

For that reason, the concession on which appellant

relies—i.e., that the advertisements at issue here were

not the functional equivalent of express advocacy under

WRTL—does not logically imply that the advertise-
42

ments were unrelated to any federal election. Appellant’s “Questions” advertisement, for example, refers to

Senator Clinton as a “European socialist.” J.A. 197a n.4.

Although the advertisement might be interpreted as

simply promoting the film without unambiguously urging any particular electoral outcome, it could also reasonably be construed as electoral advocacy, and its airing within 30 days before a presidential primary would

have an obvious potential to affect voting behavior.

Under WRTL, those potential consequences are an

insufficient basis for barring the use of corporate treasury funds for advertisements that do not unambiguously appeal for a particular vote. Voters who perceive

a connection between an advertisement and an upcoming

election, however, retain a significant interest in identifying the advertisement’s sponsor and underwriters, in

order to assess the advertisement’s credibility and the

sponsor’s motives. BCRA’s reporting and disclaimer

requirements help to vindicate that interest, and to ensure in particular that communications having potential

electoral significance are not misattributed to the identified candidate or her opponent. Cf. Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 565 (2005); id. at 568

(Thomas, J., concurring).

c. There is nothing incongruous in recognizing that

particular communications may properly be subject to

disclosure requirements even though they are constitutionally exempt from restrictions such as spending or

financing limits. In McConnell, for example, the Court

held that BCRA’s disclosure requirements could be applied to the “entire range of ‘electioneering communications,’” 540 U.S. at 196, even though it upheld the corporate-financing prohibition only as to express advocacy

and communications that are the functional equivalent
43

15 The sponsor of the electioneering communications in WRTL likewise affirmatively disavowed any challenge to BCRA’s disclosure requirements and invoked the public’s access to information about the

sources of its funding to support its challenge to the funding limitation.

Appellee Br. at 49, WRTL, supra (No. 06-969).

of such advocacy, id. at 206. And three additional Justices voted to uphold BCRA’s disclosure requirements

(with one exception that is not implicated in this case)

even as they voted to invalidate the corporate-funding

restriction on electioneering communications. See id. at

321 (Kennedy, J., concurring in the judgment in part

and dissenting in part). Similarly, in Buckley the Court

struck down FECA’s dollar limits on independent expenditures but nevertheless sustained the statute’s disclosure requirements applicable to such expenditures.

See 424 U.S. at 75-82. While acknowledging that the

disclosure requirements “would no longer serve any governmental purpose” if their sole function were to effectuate the invalid spending limits, id. at 76, the Court explained that the disclosure requirements served an additional “informational interest” by “increas[ing] the fund

of information concerning those who support the candidates,” id. at 81.15

Indeed, this Court has frequently explained, in invalidating particular spending or funding limits, that the

relevant spending would still be subject to disclosure

requirements. See, e.g., MCFL, 479 U.S. at 262 (explaining that “MCFL will be required to identify all contributors who annually provide in the aggregate $200 in

funds intended to influence elections, will have to specify

all recipients of independent spending amounting to

more than $200, and will be bound to identify all persons

making contributions over $200 who request that the

money be used for independent expenditures”); ACLF,
44

525 U.S. at 202-203, 205 (upholding requirement to disclose donations made to organizations to pay ballot-initiative petition circulators); see also Shrink Mo. Gov’t,

528 U.S. at 428-429 (Thomas, J., dissenting). That is so

even in the context of ballot-issue campaigns, in which

unrestricted campaign spending creates little risk of

quid pro quo corruption because the elections do not

involve candidates who may become beholden to their

financial supporters. See Bellotti, 435 U.S. at 792 n.32

(“Identification of the source of advertising may be required as a means of disclosure, so that the people will

be able to evaluate the arguments to which they are being subjected.”); Citizens Against Rent Control v. City

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

that “contributors must make their identities known

under * * * [an unchallenged provision of] the ordinance”).

Similarly, although lobbying is protected by the First

Amendment, this Court and several courts of appeals

have upheld mandatory disclosure of lobbying expenditures on the basis of the government’s interest in informing the public of who is attempting to sway the resolution of public issues and how they are attempting to

do so. See United States v. Harriss, 347 U.S. 612, 625-

626 (1954) (holding that “those who for hire attempt to

influence legislation” may be required to disclose the

sources and amounts of the funds they receive to undertake lobbying activities); accord, e.g., Florida League of

Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 460 (11th

Cir.) (upholding state lobbyist disclosure statutes in

light of state interest in helping citizens “apprais[e] the

integrity and performance of officeholders and candidates, in view of the pressures they face”), cert. denied,

519 U.S. 1010 (1996). The Court has thereby recognized
45

16 Appellant’s reliance (Br. 52) on North Carolina Right to Life, Inc.

v. Leake, 525 F.3d 274 (4th Cir. 2008), is misplaced. In holding that legislatures’ power to “establish campaign finance laws” is limited to regulating express advocacy and its functional equivalent, id. at 282-283, the

Fourth Circuit was referring to regulation of expenditures, and did not

consider reporting requirements standing alone, see id. at 280.

that legislatures may require the disclosure of information concerning the source of funds used to influence

public policy, even when that influence occurs outside

the election context.

Against this line of cases, appellant invokes the

Court’s determination in Buckley that a prior FECA

disclosure provision was limited to spending that is “unambiguously related to the campaign of a particular federal candidate.” Br. 47 (quoting Buckley, 424 U.S. at

80). Appellant’s reliance on that aspect of Buckley is

misplaced. Buckley announced the express-advocacy

test (for which the reference to “unambiguously campaign related” spending, 424 U.S. at 81, was shorthand)

as a construction of the statutory phrase “for the purpose of . . . influencing [federal elections].” Id. at 78,

79; see id. at 78-81. This Court has since held that

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

of statutory interpretation rather than a constitutional

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

127 S. Ct. at 2670 n.7 (opinion of Roberts, C.J.).16 With

respect to disclosure requirements in particular, this

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

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

above make clear that compelled disclosure of financing

information is permissible in a number of situations in
46

which the disbursements in question have nothing to do

with a candidate election.

2. The government has an important interest in facilitating enforcement of funding regulations

In upholding BCRA’s disclosure requirements, the

Court in McConnell also relied on the government’s interest in facilitating the enforcement of substantive regulation of contributions and funding sources. 540 U.S. at

196; see also id. at 200-201 (upholding compelled disclosure of executory contracts where to hold otherwise

would “open a significant loophole” in disclosure requirements); id. at 237 (upholding broadcast station

record-keeping provisions to “provide an independently

compiled set of data for purposes of verifying candidates’ compliance with the disclosure requirements and

source limitations of BCRA and [FECA]”); Buckley, 424

U.S. at 67-68. Even in the context of independent campaign-related spending, the government’s interest in

disclosure “can be as strong as it is in coordinated

spending.” See id. at 81.

Contrary to appellant’s contention (Br. 48, 52-53, 57),

that interest can be implicated even where, as here, the

spending in question is constitutionally exempt from

statutory financing restrictions. The classic example is

the MCFL organization, which is permitted to spend

unlimited amounts on independent express advocacy.

See MCFL, 479 U.S. at 262-263. This Court held that

the government’s anticorruption interest in limiting corporate express advocacy does not apply to corporations

that possess the three essential characteristics of MCFL

organizations. Id. at 263-264; see p. 3, supra. The Court

observed, however, that an MCFL organization must

report the amounts used for its constitutionally pro-
47

tected independent expenditures. 479 U.S. at 262. The

Court explained that “MCFL will be required to identify

all contributors who annually provide * * * funds intended to influence elections * * * [or] who request

that the money be used for independent expenditures.

These reporting obligations provide precisely the information necessary to monitor MCFL’s independent

spending activity and its receipt of contributions.” Ibid.

The Court thus recognized that, although an MCFL organization is constitutionally entitled to finance independent expenditures with its general treasury funds,

FECA’s disclosure provisions advance an important governmental interest by enabling the Commission to determine whether a particular organization has crossed the

line from exempt to regulable activity.

BCRA’s reporting and disclaimer requirements serve

an analogous anti-circumvention purpose. Even when a

corporate speaker believes that a particular electioneering communication does not contain the functional equivalent of express advocacy, and therefore may be financed with corporate treasury funds under WRTL, the

FEC is entitled to make its own assessment of the communication’s content to determine whether the WRTL

exemption applies. The Commission’s 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 the

agency lacked knowledge that such communications had

been aired, or if it could not readily determine whether

particular advertisements were sponsored by corporations. Requiring disclosure of all corporate electioneering communications, even those that the corporate

speaker believes should qualify for the WRTL exemption, thus furthers a valid governmental interest.
48

That continuing enforcement interest distinguishes

this case from Davis, in which the Court invalidated

both a contribution-limit provision and an associated

disclosure requirement. In Davis, the Court invalidated

the challenged contribution regulations in their entirety, leaving the government with no remaining enforcement interest in receiving the information contained in the associated reports. See 128 S. Ct. at 2775.

Here, by contrast, Section 203 remains facially valid and

enforceable. The government therefore retains a valid

interest in obtaining the information necessary to enforce it, including disclosure reports filed by organizations whose as-applied exemption from the substantive

regulation depends on whether they can qualify for “the

benefit of the doubt” under WRTL. 

C. Appellant Demonstrates No First Amendment Burden

Arising From The Disclosure Provisions

1. Appellant presents no evidence that the disclosure

requirements would cause appellant or its donors to

suffer reprisals

At least since Buckley, this Court has recognized

that in some rare cases, involvement in political activity

can be so controversial that disclosing that involvement

to the public can be a genuine burden. See Buckley, 424

U.S. at 69. But the existence and extent of such a burden requires substantiation, with the kind of evidence

that can be presented in an as-applied challenge. For

that reason, this Court upheld BCRA’s disclosure requirements against a facial challenge, explaining that

the plaintiffs (which included appellant) had not made a

sufficient evidentiary showing as to the likelihood of

reprisals. McConnell, 540 U.S. at 199.
49

17 Indeed, appellant has disclosed the identity of approximately 1000

contributors during the 18 years it has maintained a PAC. See FEC

Disclosure Reports—Filer ID C00295527 (visited Feb. 17, 2009)

<http://query.nictusa.com/cgi-bin/fecimg/?C00295527>; FEC, Individuals Who Gave to This Committee: Citizens United Political Victory

Fund (visited Feb. 17, 2009) <http://query.nictusa.com/cgi-bin/com_

ind/C00295527/>.

The Court in McConnell made clear that its “rejection of plaintiffs’ facial challenge to the requirement to

disclose individual donors does not foreclose possible

future challenges to particular applications of that requirement.” 540 U.S. at 199. The Court further explained that, to succeed in such an as-applied challenge,

a plaintiff must demonstrate a “reasonable probability”

that the forced disclosures “would subject identified

persons to ‘threats, harassment, and reprisals.’” Id. at

198-199 (quoting Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 100 (1982)). As in McConnell, however, appellant has failed to present any evidence beyond “bald assertion” (J.A. 209a) that it, or any

of its contributors, faces any particularized risk of

“threats, harassment, and reprisals” if it is linked to

electioneering communications.

Appellant asserts that disclosure “can have grave

consequences” and “can expose contributors to harassment.” Br. 53 (emphasis added and internal quotation

marks omitted). Several amici similarly contend that

disclosure can sometimes lead to reprisals. Appellant,

however, points to no record evidence that it would reasonably fear reprisals.17 And this Court has consistently

rejected the proposition that the mere theoretical possibility of reprisals, unconnected to any particularized

showing of likely harm to specific speakers or donors, is

sufficient to render disclosure requirements unconstitu-
50

tional. See, e.g., Buckley, 424 U.S. at 68 (holding disclosure requirements constitutional even though “[i]t is

undoubtedly true that public disclosure of contributions

* * * will deter some individuals who otherwise might

contribute”). 

2. Appellant presents no evidence that the reporting

requirements would chill speech

Appellant speculates (Br. 54) that the reporting requirements might cause donors not to contribute to appellant, which would reduce appellant’s “ability to continue communicating” and “chill the constitutionally protected political speech of Citizens United’s supporters.”

To the extent appellant argues that some potential donors would not contribute because of a fear of reprisal

(or some other constitutionally cognizable fear), the argument fails for lack of evidence, as discussed above.

To the extent appellant claims that the disclosure

requirements would chill its own speech directly, that

argument has been explicitly rejected in McConnell and

numerous other cases holding that financial reporting

relating to speech is, as a matter of law, too removed in

time and space from the speech act to constitute an unconstitutional hindrance. See McConnell, 540 U.S. at

197-199, 201 (“[FECA’s] disclosure requirements are

constitutional because they ‘d[o] not prevent anyone

from speaking.’”) (quoting McConnell, 251 F. Supp. 2d

at 241); see also ACLF, 525 U.S. at 198 (rejecting challenge to requirement that petition circulators file affidavits); cf. Harriss, 347 U.S. at 626 (rejecting First

Amendment challenge to lobbyist-disclosure statute because “hazard” of speech being silenced by financial disclosure was “too remote” to outweigh government’s interest in protecting legislative process). The Court’s
51

decisions provide no support for the proposition that

financial-disclosure requirements impose an unconstitutional chill on First Amendment activity. To the contrary, because disclosure increases the range of information available to citizens, it furthers First Amendment values. See pp. 40-41, supra.

3. The disclaimer requirements impose no constitutionally significant burdens

BCRA requires the following disclaimers to be included in televised electioneering communications: (1)

an oral statement that the entity funding the communication “is responsible for the content of this advertising”; and (2) a written statement on the screen, with the

name and contact information of the entity responsible

for funding the communication, stating “that the communication is not authorized by any candidate or candidate’s committee.” See pp. 5-6, supra. Appellant argues

that it should not be forced to disclose its identity (Br.

45, 47 (citing McIntyre, 514 U.S. at 348)), but appellant

already discloses its identity at the website referred to

in the advertisements and at the beginning and end of

its film. See Citizens United, Hillary: The Movie (visited Feb. 17, 2009) <http://www.hillarythemovie.com>;

J.A. 26a-27a; Am. Compl. Exh. 2 (DVD version). Truly

anonymous speech therefore is not at issue in this case.

In any event, McIntyre’s holding regarding in-person

distribution of handbills unrelated to candidate elections

is inapposite here. See p. 38, supra.

Because appellant is not seeking to keep its identity

secret, it contends that the disclaimer requirement burdens it in two other ways. First, appellant argues that

the disclaimer would “distort the message of [appellant’s] advertisements by suggesting to viewers—most
52

18 Appellant further argues that BCRA’s disclosure requirements are

“fatally underinclusive because [they] do[ ] not reach advertisements

in nonbroadcast formats.” Br. 52; see id. at 47. The Court explicitly rejected an analogous argument in McConnell. See pp. 25-26, supra

(citing McConnell, 540 U.S. at 208).

of whom are undoubtedly familiar with the disclaimers

from the ubiquitous campaign advertisements aired preceding every election—that those advertisements convey a campaign-related message.” Br. 50. That argument lacks merit. Appellant has provided no evidence

that any person has ever been misled or confused by an

electioneering communication disclaimer. Cf. Washington State Grange v. Washington State Republican

Party, 128 S. Ct. 1184, 1193-1194 (2008) (rejecting facial

challenge to statute governing ballot listings where evidence did not show that any voter would be misled by

listings). And the danger of such confusion is slight.

The disclaimer requirements are precisely worded so

that the advertiser need only take responsibility “for the

content of this advertising,” with no additional characterization or definition. 11 C.F.R. 110.11(c)(4)(i) (emphasis added). If a viewer does not otherwise regard the

advertisements as campaign-related, a disclaimer that

identifies the sponsor as someone other than a candidate

or candidate committee is unlikely to produce that impression.18

Second, appellant also contends that the disclaimer

requirements are unconstitutional because they are

analogous to “restriction[s] on the quantity of political

expression,” such as expenditure limits. Br. 49 (quoting

Buckley, 424 U.S. at 55) (brackets in original). Specifically, appellant argues that the oral disclaimer would

preclude appellant from airing ten-second advertise-
53

19 Although appellant challenges both the spoken and written disclaimer requirements, the latter has little effect on an advertiser’s ability to use its time as it wishes, because the disclaimer may be as small

as four percent of the television screen’s vertical height. 11 C.F.R.

110.11(c)(4)(iii)(A). 

ments, thereby requiring it “to pay for a longer advertisement.” Br. 50.19

The government is not aware of any authority—and

appellant cites none—holding that an advertiser’s constitutional rights are impermissibly burdened by a requirement to use some of the time in its commercial to

convey important information relevant to that commercial. The Court in McConnell explained that similar disclaimer requirements had previously been imposed with

respect to other campaign-related advertising, 540 U.S.

at 230, and it upheld BCRA’s “inclusion of electioneering

communications in the [pre-existing] disclosure regime,”

id. at 231. More generally, federal and state governments often require extensive oral and written information to be included in various communications, such as

advertising for pharmaceuticals, attorneys, securities,

etc. As the Second Circuit stated in rejecting a First

Amendment challenge to a state labeling law:

[W]e note the potentially wide-ranging implications

of [plaintiff’s] First Amendment complaint. Innumerable federal and state regulatory programs require the disclosure of product and other commercial

information. See, e.g., 2 U.S.C. § 434 (reporting of

federal election campaign contributions); 15 U.S.C.

§ 78l (securities disclosures); 15 U.S.C. § 1333 (tobacco labeling); 21 U.S.C. § 343(q)(1) (nutritional

labeling); 33 U.S.C. § 1318 (reporting of pollutant

concentrations in discharges to water); 42 U.S.C.
54

20 Appellant’s assertion (Br. 54) that BCRA’s disclosure requirements

are unconstitutional because they impose “substantial administrative

costs” is similarly unsupported. The Court in McConnell upheld the

disclosure requirements on their face, noting that they “are actually

somewhat less intrusive than the comparable requirements that have

long applied to persons making independent expenditures.” 540 U.S.

at 196 n.81; cf. id. at 235-237 (upholding BCRA’s broadcaster record-

§ 11023 (reporting of releases of toxic substances); 21

C.F.R. § 202.1 (disclosures in prescription drug advertisements); 29 C.F.R. § 1910.1200 (posting notification of workplace hazards); Cal. Health & Safety

Code § 25249.6 (“Proposition 65”; warning of potential exposure to certain hazardous substances); N.Y.

Envtl. Conserv. Law § 33-0707 (disclosure of pesticide formulas). To hold that the Vermont statute is

insufficiently related to the state’s interest in reducing mercury pollution would expose these long established programs to searching scrutiny by unelected

courts. Such a result is neither wise nor constitutionally required.

National Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 116

(2d Cir. 2001), cert. denied, 536 U.S. 905 (2002).

In each of those areas, the advertiser undoubtedly

would prefer to use its time and space for content other

than a disclaimer. But that preference does not state a

constitutional claim, for the disclaimer requirements do

not prevent anyone from advertising. They simply may

have the effect of causing appellant (like numerous other

regulated advertisers) to devote a portion of an advertisement to the disclaimer or to purchase a few more

seconds of broadcast time than its message would otherwise call for. There is no warrant in this Court’s precedents for treating those seconds as a burden of constitutional dimension.20
55

keeping requirement against administrative-burden challenge). Disclosure regarding independent expenditures, in turn, requires fewer resources than disclosure by a corporation’s separate segregated fund.

See MCFL, 479 U.S. at 252-254 (comparing requirements); id. at 262

(noting that MCFL was not exempt from independent-expenditure disclosures). Appellant presents no evidence to demonstrate that its $12

million budget would not permit the absorption of the administrative

costs associated with filing the electioneering communications forms,

or to distinguish the burdens at issue in this case from those advanced

by appellant and others in the facial challenge rejected in McConnell.

These costs do not rise to the level of a First Amendment burden, much

less a burden sufficient to outweigh the important governmental interests that underlie BCRA’s disclosure requirements.

CONCLUSION

The judgment of the district court should be affirmed.

Respectfully submitted.

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel

KEVIN DEELEY

Assistant General Counsel

ADAV NOTI

Attorney

Federal Election Commission

EDWIN S. KNEEDLER

Acting Solicitor General

MALCOLM L. STEWART

Deputy Solicitor General

WILLIAM M. JAY

Assistant to the Solicitor

General

FEBRUARY 2009