UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS UNITED, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civ. No. 07-2240 (ARR, RCL, RWR) 

 ) 

FEDERAL ELECTION COMMISSION, ) OPPOSITION TO 

 ) PRELIMINARY INJUNCTION

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM IN 

OPPOSITION TO PLAINTIFF’S SECOND MOTION FOR PRELIMINARY 

INJUNCTION 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

January 8, 2008 FEDERAL ELECTION COMMISSION 

 

Case 1:07-cv-02240-RCL Document 33 Filed 01/08/2008 Page 1 of 29
TABLE OF CONTENTS 

I. FACTUAL BACKGROUND..............................................................................................1 

II. STATUTORY AND REGULATORY PROVISIONS .......................................................2 

ARGUMENT............. ......................................................................................................................4 

III. PLAINTIFF CANNOT DEMONSTRATE A SUBSTANTIAL LIKELIHOOD OF 

SUCCESS ON THE MERITS.............................................................................................4 

 A. The Funding Restriction Is Constitutional On Its Face ...........................................4 

1. McConnell Upheld The Funding Restriction On Its Face ...........................5 

2. WRTL Did Not Overrule McConnell ...........................................................6 

3. This Court Should Not Overrule McConnell...............................................9 

 B. The Funding Restriction Is Constitutional As Applied To Hillary: The Movie ....13 

 C. The Disclosure Requirements Are Constitutional As Applied To Hillary: 

The Movie...............................................................................................................16 

 D. Plaintiff’s Motion For A Preliminary Injunction Regarding 

The “Questions” Ad Is Moot .................................................................................17 

IV. PLAINTIFF FAILS TO DEMONSTRATE IRREPARABLE INJURY...........................17 

 A. Plaintiff’s Delay In Moving For A Preliminary Injunction Indicates An 

Absence of Irreparable Harm.................................................................................18 

 B. Plaintiff Fails To Show Irreparable Harm Regarding The Application Of 

The EC Financing Restrictions To Hillary ............................................................19 

 C. Plaintiff’s Bare Allegations Of Chill Regarding Its Facial Challenge To The 

EC Financing Provisions Are Insufficient To Demonstrate Irreparable Harm......21 

 D. Plaintiff Fails To Demonstrate That Disclosure Related To Hillary Would 

Lead To Irreparable Harm .....................................................................................22 

V. THE RELIEF PLAINTIFF REQUESTS WOULD NOT BE IN THE PUBLIC 

INTEREST AND WOULD HARM THE COMMISSION...............................................23 

CONCLUSION..............................................................................................................................25 

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TABLE OF AUTHORITIES 

Cases 

Agostini v. Felton, 521 U.S. 203 (1997) ..........................................................................................9 

Aviation Consumer Action Proj. v. Washburn, 535 F.2d 101 (D.C. Cir. 1976) ............................21 

Buckley v. Valeo, 424 U.S. 1 (1976)........................................................................................16, 23 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006)............ 17-19, 23 

Citibank, N.A. v. Citytrust, 756 F.2d 273 (2d Cir. 1985)...............................................................19 

City of Moundridge v. Exxon Mobil Corp., 429 F. Supp. 2d 117 (D.D.C. 2006)..........................18 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) ..............................................................6 

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

Herschaft v. New York City Campaign Fin. Bd., 139 F. Supp. 2d 282 (E.D.N.Y. 2001)..............23 

Hohn v. United States, 524 U.S. 236 (1998) ...................................................................................9 

Hutto v. Davis, 454 U.S. 370 (1982) ...............................................................................................9 

Mazurek v. Armstrong, 520 U.S. 968 (1997)...........................................................................18, 22 

McConnell v. FEC, 540 U.S. 93 (2003)................................................................................. passim 

Neb. Health & Human Servs. v. HHS, 435 F.3d 326 (D.C. Cir. 2006)..........................................21 

NTEU v. United States, 927 F.2d 1253 (D.C. Cir. 1991)...............................................................20 

Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989)............................9 

Scott-Blanton v. Universal City Studios Prods. LLLP, 495 F. Supp. 2d 74 (D.D.C. 2007) ..........19 

Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533 (1983).....................................9 

United States v. Webb, 255 F.3d 890 (D.C. Cir. 2001) ...................................................................9 

Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001)..........................................21 

Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987)...................................................................19, 22 

Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985)..................................................17, 23 

Wisconsin Right to Life, Inc. v. FEC, 542 U.S. 1305 (2004)...................................................21, 24 

ii

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iii

Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006).............................................................7 

Statutes and Regulations 

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

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

2 U.S.C. § 434f(a)(i) ......................................................................................................................10 

2 U.S.C. § 441b............................................................................................................................ 5-6 

2 U.S.C. § 441b(a) .....................................................................................................................3, 17 

2 U.S.C. § 441b(b)(2) ...............................................................................................................3, 17 

11 C.F.R. § 100.29(b)(1) .................................................................................................................2 

11 C.F.R. § 100.29(b)(3) .................................................................................................................2 

11 C.F.R. § 100.29(b)(7)(i)(G) .......................................................................................................2 

11 C.F.R. § 100.29(e)(1) .................................................................................................................4 

11 C.F.R. § 114.15.....................................................................................................................3, 15 

11 C.F.R. § 114.15(a) ......................................................................................................................3 

11 C.F.R. § 114.15(b) ...............................................................................................................3, 17 

11 C.F.R. § 114.15(c) ................................................................................................................4, 17 

Bipartisan Campaign Reform Act, Pub. L. No. 107-155....................................................... passim 

Federal Election Campaign Act, 2 U.S.C. §§ 431-55............................................................ passim 

Miscellaneous 

11A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2948.1..............19 

18 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 4416 ........................6 

Electioneering Communications, 72 Fed. Reg. 72899 (Dec. 26, 2007) ....................................3, 15 

FEC Advisory Opinion 2004-30......................................................................................................4 

LCvR 65.1(d) .................................................................................................................................10 

Case 1:07-cv-02240-RCL Document 33 Filed 01/08/2008 Page 4 of 29
 Defendant Federal Election Commission (“Commission”) files this memorandum of law 

in opposition to Plaintiff’s Second Motion for Preliminary Injunction. Plaintiff’s motion should 

be denied because Citizens United’s challenge to the facial validity of the prohibition on 

corporate and union funding of electioneering communications is foreclosed by McConnell v. 

FEC, 540 U.S. 93 (2003), and plaintiff’s as-applied challenge to that same statute fails under the 

constitutional test established in FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) 

(“WRTL”). Thus, plaintiff cannot meet its burden to demonstrate a likelihood of success on the 

merits of its case. Plaintiff also cannot demonstrate any irreparable harm that would arise in the 

absence of an injunction, and the interests of the Commission and the public weigh strongly in 

favor of the Commission’s continued enforcement of the challenged statutory provisions. 

I. FACTUAL BACKGROUND1

Plaintiff Citizens United, a corporation headquartered in Washington, D.C., has planned 

since at least January 2007 to distribute a movie about presidential candidate Senator Hillary 

Clinton in the states holding early presidential primaries. (See Def.’s Opp. to Pl.’s Mot. for 

Prelim. Inj. (“Def.’s First P.I. Opp.”) at Part I.C.) The film, entitled Hillary: The Movie, 

“discusses her Senate record, her White House record during President Bill Clinton’s presidency, 

and her presidential bid,” and includes statements regarding “whether she would make a good 

president.” (Am. Compl. ¶ 14; see also id. Exh. 2 (script of movie); infra Part III.B (discussing 

film’s opposition to Senator Clinton’s candidacy).)2 Plaintiff plans to release the movie 

“somewhere in the December 2007 to February 2008 time-frame” (Am Compl. ¶ 14), contending 

 

1

 Factual background regarding the parties to this action and plaintiff’s planned advertising 

campaign is provided at Parts I.A-B and I.D of the Commission’s opposition to plaintiff’s first 

preliminary injunction motion. 

2

 Because the Commission did not receive the DVD of the film until 3:00 p.m. on January 

7, 2008, this memorandum refers to the script that plaintiff had earlier filed as an exhibit to the 

Amended Complaint. 

 

Case 1:07-cv-02240-RCL Document 33 Filed 01/08/2008 Page 5 of 29
that the time periods leading up to both the presidential primary and general elections will be 

“times when the public’s interest in Senator Clinton will be at its peak, which is the key to 

maximizing box office and DVD sales for Hillary.” (Id. ¶ 20.) 

In its Amended Complaint, plaintiff alleges that, in addition to theatrical and DVD 

release, the movie “is slated for . . . cable on-demand broadcast.” (Id. ¶ 14.) Specifically, 

Plaintiff alleges that it has received an “offer” to have the movie included in the programming 

available on a video-on-demand cable “channel” entitled “Elections ‘08,” in exchange for “a fee” 

to be paid by plaintiff. (See id. ¶ 28.) 

II. STATUTORY AND REGULATORY PROVISIONS 

The Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-55, as amended by the 

Bipartisan Campaign Reform Act (“BCRA”), Pub. L. No. 107-155, defines an “electioneering 

communication” (“EC”) as a “broadcast, cable, or satellite communication” that refers to a 

clearly identified federal candidate and is made within sixty days before a general election or 

thirty days before a primary election in which that candidate is running. See 2 U.S.C. 

§ 434(f)(3)(A)(i).3

 ECs are subject to reporting and disclaimer requirements (collectively, 

“disclosure provisions”), as discussed at Part II of the Commission’s opposition to plaintiff’s first 

preliminary injunction motion. 

 

3

 The Commission’s regulations, in relevant part, define a “cable communication” as a 

communication that is “aired, broadcast, cablecast or otherwise disseminated through the 

facilities of a . . . cable television system” and that “[c]an be received by 50,000 or more persons 

in a State where a primary election . . . is being held within 30 days.” 11 C.F.R. 

§ 100.29(b)(1),(3). The term “‘[c]an be received by 50,000 or more persons’ means . . . [i]n the 

case of a communication appearing exclusively on a cable . . . system, but not on a broadcast 

station or network, that the viewership of the cable system or satellite system lying within a . . . 

State is 50,000 or more.” 11 C.F.R. § 100.29(b)(7)(i)(G). Although Plaintiff does not specify 

the cable systems on which its film will be available, more than 50,000 people in each of Iowa, 

New Hampshire, Michigan, Nevada, South Carolina, and Florida (Am. Compl. ¶ 17) have access 

to cable-based video-on-demand channels. See Federal Communications Commission, Elections 

Communication Database, at http://gullfoss2.fcc.gov/ecd/. 

2

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In addition, BCRA provides that ECs may not be financed with the general treasury funds 

of corporations or labor unions. See 2 U.S.C. § 441b(a),(b)(2). In WRTL, however, the Supreme 

Court held that this funding restriction may constitutionally be applied only to an EC that is the 

“functional equivalent of express advocacy,” 127 S. Ct. at 2667, which the Court’s controlling 

opinion defined as a communication that is “susceptible of no reasonable interpretation other 

than as an appeal to vote for or against a specific candidate.” Id.; see infra Part III.B (discussing 

application of WRTL to Hillary: The Movie). 

In light of WRTL, the Commission recently promulgated regulations exempting ECs that 

are not the functional equivalent of express advocacy (hereinafter “WRTL ads”) from the EC 

funding restriction. See Electioneering Communications, 72 Fed. Reg. 72,899, 72,914-15 (Dec. 

26, 2007) (to be codified at 11 C.F.R. § 114.15). The new regulations first provide that an EC 

qualifies as a WRTL ad unless the EC is “susceptible of no reasonable interpretation other than as 

an appeal to vote for or against a clearly identified Federal candidate.” 11 C.F.R. § 114.15(a). 

The regulations then set forth how the Commission will determine whether this test is met. In 

relevant part, the regulations create “safe harbors” for any communications (like those at issue in 

WRTL) that do not “mention any election [or] candidacy” or “take a position on any candidate’s 

or officeholder’s character, qualifications, or fitness for office”; such an EC will qualify as a 

WRTL ad as long as it either (1) asks the named candidate or the public to take action as to the 

governmental issue on which the ad focuses, or (2) promotes a commercial transaction. See 11 

C.F.R. § 114.15(b). 

For an EC falling outside the safe harbors, the regulations provide that the Commission 

“will consider whether the communication includes any indicia of express advocacy and whether 

the communication has an interpretation other than as an appeal to vote for or against a clearly 

3

Case 1:07-cv-02240-RCL Document 33 Filed 01/08/2008 Page 7 of 29
identified Federal candidate in order to determine whether, on balance, the communication is [a 

WRTL ad].” 11 C.F.R. § 114.15(c). The factors considered in making this determination include 

factors substantially identical to those listed in WRTL’s controlling opinion, 127 S. Ct. at 2667 — 

i.e., whether the EC “[m]entions any election [or] candidacy,” “[t]akes a position on any 

candidate’s or officeholder’s character, qualifications, or fitness for office,” “[f]ocuses on a 

public policy issue,” or “[i]ncludes a call to action or other appeal that interpreted in conjunction 

with the rest of the communication urges an action other than voting for or against . . . a clearly 

identified Federal candidate.” 11 C.F.R. § 114.15(c).4

ARGUMENT

The factors to be weighed in considering a motion for a preliminary injunction — and the 

heavy burden that a plaintiff must meet to succeed under those factors — are discussed at Part III 

of the Commission’s opposition to plaintiff’s first preliminary injunction motion. 

III. PLAINTIFF CANNOT DEMONSTRATE A SUBSTANTIAL LIKELIHOOD OF 

SUCCESS ON THE MERITS 

A. The Funding Restriction Is Constitutional On Its Face 

Plaintiff’s facial challenge to the EC funding restriction is merely an attempt to relitigate 

an issue that the Supreme Court conclusively decided in McConnell. As discussed below, 

 

4

 Predating the decision in WRTL, a “media exemption” in BCRA and the Commission’s 

regulations provides that the EC requirements and restrictions do not apply to communications 

that meet the statutory definition of an EC but “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); 11 C.F.R. § 100.29(c)(1). Citizens United has not asked the Commission to 

opine on whether Hillary: The Movie would qualify for the media exemption, but it appears that 

the film would not qualify under the Commission’s prior analysis, which has found that a 

group’s paying to air an EC tends to indicate that the media exemption does not apply to that EC. 

See, e.g., FEC Advisory Opinion 2004-30, http://saos.nictusa.com/aodocs/2004-30.pdf, at 7 

(Sept. 10, 2004) (“[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 . . . that can 

help to distinguish an electioneering communication from exempted media activity.”) (internal 

quotation marks omitted). 

4

Case 1:07-cv-02240-RCL Document 33 Filed 01/08/2008 Page 8 of 29
McConnell upheld the facial constitutionality of the exact statutory provision that Citizens 

United now challenges, and nothing in WRTL can be construed to overrule this holding. 

1. McConnell Upheld The Funding Restriction On Its Face 

It is “firmly embedded” in the Supreme Court’s First Amendment jurisprudence that 

corporations and labor unions may constitutionally be prohibited from using their general 

treasuries to fund communications that expressly advocate for or against the election of a 

candidate. McConnell, 540 U.S. at 203. In BCRA, Congress broadened this prohibition to 

encompass not just corporate and union express advocacy expenditures (which were already 

prohibited under FECA), but also corporate and union expenditures for communications that 

meet the statutory definition of an EC. See BCRA § 203 (codified as part of 2 U.S.C. § 441b). 

Immediately after BCRA was enacted, Citizens United and other organizations filed a 

facial challenge to the constitutionality of the EC funding restriction, arguing that the statute was 

overbroad to the extent that it prohibited corporations from financing non-campaign issue speech 

immediately before an election. The Supreme Court rejected this challenge in McConnell, which 

upheld BCRA § 203 on its face. McConnell, 540 U.S. at 203-09. The Court agreed with the 

plaintiffs that the corporate funding restriction encompassed both campaign advocacy and some 

“issue ads,” but the Court held that the government’s long-recognized and compelling interests in 

regulating corporate-funded express advocacy apply with equal force to the interests in 

regulating corporate-funded speech that is “the functional equivalent of express advocacy.” Id. 

at 205-06. The Court reasoned that, because the EC definition only encompasses 

communications that refer to a specific candidate shortly before an election, the fact that a 

communication meets the statutory criteria “strongly supports” a finding that any given EC is the 

functional equivalent of express advocacy, and, therefore, that the funding restriction’s potential 

5

Case 1:07-cv-02240-RCL Document 33 Filed 01/08/2008 Page 9 of 29
“application to pure issue ads” is insubstantial.5

 See id. at 207. Indeed, the Court noted, “[e]ven 

if we assumed that BCRA will inhibit some constitutionally protected corporate and union 

speech, that assumption would not justify prohibiting all enforcement of the law.” Id. at 207 

(internal quotation marks omitted). Thus, McConnell held that the EC provision was “amply 

justifie[d],” id. at 208, and the plaintiffs had not “carried their heavy burden” to show the 

funding restriction to be unconstitutional on its face. Id. 

2. WRTL Did Not Overrule McConnell

Despite the Supreme Court’s holding — just four years ago — that the EC funding 

restriction in 2 U.S.C. § 441b is constitutional on its face, Citizens United now argues that it is 

likely to prevail on the merits of its current challenge to the facial constitutionality of the exact 

same provision. Plaintiff’s argument (Pl.’s Mem. in Support of Second Mot. for Prelim. Inj. 

(“Pl.’s Second P.I. Mem.”) at 8-11) appears to be based entirely on one Justice’s concurrence in 

WRTL, which is the only Supreme Court case since McConnell to have addressed the EC funding 

restriction. In effect, plaintiff claims that WRTL called McConnell into question to such an 

extent that this Court may now overrule it.6

Two aspects of WRTL, however, make clear that it did not overrule McConnell’s holding 

as to the facial constitutionality of the EC funding restriction. First, the WRTL lawsuit was not 

even a facial challenge to the statute — it was an as-applied challenge regarding three ECs that 

 

5

 McConnell also held that the application of the funding restriction to nonprofit 

corporations “is plainly valid,” provided that BCRA § 203 is construed not to apply to so-called 

MCFL corporations. McConnell, 540 U.S. at 209-11 (citing FEC v. Mass. Citizens for Life, Inc., 

479 U.S. 238 (1986)). Citizens United is not an MCFL corporation. (Am. Compl. ¶ 8.) 

6

 Citizens United was one of the plaintiffs whose facial challenge to the EC funding 

restriction was rejected in McConnell; thus, plaintiff’s current facial challenge asking this Court 

to overrule McConnell is res judicata. See generally 18 Charles A. Wright & Arthur R. Miller, 

Federal Practice & Procedure § 4416 nn. 7-14 (describing issue preclusion as applying when 

issue was actually litigated in prior action between same parties and actually decided by final and 

binding disposition on merits). 

6

Case 1:07-cv-02240-RCL Document 33 Filed 01/08/2008 Page 10 of 29
shared certain specific “characteristics” (e.g., they did not “take a position on a candidate’s 

character, qualifications, and fitness for office”). WRTL, 127 S. Ct. at 2667. Indeed, the 

Supreme Court had explicitly held in an earlier decision that the action would proceed as an asapplied challenge. Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410, 411-412 (2006) 

(reversing lower court’s initial dismissal of case, noting that “[McConnell] found BCRA’s 

primary definition of ‘electioneering communication’ facially valid when used with regard to 

BCRA’s disclosure and funding requirements” but that “[i]n upholding § 203 against a facial 

challenge, we did not purport to resolve future as-applied challenges”); see also id. at 410 

(“Appellant . . . brought this action . . . seeking a judgment declaring BCRA unconstitutional as 

applied to several broadcast advertisements that it intended to run during the 2004 election.”) 

(emphasis added); FEC v. Wisconsin Right to Life, Inc., S. Ct. No. 06-969, Questions Presented, 

http://www.supremecourtus.gov/qp/06-00969qp.pdf (“Whether the three-judge district court 

erred in holding that the federal statutory prohibition on a corporation’s use of general treasury 

funds to finance ‘electioneering communications’ is unconstitutional as applied to three 

broadcast advertisements that appellee proposed to run in 2004.”) (emphasis added). Thus, no 

facial challenge to the EC funding restriction was properly before the WRTL Court. 

Furthermore, the Chief Justice’s controlling opinion expressly stated that it was not 

overruling McConnell. See WRTL, 127 S. Ct. at 2670 n.8 (“[I]n deciding this as-applied 

challenge, we have no occasion to revisit McConnell’s conclusion that the statute is not facially 

overbroad.”); id. at 2674 (“McConnell held that express advocacy of a candidate or his opponent 

by a corporation shortly before an election may be prohibited, along with the functional 

equivalent of such express advocacy. We have no occasion to revisit that determination today.”); 

see also id. at 2674 (Alito, J., concurring) (“[I]t is unnecessary to . . . decide whether § 203 is 

7

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unconstitutional on its face.”); id. at 2686-87 (opinion of Scalia, J.) (concurring only in judgment 

because Court’s opinion should have gone further and overruled McConnell). Far from 

overruling McConnell, the Chief Justice’s opinion relied upon McConnell’s reasoning when it 

analyzed “whether the speech at issue [i.e., WRTL’s advertising] is the ‘functional equivalent’ of 

speech expressly advocating the election or defeat of a candidate for federal office.” WRTL, 127 

S. Ct. at 2659 (quoting McConnell, 540 U.S. at 206). The Court then construed McConnell’s 

“functional equivalent of express advocacy” test to encompass ECs that are “susceptible of no 

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

at 2667. This holding does not overrule McConnell — it applies it.7

The only support that plaintiff can muster for its reading of WRTL is a single reference 

from Justice Alito’s concurrence, which no other Justice joined. (Pl.’s Second P.I. Mem. at 10.) 

Justice Alito wrote: “If it turns out that the implementation of the as-applied standard set out in 

the principal opinion impermissibly chills political speech, we will presumably be asked in a 

future case to reconsider the holding in McConnell that § 203 is facially constitutional.” WRTL, 

127 S. Ct. at 2674 (Alito, J. concurring); see also infra Part III.A.3 (noting evidence that WRTL

standard has not “chill[ed] political speech”). But this statement only makes clearer that the 

Court’s opinion did not itself “reconsider the holding in McConnell.” 

In sum, the WRTL Court did not decide any question regarding the facial validity of the 

EC funding restriction. On that point, McConnell remains directly controlling authority. 

 

7

 Citizens United itself correctly notes that the holding of WRTL “prescribed how asapplied challenges must be conducted” in the future. (Pl.’s Second P.I. Mem. at 10 (emphasis 

added) (citing WRTL, 127 S. Ct. at 2666-67).) 

8

Case 1:07-cv-02240-RCL Document 33 Filed 01/08/2008 Page 12 of 29
 3. This Court Should Not Overrule McConnell

Although McConnell is controlling here, plaintiff nonetheless asks this Court to strike 

down the EC funding restriction on its face, apparently on the basis that neither McConnell nor 

WRTL have provided plaintiff with the precise protection to which it believes it is entitled. (See

Pl.’s Second P.I. Mem. at 8-11.) There are two primary flaws in this argument. 

First, this Court does not have the authority to overrule a Supreme Court holding. 

Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) (“Needless to say, 

only this Court may overrule one of its precedents.”); Hutto v. Davis, 454 U.S. 370, 375 (1982) 

(“[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this 

Court must be followed by the lower federal courts no matter how misguided the judges of those 

courts may think it to be.”). The WRTL Court’s as-applied narrowing of McConnell does not 

affect this analysis, for no lower court may ignore binding precedent on the theory that a 

subsequent Supreme Court decision has indicated reservations about the controlling holding. 

Hohn v. United States, 524 U.S. 236, 252-53 (1998) (“Our decisions remain binding precedent 

until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts 

about their continuing vitality.”); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 

U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to 

rest on reasons rejected in some other line of decisions, [the lower court] should follow the case 

which directly controls, leaving to this Court the prerogative of overruling its own decisions.”); 

United States v. Webb, 255 F.3d 890, 897-98 (D.C. Cir. 2001) (“[Defendant] asks us to disregard 

the earlier [Supreme Court] case because he counts five Justices as no longer supporting its 

holding. That, of course, we may not do.”) (citing Agostini v. Felton, 521 U.S. 203, 237 (1997)). 

9

Case 1:07-cv-02240-RCL Document 33 Filed 01/08/2008 Page 13 of 29
This alone should end the inquiry into the merits of plaintiff’s facial challenge, but, in 

addition to being legally precluded, plaintiff’s argument is also factually untenable. Plaintiff 

claims that the as-applied test of WRTL has proven unworkable because “[a]s-applied remedies, 

even when expedited, still are too slow.” (Pl.’s Second P.I. Mem. at 11.) The only possible 

basis for this statement is Citizens United’s current lawsuit, which is the sole matter to date 

involving the application of WRTL to be brought either in the courts or before the Commission. 

And the only reason that plaintiff could possibly allege that this action is “too slow” — despite 

plaintiff’s having been granted a hearing within twenty days under LCvR 65.1(d) — is because it 

was not decided before the Iowa caucuses and may not be decided before certain other 

presidential primaries. (See Am. Compl. ¶ 17.) But plaintiff’s argument ignores the fact that 

plaintiff itself created the current situation by waiting until two weeks after the EC window 

opened in Iowa to file this action, despite having intended for approximately one year to release 

its film now. (See Def.’s First P.I. Opp. at Part I.C.) Indeed, plaintiff could have asked the 

Commission at any time after WRTL was decided (on June 25, 2007) whether the EC funding 

restriction would apply to plaintiff’s ads or movie, and the Commission, by law, would have 

been required to provide an answer in sixty days or less. 2 U.S.C. § 437f(a)(1).8

 Plaintiff 

certainly did not need to wait six months and then conduct its challenge through highly expedited 

preliminary injunction motions, but, having chosen to do so, plaintiff cannot now seriously argue 

 

8

 When necessary, the Commission expedites its response to an urgent request for an 

advisory opinion, providing an answer in well under sixty days. See, e.g., FEC Advisory 

Opinion 2006-16, http://saos.nictusa.com/aodocs/2006-16.pdf (May 10, 2006) (issued in 16 

days); FEC Advisory Opinion 2006-19, http://saos.nictusa.com/aodocs/2004-30.pdf (June 5, 

2006) (issued in 31 days); FEC Advisory Opinion 2007-3, http://saos.nictusa.com/aodocs/2007-

03.pdf (Mar. 1, 2007) (issued in 28 days); see also FEC, FEC Releases Draft Advisory Opinion 

Under Expedited Process, http://www.fec.gov/press/press2006/20060504detertao.html (May 4, 

2006) (explaining expedited process for issuance of an advisory opinion). 

10

Case 1:07-cv-02240-RCL Document 33 Filed 01/08/2008 Page 14 of 29
that the statute must be declared unconstitutional on its face because the court system is “too 

slow.” 

Plaintiff also argues that the unworkability of as-applied challenges is demonstrated by 

the Commission’s statement in a prior brief that it had not yet analyzed the application of WRTL

to the “Questions” ad. (Pl.’s Second P.I. Mem. at 11.) Although the Commission now agrees 

that “Questions” is a WRTL ad, see infra Part III.D, there was no reason for the Commission to 

address this issue in the context of plaintiff’s first preliminary injunction motion. The only 

question presented in the first motion was whether BCRA’s EC disclosure provisions could 

constitutionally be applied to WRTL ads in general, and that question was already properly 

before the Court on the basis of plaintiff’s “Wait” and “Pants” ads alone. (See Def.’s Opp. to 

Pl.’s Mot. to Consol. at 9; see also Def.’s First P.I. Opp. at 17 n.7).) In other words, plaintiff’s 

first preliminary injunction motion purported to encompass all WRTL ads, and there were two 

such ads plainly presented by the Complaint, so whether “Questions” also met the WRTL

definition had no bearing on the motion. Because (1) this determination was immaterial to the 

then-pending motion, (2) the appropriate application of the Commission’s new regulations was 

less immediately obvious as to “Questions” than it was as to the other ads alleged in the original 

Complaint, see infra Part III.D, and (3) the FEC’s Commissioners had begun to disperse for the 

holidays (as noted in the Commission’s motion for an extension of time to respond to the current 

motion), the Commission’s brief — filed five business days after plaintiff’s first motion — 

simply did not take a position about whether “Questions” qualifies as a WRTL ad. Thus, 

plaintiff’s suggestion that the Commission’s initial response as to “Questions” undermines the 

constitutionality of BCRA itself (Pl.’s Second P.I. Mem. at 7-8, 11) is a manifest distortion of 

both the Commission’s statement and the context in which that statement arose. In no way does 

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the Commission’s declining to opine on an issue that did not need to be addressed demonstrate 

any unworkability in the regulatory system of which plaintiff chose not to avail itself.9

 

At its core, plaintiff’s argument regarding the “unworkability” of WRTL appears to rely 

on a misunderstanding of what the term “workable” means for First Amendment purposes. 

While plaintiff believes the “expense and burden of hiring a lawyer” (Pl.’s Second P.I. Mem. 

at 11) demonstrates constitutional unworkability, the relevant question as framed by Justice Alito 

is whether “the implementation of the as-applied standard . . . impermissibly chills political 

speech.” WRTL, 127 S. Ct. at 2674 (Alito, J. concurring). The available evidence demonstrates 

no impermissible chilling effect arising from WRTL, for every group running ECs in the 2008 

election — except Citizens United — has done so without needing to resort to litigation. For 

example, in December 2007 alone (when the 30-day EC window was open in six states), entities 

reported over $6,000,000 in EC disbursements, with no accompanying litigation or regulatory 

challenges. See Electioneering Communications Reports, 

http://www.fec.gov/finance/disclosure/ec_table.shtml (last visited Jan. 4, 2008). The 

Commission’s promulgation at the end of December of detailed regulations defining WRTL ads 

— including safe harbor provisions for those who choose to take advantage of them — has 

provided even more speech-enabling guidance, as demonstrated by the quantity of EC 

disbursements reported immediately after the regulations became effective. See id.

10 And press 

 

9

 As noted previously, if plaintiff had wanted an answer from the Commission on this 

question, it could have directly asked the Commission months ago instead of waiting to file this 

last-minute action. 

10 One such report, filed the day after the Commission’s WRTL regulations went in effect, 

disclosed a $2,025,000 EC expenditure to fund a WRTL ad from the general treasury of a 

nonprofit corporation. See The ONE Campaign, FEC Form 9, 

http://images.nictusa.com/cgi-bin/fecimg/?F27039580113 (Dec. 27, 2007); Ed O’Keefe, One 

Campaign Hits Airwaves, washingtonpost.com (Dec. 12, 2007) 

http://blog.washingtonpost.com/channel-08/2007/12/one_campaign_hits_airwaves.html

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reports indicate that substantial additional EC purchases will be made throughout the presidential 

primary campaign.11 Yet, despite all of the ECs that have been and will be made, Citizens 

United claims that EC speech as a whole has been so chilled that the EC funding restriction must 

be struck down on its face. (Pl.’s Second P.I. Mem. at 10-11.) Citizens United’s bootstrapped 

argument must fail, for plaintiff’s decision to file this lawsuit — again, the only one of its kind 

since WRTL was decided — does not demonstrate that the WRTL standard has impermissibly 

chilled political speech. 

B. The Funding Restriction Is Constitutional As Applied To Hillary: The Movie

As the foregoing demonstrates, the EC funding restriction is constitutional under 

McConnell and WRTL as applied to all ECs that are the functional equivalent of express 

advocacy. Hillary: The Movie is such an EC. 

The controlling opinion in WRTL held that a communication is the functional equivalent 

of express advocacy if it is “susceptible of no reasonable interpretation other than as an appeal to 

vote for or against a specific candidate.” WRTL, 127 S. Ct. at 2667. The opinion immediately 

then listed criteria relevant to the application of this standard and explained why the ads at issue 

in WRTL could be so interpreted: 

Under this test, WRTL’s three ads are plainly not the functional equivalent 

of express advocacy. First, their content is consistent with that of a 

genuine issue ad: The ads focus on a legislative issue, take a position on 

the issue, exhort the public to adopt that position, and urge the public to 

 

(containing description and video of ad that encouraged viewers to ask presidential candidates 

about poverty issues and showed campaign buttons of all Democratic and Republican 

candidates). 

11 See, e.g., Leslie Wayne, Outside Groups Spend Heavily and Visibly to Sway ’08 Races, 

N.Y. Times, Jan. 1, 2008, http://www.nytimes.com/2008/01/01/us/politics/01donate.html (noting 

groups taking advantage of WRTL exemption); Sarah Liebowitz, Edwards, Clinton Bankrolled 

from Afar, Concord Monitor, Jan. 4, 2008, 

http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20080104/NEWS03/801040355/10

43/NEWS01 (discussing spending on, inter alia, radio broadcasts in New Hampshire). 

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contact public officials with respect to the matter. Second, their content 

lacks indicia of express advocacy: The ads do not mention an election, 

candidacy, political party, or challenger; and they do not take a position on 

a candidate’s character, qualifications, or fitness for office. 

Id.; see also Pl.’s Second P.I. Mem. at 7 (acknowledging that Court “mentioned such matters in 

applying its no-other-reasonable-interpretation test”). The Commission included these criteria, 

effectively verbatim, in its regulations implementing WRTL. See supra Part II. 

In light of the Supreme Court’s criteria, plaintiff’s as-applied challenge to the EC funding 

restriction must fail. As plaintiff concedes, its movie “(a) mentions election-related topics 

(election, candidacy, party, voting) and (b) takes a position on a candidate’s character, 

qualifications, and fitness for office.” (Pl.’s Second P.I. Mem. at 7.)12 In fact, plaintiff’s 

acknowledgement that the film “takes a position” on Senator Clinton’s candidacy significantly 

understates the extent to which Hillary: The Movie both opposes that candidacy and attacks her 

“character, qualifications, and fitness for office.” The film contains at least twenty-four explicit 

references to Senator Clinton’s campaign for president, many of which state unequivocally that 

she should not be elected. For example, the movie declares “beyond a shadow of a doubt” that 

Senator Clinton “is not equipped, not qualified to be our commander in chief” (Am. Compl. Exh. 

2 at 71); it asks, rhetorically, “what is there that she has accomplished in her life — that would 

lead you to believe that she should become the most powerful person in the country?” (id. at 69); 

and it says that she lacks “the legislative gravitas and qualifications enough to elect her 

[P]resident of the [U]nited [S]tates.” (Id. at 36.) Each of these statements, and many others 

throughout the film, constitute “tak[ing] a position on a candidate’s character, qualifications, or 

 

12 Although Plaintiff appears to argue (Pl.’s Second P.I. Mem. at 7) that only “by the FEC” 

are these characteristics considered “indicia of express advocacy,” the phrase “indicia of express 

advocacy” is taken directly from the very sentence in WRTL in which the characteristics are 

listed. WRTL, 127 S. Ct. at 2667. 

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fitness for office,” and plaintiff’s movie therefore fails the “indicia of express advocacy” portion 

of the WRTL test. 

Furthermore, Hillary: The Movie fails the remainder of the test because the film does not 

“focus on a legislative issue,” much less “take a position on the issue, exhort the public to adopt 

that position, and urge the public to contact public officials with respect to the matter.” The only 

focuses of the film are Senator Clinton’s fitness for office and her actions in relation to certain 

controversies during Bill Clinton’s presidency. (See, e.g., Am. Compl. Exh. 2 at 9-17 

(discussing “travelgate” controversy); id. at 18-22 (discussing use of private investigators).) 

Contrary to plaintiff’s conclusory assertion (Pl.’s Second P.I. Mem. at 5), these criticisms are not 

“issue advocacy” as WRTL used that term. See WRTL, 127 S. Ct. at 2667 (describing “genuine 

issue ad[s]”). In fact, despite labeling the movie as issue advocacy, plaintiff neglects to explain 

what issues are discussed, other than admitting that the movie discusses Senator Clinton’s 

candidacy and takes a position on her fitness for office. The only advocacy in plaintiff’s film is 

its opposition to the election of Senator Clinton to the presidency.13

Thus, because Hillary: The Movie is nothing but an extensive critique of Senator 

Clinton’s “character, qualifications, and fitness for office,” the film is, in the words and analysis 

 

13 Plaintiff’s film is in many ways more clearly the functional equivalent of express 

advocacy than even the “Yellowtail ad,” which the McConnell Court described as a “striking 

example” of purported issue speech that was “clearly intended to influence the election.” 

McConnell, 540 U.S. at 193-94 & n.78. The Yellowtail ad consisted of a series of statements 

accusing candidate Bill Yellowtail of physically abusing his wife, being a convicted felon, and 

refusing to make child support payments; the ad then concluded by asking viewers to call Bill 

Yellowtail and “[t]ell him to support family values.” Id. As the Court noted, “[t]he notion that 

this advertisement was designed purely to discuss the issue of family values strains credulity.” 

Id.; see also 72 Fed. Reg. at 72,909 (listing Yellowtail ad as example of EC not meeting criteria 

in 11 C.F.R. § 114.15). Yet the Yellowtail ad, in its final sentence, actually contains 

comparatively more issue advocacy than does Hillary: The Movie, which barely mentions any 

legislative issues despite its feature length and urges viewers to take no action other than 

effectively calling for a vote against Senator Clinton. 

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of WRTL itself, susceptible of no reasonable interpretation other than as an appeal to vote against 

her. It is, in short, the functional equivalent of express advocacy, to which the EC funding 

restrictions may constitutionally be applied. 

C. The Disclosure Requirements Are Constitutional As Applied 

To Hillary: The Movie 

 Plaintiff’s arguments regarding the constitutionality of the EC disclosure provisions as 

applied to Hillary: The Movie are effectively identical to the arguments plaintiff raised in its first 

preliminary injunction motion. In short, plaintiff misreads Buckley v. Valeo, 424 U.S. 1 (1976), 

and WRTL as holding that any “regulation” of speech that is not “unambiguously campaign 

related” is unconstitutional. (See Pl.’s Second P.I. Mot. at 3-5.) As discussed at length in the 

Commission’s first opposition memorandum, however, plaintiff’s argument both lacks any basis 

in Buckley itself and is contrary to a host of Supreme Court precedent upholding disclosure 

requirements in the context of non-campaign-related, “pure” issue speech. (Def.’s First P.I. Opp. 

at Part IV.B.) Under this precedent, BCRA’s disclosure requirements are constitutional as to all 

ECs because the requirements substantially relate to the government’s important interests in 

(1) providing information to the general public regarding those who are expending funds to 

influence government activity, and (2) gathering the information necessary to enforce BCRA’s 

funding restrictions. (Id. at Part IV.C.) The disclosure requirements also impose minimal, if 

any, constitutional burden on plaintiff, who is neither prohibited from speaking nor subject to 

“threats, harassment, and reprisals.” (Id. at Part IV.D.) For all of these reasons, even assuming 

that the speech to be regulated were, as plaintiff claims, “issue advocacy” (Pl.’s Second Mot. 

at 5), the EC disclosure requirements would be constitutional. And because plaintiff’s movie is 

not actually “issue advocacy,” but rather, as noted previously, the functional equivalent of 

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express advocacy, see supra Part III.B, the disclosure requirements are all the more 

constitutionally permissible as applied here. 

D. Plaintiff’s Motion For A Preliminary Injunction Regarding The “Questions” 

Ad Is Moot 

Plaintiff argues that its thirty-second ad entitled “Questions” is exempt from the corporate 

EC funding restriction under WRTL, and plaintiff accordingly seeks a preliminary injunction 

against enforcement of the restriction as to this ad. The Commission agrees with plaintiff that 

“Questions” is a WRTL ad exempt from the funding restriction pursuant to 11 C.F.R. § 114.15(c). 

This analysis was slightly more complicated than it was for plaintiff’s “Wait” and “Pants” ads 

because, while the ten-second ads qualify for the safe-harbor of 11 C.F.R. § 114.15(b) by 

omitting any indicia of express advocacy and promoting a commercial transaction, “Questions” 

arguably addresses a candidate’s “character, qualifications, [and] fitness for office.” 11 C.F.R. 

§ 114.15(b). Thus, the safe harbor provision may not apply to “Questions,” but it is, “on 

balance,” susceptible of a reasonable interpretation as a commercial advertisement for Hillary: 

The Movie, rather than solely as an appeal to vote against Senator Clinton. 11 C.F.R. 

§ 114.15(c). Accordingly, “Questions” is exempt from the funding restriction of 2 U.S.C. 

§ 441b(a),(b)(2), and plaintiff’s motion for a preliminary injunction against enforcement of the 

corporate funding restriction as to the ad is therefore moot. 

IV. PLAINTIFF FAILS TO DEMONSTRATE IRREPARABLE INJURY 

 As with Citizens United’s first preliminary injunction motion, plaintiff fails to meet its 

burden of demonstrating that it will suffer irreparable harm without the requested temporary 

relief. As we explained (Def.’s First P.I. Opp. at 31-32), plaintiff must show that its alleged 

injury is “both certain and great,” “actual and not theoretical,” imminent, Wisconsin Gas Co. v. 

FERC, 758 F.2d 669, 674 (D.C. Cir. 1985), and “beyond remediation,” Chaplaincy of Full 

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Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). In addition, where the effect 

of the injunction would be to alter the status quo rather than maintain the relative positions of the 

parties, courts require “the movant to meet an even higher standard.” City of Moundridge v. 

Exxon Mobil Corp., 429 F. Supp. 2d 117, 127 (D.D.C. 2006). With respect to its new claims, 

plaintiff fails to meet its burden for the reasons pointed out in the Commission’s earlier 

opposition, and the Commission incorporates those arguments herein. Plaintiff’s new claims 

also fail in additional ways to establish irreparable harm. 

A. Plaintiff’s Delay in Moving for a Preliminary Injunction Indicates an 

Absence of Irreparable Harm 

Despite plaintiff’s planning for at least one year to distribute its movie during the 

presidential primary season, plaintiff waited until now to bring its new claims regarding its 

movie and a facial challenge to the EC financing provisions. As we have shown (Def.’s First P.I. 

Opp. at 37), such delay indicates an absence of the irreparable harm required to support the 

issuance of a preliminary injunction. See also City of Moundridge, 429 F. Supp. 2d at 128. 

Video-on-demand distribution of movies has been a common practice since well before the last 

year and is apparently just one of the many ways that plaintiff “intends to market Hillary in 

theaters, broadcasts, [and] on DVDs” (Pl.’s Second P.I. Mem. at 5). Accordingly, Plaintiff’s 

purportedly new opportunity to broadcast its movie through video-on-demand (see Am. Compl. 

¶ 28) was clearly foreseeable as part of its general distribution plans and does not support the 

“drastic” remedy of a preliminary injunction. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). 

Similarly, with respect to plaintiff’s new facial challenge, WRTL was issued 

approximately six months before plaintiff sought a preliminary injunction. Had plaintiff indeed 

been somehow chilled by the language of the Court’s decision, it could have filed its case 

months ago and had its claim adjudicated by this Court in advance of the election without having 

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to invoke the extraordinary preliminary injunction procedures. Plaintiff’s “undue delay” 

demonstrates that the alleged harm is not of “such imminence that there is a clear and present 

need for equitable relief.” Scott-Blanton v. Universal City Studios Prods. LLLP, 495 F. Supp. 2d 

74, 80 (D.D.C. 2007) (internal quotations omitted); see also id. (“[D]elay . . . tends to indicate at 

least a reduced need for such drastic, speedy action.”) (quoting Citibank, N.A. v. Citytrust, 

756 F.2d 273, 276 (2d Cir. 1985)); 11A Charles A. Wright & Arthur R. Miller, Federal Practice 

and Procedure § 2948.1, 156 & n.12 (2007) (“A long delay by plaintiff after learning of the 

threatened harm may be taken as an indication that the harm would not be serious enough to 

justify a preliminary injunction.”). 

B. Plaintiff Fails to Show Irreparable Harm Regarding the Application of the 

EC Financing Restrictions to Hillary 

To obtain a preliminary injunction, “[a] litigant must do more than merely allege the 

violation of First Amendment rights” because “the finding of irreparable injury cannot 

meaningfully be rested on a mere contention of a litigant.” Wagner v. Taylor, 836 F.2d 566, 576 

(D.C. Cir. 1987). Instead, “in instances where a plaintiff alleges injury from a rule or regulation 

that may only potentially affect speech, the plaintiff must establish a causal link between the 

injunction sought and the alleged injury, that is, the plaintiff must demonstrate that the injunction 

will prevent the feared deprivation of free speech rights.” Chaplaincy of Full Gospel Churches, 

454 F.3d at 297 (internal quotation omitted). Here, plaintiff’s allegation that the application of 

the EC financing restriction to the purchase of on-demand video access for its campaign 

advocacy would cause irreparable injury is unsupported. 

In its verified complaint — the only testimony plaintiff has provided — plaintiff alleges 

without elaboration that “it will not proceed with its activities as planned” absent an injunction 

and “will suffer irreparable harm.” (Am. Compl. ¶ 31.) That bare allegation is insufficient to 

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establish that plaintiff cannot avoid being harmed irreparably while the litigation proceeds. 

Plaintiff submits no evidence, for example, explaining how the harm will be irreparable if it 

distributes the identical motion picture in theaters and through DVD sales — i.e., through the 

non-broadcast media that purportedly were the only methods of distributions it had intended to 

use until recently. (Pl.’s Second P.I. Mem. at 5.) 

Setting aside these nonbroadcast means of distribution, plaintiff also presents no facts 

detailing why it could not temporarily finance the cable dissemination of Hillary through its 

separate segregated fund or political committee (“PAC”). As of November 30, plaintiff had 

raised almost $2 million last year for its PAC and retained a little over $1 million in cash on hand 

in that account. Citizens United Political Victory Fund, Report of Receipts and Disbursements, 

at 2 (Dec. 20, 2007), http://images.nictusa.com/cgi-bin/fecgifpdf/?_27658+27991053362.pdf. 

Plaintiff submits no evidence about how much it plans to pay for on-demand distribution of 

Hillary, but appears to be able to finance that portion of its distribution through the corporation’s 

PAC. Plaintiff offers no reason why it could not do so during the pendency of this action; should 

its constitutional challenge succeed, it could then seek permission to reimburse its PAC with 

general treasury funds at the conclusion of the litigation. The D.C. Circuit noted the possibility 

of a similar option in denying an application for preliminary injunction in NTEU v. United 

States, 927 F.2d 1253, 1256 (D.C. Cir. 1991). In that case, federal employees sought to 

preliminarily enjoin the operation of a statute prohibiting their receipt of honoraria, citing their 

“First Amendment rights to make appearances, deliver speeches, and write articles for 

compensation.” Id. at 1253. Part of the reason there was no irreparable harm, the D.C. Circuit 

found, was that the employees could have put their speaking fees into escrow during the 

pendency of the litigation. Id. at 1256. Plaintiff could create a similar arrangement here by 

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using PAC funds only temporarily. That option indicates that plaintiff has failed to establish that 

it will be irreparably harmed absent preliminary relief.14 

C. Plaintiff’s Bare Allegations of Chill Regarding Its Facial Challenge to the EC 

Financing Provisions Are Insufficient to Demonstrate Irreparable Harm 

As explained supra Part III.A, McConnell has already upheld the EC financing restriction 

on its face, and WRTL did not disturb that holding. Nevertheless, plaintiff now asks for the 

extraordinary remedy of a preliminary injunction prohibiting all applications of this financing 

provision. Although this request should be denied because plaintiff is unlikely to prevail on the 

merits of this claim, the request should equally be denied because such relief would far exceed 

anything necessary to provide any interim relief to which plaintiff could conceivably be entitled. 

All injunctions “must be narrowly tailored to remedy the specific harm shown.” Neb. Health & 

Human Servs. v. HHS, 435 F.3d 326, 330 (D.C. Cir. 2006) (quoting Aviation Consumer Action 

Proj. v. Washburn, 535 F.2d 101, 108 (D.C. Cir. 1976)). Thus, even if the Court were to 

conclude that plaintiff had clearly established irreparable harm as to some of plaintiff’s particular 

conduct, any injunction must be circumscribed to address that particular harm and should not 

completely prohibit operation of the EC financing provision. See Va. Soc’y for Human Life, Inc. 

v. FEC, 263 F.3d 379, 393 (4th Cir. 2001) (finding nationwide injunction broader than necessary 

and an abuse of discretion). 

 

14 Plaintiff contends (Pl.’s Second P.I. Mem. at 13) that the Court need not consider the 

PAC alternative because the Supreme Court in WRTL did not find the PAC alternative a 

constitutionally sufficient outlet for corporate speech. The portion of WRTL to which plaintiff 

refers, however, did not refer to the preliminary injunction context and explicitly did not apply to 

express advocacy and its functional equivalent. 127 S. Ct. at 2671 n.9; see also Wisconsin Right 

to Life, Inc. v. FEC, 542 U.S. 1305, 1306 (2004) (Rehnquist, C.J., in chambers) (denying 

injunction barring enforcement of BCRA’s EC financing restrictions pending appeal). As we 

have shown, see supra Part III.B, Hillary is the functional equivalent of express advocacy. 

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Moreover, plaintiff’s facial challenge to the EC financing provision also relies 

exclusively on bare allegations of First Amendment chill. Plaintiff’s only attempt at submitting 

evidence of chill is the contention in the complaint — verified by plaintiff’s president — that a 

statement in a Commission preliminary injunction brief declining to take an unnecessary position 

on one of plaintiff’s ads has prevented plaintiff from airing that ad. (Am. Compl. ¶ 32.) 

Plaintiff’s other contention — made by plaintiff’s counsel in a brief and unsupported by any 

evidence — is that the incorporation of the language of the WRTL decision into the 

Commission’s regulations has somehow created confusion about whether Hillary is the 

functional equivalent of express advocacy. (See Pl.’s Second P.I. Mem. at 7.) As we have 

shown, plaintiff is not likely to succeed on the basis of either of these contentions. See supra

Part III.A.3. Plaintiff’s bare allegations of its own confusion over implementation of the WRTL

opinion are also woefully inadequate to establish irreparable harm to itself, let alone to all 

entities who may be regulated by the EC financing restriction. Plaintiff must establish both the 

“existence” and the “imminence of a First Amendment violation.” Wagner, 836 F.2d at 576 

n.76. Plaintiff must carry its burden of persuasion “by a clear showing.” Mazurek, 520 U.S. 

at 972 (internal quotation marks omitted). Plaintiff’s allegations fall far short of demonstrating 

that all applications of the EC financing restrictions must be enjoined to avert irreparable harm 

that plaintiff alone has allegedly suffered. 

D. Plaintiff Fails to Demonstrate That Disclosure Related to Hillary Would 

Lead to Irreparable Harm 

Plaintiff fails to demonstrate irreparable injury regarding the EC disclosure provisions as 

applied to Hillary: The Movie for the same reasons that it failed to demonstrate irreparable injury 

from disclosure related to its ads. (See Def.’s First P.I. Opp. at Part V.) Plaintiff once again 

presents no evidence of a “reasonable probability” of “threats, harassment, and reprisals” as a 

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result of disclosure, Buckley, 424 U.S. at 69-74, 82 n.109, let alone the certain, immediate, and 

irremediable injury required to support a preliminary injunction, Wisconsin Gas, 758 F.2d at 674. 

In fact, one of the organizational donors to plaintiff for the Hillary project has not only boasted 

to the press of its involvement in funding the movie, it is receiving screen credit on the movie as 

an executive producer. See Rick Reiff, Lincoln Club Aims for Hillary, Orange County Bus. J., 

Aug. 13, 2007, at 3, 2007 WLNR 17661739 (Lincoln Club pledged to pay “a low-six figure 

amount” to fund Hillary and is “getting a screen credit”); Credits, Hillary: The Movie, 

http://www.hillarythemovie.com/credits.html (crediting Lincoln Club of Orange County as 

“Executive Producer”). So at the same time that plaintiff is arguing to this Court that to reveal 

publicly the donors who have chosen to help finance Hillary: The Movie would be 

unconstitutionally injurious, plaintiff is publicizing one of those donors itself in the very 

broadcast at issue. Thus, the “injury” that plaintiff alleges would result from association with the 

movie is actually seen as a benefit to at least one organization who has publicized its connection 

with Citizens United and Hillary. Plaintiff’s alleged injury from disclosure is therefore “highly 

speculative” and unlikely. Herschaft v. New York City Campaign Fin. Bd., 139 F. Supp. 2d 282, 

285 (E.D.N.Y. 2001). The D.C. Circuit “has set a high standard for irreparable injury” and 

plaintiff plainly fails to meet it. Chaplaincy of Full Gospel Churches, 454 F.3d at 297. 

V. THE RELIEF PLAINTIFF REQUESTS WOULD NOT BE IN THE PUBLIC 

INTEREST AND WOULD HARM THE COMMISSION

As we have explained, there is a strong public interest in enforcement of Acts of 

Congress such as BCRA, and an injunction proscribing its enforcement would harm both the 

public and the Commission. (See Def.’s First P.I. Opp. at Part VI.) Plaintiff’s new proposed 

injunction would not just deprive viewers of information about who is airing and paying to 

finance advertisements that Congress mandated be disclosed, it would permit widespread 

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corporate and union financing of television ads and ‘infomercials’ that are the functional 

equivalent of express advocacy, including Hillary: The Movie. Such a result would return the 

nation to the condition that Congress sought to change when it “found that corporations and 

union used soft money to finance a virtual torrent of televised election-related ads during the 

periods immediately preceding federal elections.” McConnell, 540 U.S. at 207. As the Supreme 

Court stated in the similar context of a requested injunction pending appeal during Wisconsin 

Right to Life’s as-applied challenge to BCRA’s EC financing restrictions, “barring the 

enforcement of an Act of Congress would be an extraordinary remedy, particularly when this 

Court recently held [that Act] facially constitutional.” Wisconsin Right to Life, Inc., 542 U.S. at 

1306 (citing McConnell, 540 U.S. at 189-210). Plaintiff has not met its burden of clearly 

establishing that its proposed preliminary injunction would serve the public interest and not 

cause harm to the Commission. 

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25

CONCLUSION

 For the foregoing reasons, the Commission respectfully requests that the Court deny 

plaintiff’s second motion for preliminary injunction. 

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: January 8, 2008 (202) 694-1650 

 

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