UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS UNITED, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civ. No. 07-2240 (RCL) 

 ) 

FEDERAL ELECTION COMMISSION, ) OPPOSITION TO 

 ) PRELIMINARY INJUNCTION

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM 

IN OPPOSITION TO PLAINTIFF’S 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 

Acting Assistant General Counsel 

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

Attorney 

COUNSEL FOR DEFENDANT 

December 20, 2007 FEDERAL ELECTION COMMISSION 

 

Case 1:07-cv-02240-RCL Document 18 Filed 12/20/2007 Page 1 of 50
TABLE OF CONTENTS 

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

 A. The Federal Election Commission...........................................................................1 

 B. Citizens United.........................................................................................................1 

 C. Hillary: The Movie..................................................................................................2 

 D. Plaintiff’s Planned Advertising Campaign ..............................................................3 

II. STATUTORY AND REGULATORY PROVISIONS .......................................................4 

ARGUMENT ..................................................................................................................................5 

III. A PRELIMINARY INJUNCTION IS AN EXTRAORDINARY REMEDY 

THAT REQUIRES THE PLAINTIFF TO MEET A HEAVY BURDEN..........................5 

IV. PLAINTIFF CANNOT DEMONSTRATE A SUBSTANTIAL 

LIKELIHOOD OF SUCCESS ON THE MERITS .............................................................7 

A. The Disclosure Requirements Are Constitutional On Their Face ...........................7 

B. The Disclosure Requirements Are Subject To Intermediate Scrutiny...................11 

C. Disclosure Regarding Electioneering Communications 

Furthers Important Government Interests..............................................................16 

1. Providing Information To The Public........................................................17 

2. Facilitating Enforcement Of Funding Regulations....................................20 

D. Plaintiff Demonstrates No Constitutional Burden Arising 

From The Disclosure Provisions............................................................................23 

1. Plaintiff Presents No Evidence That Its Donors Will Suffer Reprisals .....23 

2. Plaintiff Presents No Evidence That The Disclosure Requirements 

Will Chill Its Speech..................................................................................26 

3. The Disclosure Requirements Do Not “Mislead The Public” ...................28 

4. Administrative Burdens Do Not Infringe On 

Plaintiff’s Constitutional Rights ................................................................30 

E. The Important Government Interests In Disclosure Outweigh 

All Of Plaintiff’s Alleged Constitutional Burdens.................................................31 

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ii

V. PLAINTIFF FAILS TO DEMONSTRATE IRREPARABLE INJURY...........................31 

A. Plaintiff’s Alleged Injuries Are Neither Actual Nor Certain.................................32 

B. Plaintiff Faces No Imminent Injury .......................................................................34 

 C. None Of Plaintiff’s Alleged Harms Is Beyond Remediation.................................36 

 D. The Precedent That Plaintiff Relies Upon In Support Of Its 

Claim Of Irreparable Harm Is Inapposite ..............................................................37 

VI. THE RELIEF PLAINTIFF REQUESTS WOULD HARM THE COMMISSION 

AND UNDERCUT THE PUBLIC INTEREST IN DISCLOSURE .................................39 

CONCLUSION..............................................................................................................................42 

Case 1:07-cv-02240-RCL Document 18 Filed 12/20/2007 Page 3 of 50
TABLE OF AUTHORITIES 

Cases 

Adarand Constr., Inc. v. Pena, 515 U.S. 200 (1995).....................................................................12 

Adventure Commc’ns, Inc. v. Ky. Registry of Election Fin., 191 F.3d 429 (4th Cir. 1999) ....21, 30 

Alaska Right To Life Comm. v. Miles, 441 F.3d 773 (9th Cir. 2006) .......................... 11, 20, 22-24 

Am. Civil Liberties Union of Nev. v. Heller, 378 F.3d 979 (9th Cir. 2004)...................................27 

Am. Civil Liberties Union of N.J. v. N.J. Election Law Enforcement Comm’n, 

509 F. Supp. 1123 (D.N.J. 1981) .......................................................................................19 

Bowen v. Kendrick, 483 U.S. 1304 (1987) ......................................................................................6 

Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87 (1982).......................................24 

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

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999).......................11, 15, 17, 27 

Calif. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir. 2003).......................................18 

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980)..........16, 20 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006)............31, 34, 36 

Christian Civic League of Maine, Inc. v. FEC, 433 F. Supp. 2d 81 (D.D.C. 2006) .................7, 42 

Christian Knights of the Ku Klux Klan Invisible Empire v. District of Columbia, 

919 F.2d 148, 149-150 (D.C. Cir. 1990)............................................................................38 

CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738 (D.C. Cir. 1995)..............5, 39, 41 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) ............................................ 12-14 

Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 

236 F.3d 1174, 1197 (10th Cir. 2000) .........................................................................21, 27 

Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004) ...........................................................................6 

Colo. Right To Life Comm., Inc. v. Davidson, 395 F. Supp. 2d 1001......................................11, 24 

Comm’n on Indep. Coll. & Univ. v. N.Y. Temp. State Comm’n on Regulation 

 of Lobbying, 534 F. Supp. 489 (N.D.N.Y. 1982)..........................................................19

Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006) ...................................11 

iii

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Daggett v. Comm’n on Gov’t Ethics & Election Practices, 205 F.3d 445 (1st Cir. 2000)............21 

Davis v. FEC, 501 F. Supp. 2d 22 (D.D.C. 2007) .........................................................................30 

Elrod v. Burns, 427 U.S. 347 (1976) ....................................................................................... 37-38 

FEC v. GOPAC, Inc., 897 F. Supp. 615 (D.D.C. 1995) ................................................................32 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) ...........................................12-14, 21-22 

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

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).............................................. 13-15, 18 

Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457 (11th Cir. 1996) .............................19 

FTC v. Standard Oil Co. of Calif., 449 U.S. 232 (1980) ...............................................................36 

Gonannies, Inc. v. Goupair.com, Inc., 464 F. Supp. 2d 603 (N.D. Tex. 2006).............................37 

Herschaft v. New York City Campaign Fin. Bd., 127 F. Supp. 2d 164 (E.D.N.Y. 2000)..............11 

Herschaft v. New York City Campaign Fin. Bd., 139 F. Supp. 2d 282 (E.D.N.Y. 2001)..............33 

Hicks v. Bush, 397 F. Supp. 2d 36 (D.D.C. 2005) .........................................................................39 

Hohe v. Casey, 868 F.2d 69 (3d Cir. 1989) ...................................................................................38 

Homans v. Albuquerque, 366 F.3d 900 (10th Cir. 2004)...............................................................12 

In re Grand Jury Proceedings, 776 F.2d 1099 (2d Cir. 1985) ......................................................24 

Jackson v. Leake, 476 F. Supp. 2d 515 (E.D.N.C. 2006) ........................................................11, 21 

Jones v. Unknown Agents of FEC, 613 F.2d 864 (D.C. Cir. 1979) .........................................11, 24 

Kaplan v. Bd. of Educ., 759 F.2d 256 (2d Cir. 1985) ....................................................................34 

Kimbell v. Hooper, 665 A.2d 44 (Vt. 1995) ..................................................................................19 

Majors v. Abell, 361 F.3d 349 (7th Cir. 2004)...............................................................................27 

Mariani v. United States, 212 F.3d 761 (3d Cir. 2000) .................................................................24 

Mazurek v. Armstrong, 520 U.S. 968 (1997)...................................................................................6 

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

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003).....................................................9, 27, 41 

iv

Case 1:07-cv-02240-RCL Document 18 Filed 12/20/2007 Page 5 of 50
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)...........................................................18 

Meese v. Keane, 481 U.S. 465 (1987)............................................................................................29 

Minn. State Ethical Practices Bd. v. Nat’l Rifle Ass’n of Am., 

761 F.2d 509 (8th Cir. 1985) .............................................................................................19 

NAACP v. Alabama, 357 U.S. 449 (1958).....................................................................................24 

Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104 (2d Cir. 2001).............................................. 27-28 

New Motor Vehicle Bd. of Calif. v. Orrin W. Fox Co., 434 U.S. 1345 (1977)..............................42 

NTEU v. United States, 927 F.2d 1253 (D.C. Cir. 1991).........................................................32, 38 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996)..................................................................................35 

Piscottano v. Murphy, 317 F.Supp.2d 97 (D. Conn. 2004) ...........................................................38 

Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1 (1974)..........................................36 

R.I. Affiliate Am. Civil Liberties Union, Inc. v. Begin, 431 F. Supp. 2d 227 (D.R.I. 2006) ....13, 18 

Rodriguez v. DeBuono, 175 F.3d 227 (2nd Cir. 1999) ..................................................................37 

Scott-Blanton v. Universal City Studios Prods. LLLP, 

495 F. Supp. 2d 74 (D.D.C. 2007).....................................................................................37 

Sears Roebuck & Co. v. NLRB, 473 F.2d 91 (D.C. Cir. 1972)......................................................36 

Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440 (2004).....................................................10 

Time Warner Cable of New York City v. Bloomberg L.P., 118 F.3d 917 (2d Cir. 1997) ..............38 

United States v. Harriss, 347 U.S. 612 (1954) ........................................................................18, 27 

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981)............................................................................6 

Veitch v. Danzig, 135 F. Supp. 2d 32 (D.D.C. 2001) ....................................................................31 

Virginia v. American Bookseller’s Ass’n Inc., 484 U.S. 383 (1988) .............................................38 

Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987)...................................................................32, 38 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323 (1984) ......................................6, 39 

Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985)......................................31, 34, 36, 39 

Wisconsin Right to Life, Inc. v. FEC, 542 U.S. 1305 (2004) ................................................ 6-7, 39 

v

Case 1:07-cv-02240-RCL Document 18 Filed 12/20/2007 Page 6 of 50
Wisconsin Right to Life, Inc. v. FEC, Civ. No. 04-1260, 2006 WL 2666017 

(D.D.C. Sept. 14, 2006) .....................................................................................7, 35, 39, 42 

Wisconsin Right to Life, Inc. v. FEC, Civ. No. 04-1260, 2004 WL 3622736 

(D.D.C. Aug. 17, 2004)......................................................................................................38 

Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 

471 U.S. 626 (1985)...........................................................................................................20 

Statutes and Regulations 

2 U.S.C. § 431(11) ...........................................................................................................................4 

2 U.S.C. § 434(f)(2) .........................................................................................................................4 

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

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

2 U.S.C. § 437c(b)(1).................................................................................................................1, 35 

2 U.S.C. § 437d(a)(7).......................................................................................................................1 

2 U.S.C. § 437d(a)(8).......................................................................................................................1 

2 U.S.C. § 437f ................................................................................................................................1 

2 U.S.C. § 437g(a) .........................................................................................................................35 

2 U.S.C. § 438(a)(8).........................................................................................................................1 

2 U.S.C. § 438(d) .............................................................................................................................1 

2 U.S.C. § 441b(b) .........................................................................................................................10 

2 U.S.C. § 441b(b)(2) .....................................................................................................................8 

2 U.S.C. § 441d................................................................................................................................4 

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

2 U.S.C. § 441d(d)(2) ......................................................................................................................5 

28 U.S.C. § 516..............................................................................................................................35 

11 C.F.R. § 104.20...........................................................................................................................4 

11 C.F.R. § 104.20(c).......................................................................................................................4 

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vii

11 C.F.R. § 104.20(c)(7)..................................................................................................................5 

11 C.F.R. § 104.20(c)(7)(ii).......................................................................................................5, 34 

11 C.F.R. § 104.20(c)(9)............................................................................................................5, 34 

11 C.F.R. §110.11............................................................................................................................4 

11 C.F.R. § 110.11(b)(3)..................................................................................................................5 

11 C.F.R. § 110.11(c)(4)..................................................................................................................5 

11 C.F.R. § 110.11(c)(4)(iii)(A) ....................................................................................................28 

Bipartisan Campaign Reform Act (“BCRA”), Pub. L. 107-155............................................ passim

Federal Election Campaign Act of 1971 (“FECA”), 2 U.S.C. §§ 431-455 ........................... passim

Miscellaneous 

11A Wright & Miller, Federal Practice and Procedure § 2948.1 (2007) ....................................37 

FEC Advisory Opinion 1990-13....................................................................................................26 

FEC Advisory Opinion 1996-46....................................................................................................26 

FEC Advisory Opinion 2003-02....................................................................................................26 

LCvR 65.1(c) .................................................................................................................................25 

Case 1:07-cv-02240-RCL Document 18 Filed 12/20/2007 Page 8 of 50
 Defendant Federal Election Commission (“Commission”) files this memorandum of law 

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

denied because plaintiff has little likelihood of success on the merits of the case in light of the 

important government interests in requiring disclosure regarding electioneering communications 

(“ECs”). Plaintiff also fails to demonstrate any constitutional burden it faces as a result of the 

EC disclosure provisions, any irreparable harm that it will suffer in the absence of a preliminary 

injunction, or any public interest that would be furthered by an injunction. 

I. FACTUAL BACKGROUND 

A. The Federal Election Commission 

 The Commission is the independent agency of the United States government with 

exclusive jurisdiction over the administration, interpretation, and civil enforcement of the 

Federal Election Campaign Act of 1971, as amended (“the Act” or “FECA”), codified at 

2 U.S.C. §§ 431-455, and other statutes. The Commission is empowered to “formulate policy” 

with respect to the Act, 2 U.S.C. § 437c(b)(1); “to make, amend, and repeal such rules . . . as are 

necessary to carry out the provisions of [the] Act,” 2 U.S.C. §§ 437d(a)(8), 438(a)(8),(d); and to 

issue written advisory opinions concerning the application of the Act and Commission 

regulations to any specific proposed transaction or activity, 2 U.S.C. §§ 437d(a)(7), 437f. 

B. Citizens United 

 According to its Complaint, plaintiff Citizens United is a nonprofit membership 

corporation that is tax exempt under section 501(c)(4) of the Internal Revenue Code. (Compl. 

¶ 5.) Citizens United was founded in 1998 to “inform[] and educat[e] the public on conservative 

ideas and positions on issues.” (Id. ¶ 7.) Its current annual budget is approximately $12 million. 

(Id.) It has a number of related entities, including Citizens United Foundation, which is 

organized under section 501(c)(3) of the Internal Revenue Code; a separate segregated fund 

 

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(commonly referred to as a PAC) called the Citizens United Political Victory Fund; and two 

entities organized under section 527 of the Internal Revenue Code, The Presidential Coalition, 

LLC and 2007 Conservative Victory Committee. Id. ¶ 7; David N. Bossie, Looking Back at 

2007, Citizens United Blog, Dec. 4, 2007, http://www.citizensunited.org/blog/?entryid=2949601; 

The Presidential Coalition, LLC, Form 8871, June 30, 2005, 

http://forms.irs.gov/politicalOrgsSearch/search/Print.action?formId=16942&formType=E71; 

2007 Conservative Victory Committee, Form 8871, May 9, 2007, 

http://forms.irs.gov/politicalOrgsSearch/search/Print.action?formId=26221&formType=E71. 

C. Hillary: The Movie 

Plaintiff has planned since at least January 2007 on distributing a movie about Senator 

Clinton “in all of the early primary states.” Hannity & Colmes: Analysis With Dick Morris (Fox 

News television broadcast Jan. 22, 2007), 2007 WLNR 1299920 (quoting Dick Morris, a 

collaborator in the film, who also stated that “we’re going to really showcase the inaccuracies of 

everything that this woman has said”). On April 12, 2007, Mr. Morris explained that the film 

would “really give people the flavor and an understanding of why she should not be President.” 

Transcript: Dick Morris, Hillary’s Threat, Santa Barbara, Calif., Apr. 12, 2007, 

http://www.citizensunited.org/blog/?entryid=4563815. In June, plaintiff’s plans were to release 

the film “by the end of the year, just as the first primary elections are held in New Hampshire.” 

Paul Harris, Anti-Hillary Dirty Tricks War Hots Up, Hindu, June 18, 2007, 2007 WLNR 

13233887. Plaintiff is in part financing the film with funds donated for partisan political reasons. 

See, e.g., Rick Reiff, Lincoln Club Aims for Hillary, Orange County Bus. J., Aug. 13, 2007, at 3, 

2007 WLNR 17661739 (Orange County “support group” for the Republican Party pledged “a 

low-six figure amount” toward the “documentary”). 

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Plaintiff plans to release the movie “somewhere in the December 2007 to February 2008 

time-frame.” (Compl. ¶ 14.) Senator Clinton is a candidate for president and a number of states 

will hold primary elections or party caucuses in January. (Id. ¶ 17.) The movie “discusses her 

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

presidential bid,” including some statements by interviewees “on whether she would make a 

good president.” Id. See also Trailer, Hillary: The Movie, 

http://www.hillarythemovie.com/trailer.html. Plaintiff alleges that its movie about Senator 

Clinton is an “issue-advocacy film” and contends that the time periods leading up to both the 

primary and general elections next year 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.” (Compl. ¶ 20.) 

D. Plaintiff’s Planned Advertising Campaign 

On December 13, plaintiff filed a verified complaint and moved for a preliminary 

injunction regarding three advertisements that it alleges it wishes to air. (Compl. [Docket No. 1]; 

Pl.’s Mot. for Prelim. Inj. [Docket No. 5].) The audio of the first intended ad, a 10-second ad 

entitled “Wait,” is “If you thought you knew everything about Hillary Clinton . . . wait ’til you 

see the movie.” (Compl. Exh. 1.) The second ad, a ten-second ad entitled “Pants,” includes a 

narrator saying “First a kind word about Hillary Clinton,” Ann Coulter saying “She looks good 

in a pant suit,” and then a narrator saying “Now a movie about everything else.” (Id.) The third, 

a thirty-second ad entitled “Questions,” contains three quotations regarding Senator Clinton, 

including Ann Coulter saying “[A]t least with Bill Clinton he was just good time Charlie. 

Hillary’s got an agenda,” and Dick Morris saying “Hillary is the closest thing we have in 

America to a European socialist.” (Id.) All three ads contain images of Senator Clinton and, at 

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the end, the visuals “Hillary: The Movie” and “www.hillarythemovie.com” appear on the screen. 

(Id.) 

II. STATUTORY AND REGULATORY PROVISIONS 

 In 2002, Congress enacted the Bipartisan Campaign Reform Act (“BCRA”), Pub. L. 

107-155, which substantially amended FECA. Section 201 of BCRA defines an “electioneering 

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

identified federal candidate, (b) is made within sixty days before a general election or thirty days 

before a primary election in which that candidate is running, and (c) is targeted to that election’s 

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

Electioneering communications are subject to both reporting requirements, 2 U.S.C. 

§ 434(f)(2); 11 C.F.R. § 104.20, and disclaimer requirements, 2 U.S.C. § 441d; 11 C.F.R. 

§110.11.1

 The reporting requirements at issue in this case provide that any “person” (defined to 

include any corporation, labor organization, or other group, 2 U.S.C. § 431(11)) expending over 

$10,000 to produce or air an EC must file a statement with the Commission. 2 U.S.C. 

§ 434(f)(2). The statement must identify, in relevant part, the person making the EC 

disbursement, the amount and date of the disbursement, and, in the case of an EC made by a 

corporation “the name and address of each person who made a donation aggregating $1,000 or 

more to the corporation . . . for the purpose of furthering electioneering communications.” 

11 C.F.R. § 104.20(c).2

 However, if the disbursement is made out of a “segregated bank account 

 

1

 The Commission herein refers jointly to the reporting and disclaimer requirements as the 

“disclosure requirements.” (See Compl. ¶ 1.) 

2

 The Commission recently approved amendments to its EC reporting regulations to 

conform to the Supreme Court’s decision in FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 

2652 (2007), and to address the reporting requirements for corporations and labor organizations. 

See Electioneering Communications, 

http://www.fec.gov/law/cfr/ej_compilation/2007/notice_2007-26.pdf (approved Dec. 14, 2007, 

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established to pay for electioneering communications,” the corporation making the EC need only 

identify those individuals who contributed $1,000 or more to the account itself. 2 U.S.C. 

§ 434(f)(2)(E); 11 C.F.R. § 104.20(c)(7). 

The EC disclaimer provisions require that a televised EC include on the screen (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 EC must also include a statement that the entity funding the EC “is 

responsible for the content of this advertising” — this statement must be (1) made orally by a 

representative of the person making the EC, and (2) printed “for a period of at least 4 seconds” 

on at least four percent of the screen. 2 U.S.C. § 441d(d)(2); 11 C.F.R. § 110.11(c)(4). 

ARGUMENT

III. A PRELIMINARY INJUNCTION IS AN EXTRAORDINARY REMEDY THAT 

REQUIRES THE PLAINTIFF TO MEET A HEAVY BURDEN 

A party seeking a preliminary injunction bears a heavy burden to establish that it is 

entitled to such relief. To prevail, the movant must demonstrate: (1) a “substantial likelihood of 

success on the merits”; (2) that it would suffer irreparable harm if an injunction is not granted; 

(3) that an injunction would not cause substantial injury to other parties; and (4) that the public 

interest would be furthered by the injunction. CityFed Fin. Corp. v. Office of Thrift Supervision, 

58 F.3d 738, 746 (D.C. Cir. 1995). “A preliminary injunction is an extraordinary remedy that 

should be granted only when the party seeking the relief, by a clear showing, carries the burden 

 

publication in Federal Register pending). This memorandum refers to the revised provisions, 11 

C.F.R. § 104.20(c)(7)(ii),(c)(9), as those would govern plaintiff’s planned ECs. See id. at 1 

(providing that revised regulations will be effective on publication date). 

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of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004) (citing Mazurek v. 

Armstrong, 520 U.S. 968, 972 (1997)). 

In this case, Citizens United must shoulder a particularly heavy burden. First, “[t]he 

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

a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). 

Plaintiff, however, is attempting to change the status quo by seeking an exemption from the 

generally applicable BCRA disclosure requirements that otherwise govern all ECs. Second, as 

we explain below, eight Justices of the Supreme Court voted to uphold the constitutionality of 

BCRA’s disclosure requirements on their face. See infra Part IV.A (discussing McConnell v. 

FEC, 540 U.S. 93 (2003)). McConnell’s holding greatly strengthens “[t]he presumption of 

constitutionality which attaches to every Act of Congress.” Walters v. Nat’l Ass’n of Radiation 

Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in chambers). That presumption “‘is not 

merely a factor to be considered in evaluating success on the merits, but an equity to be 

considered in favor of ... [the government] in balancing hardships.’” Bowen v. Kendrick, 483 

U.S. 1304 (1987) (Rehnquist, C.J., in chambers) (quoting Walters, 468 U.S. at 1324). In fact, 

Chief Justice Rehnquist relied on this very presumption in denying an application to vacate a 

stay of judgment entered by the three-judge court that had held portions of BCRA 

unconstitutional in McConnell. McConnell, 02A989, 02A990, Slip Op. at 1 (May 23, 2003). 

More recently, the Supreme Court denied a plaintiff’s request for an injunction barring 

enforcement of BCRA’s EC financing restrictions pending appeal, explaining that “[a]n 

injunction pending appeal 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. v. FEC, 542 U.S. 1305, 1306 (2004) (Rehnquist, C.J., in chambers) 

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(citing McConnell, 540 U.S. at 189-210). In fact, in all three prior actions filed by Citizens 

United’s counsel to challenge the EC provisions, the plaintiff has requested and been denied a 

preliminary injunction against enforcement of the Act. See id.; Wisconsin Right to Life, Inc. v. 

FEC, Civ. No. 04-1260, 2006 WL 2666017 (D.D.C. Sept. 14, 2006); Christian Civic League of 

Maine, Inc. v. FEC, 433 F. Supp. 2d 81 (D.D.C. 2006). 

IV. PLAINTIFF CANNOT DEMONSTRATE A SUBSTANTIAL LIKELIHOOD OF 

SUCCESS ON THE MERITS 

A. The Disclosure Requirements Are Constitutional On Their Face 

 Immediately after BCRA was passed, Citizens United and other plaintiffs challenged the 

constitutionality of the same EC disclosure provisions that are at issue here, as well as BCRA’s 

prohibition on corporate financing of ECs. The Supreme Court rejected each of these challenges 

in McConnell, 540 U.S. at 196-99, 203-09, 230-31. Regarding the reporting requirements, the 

Court held that they are consistent with the First Amendment because “important state interests,” 

namely “providing the electorate with information, deterring actual corruption and avoiding any 

appearance thereof, and gathering the data necessary to enforce more substantive electioneering 

restrictions . . . amply support[ ] application of [the] disclosure requirements to the entire range 

of electioneering communications.” Id. at 196 (internal quotation marks omitted). The Court 

acknowledged that there may be limited instances in which the First Amendment burdens of 

disclosure might outweigh these government interests as to particular organizations, and the 

Court explained how the lower courts should decide such cases, but left resolution of them to 

future as-applied challenges. Id. at 197-99; see infra Part IV.D.1 (explaining why plaintiff does 

not meet McConnell’s requirements for as-applied challenges). Five Justices joined this opinion, 

and three additional Justices agreed that the reporting requirements were constitutional because 

they “substantially relate” to the informational interest cited by the majority. Id. at 321 (opinion 

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of Kennedy, J.). Regarding the disclaimer requirements, Chief Justice Rehnquist, writing for 

eight Justices, upheld the provisions as bearing “a sufficient relationship to the important 

governmental interest of ‘shed[ding] the light of publicity’ on campaign financing.” Id. at 231 

(quoting Buckley v. Valeo, 424 U.S. 1, 81 (1976)). Finally, the Court rejected a facial challenge 

to BCRA § 203, which prohibited corporations or labor unions from using general treasury funds 

to pay for electioneering communications, 2 U.S.C. § 441b(b)(2). Id. at 206. 

 Four years later, in FEC v. Wisconsin Right to Life, Inc., the Supreme Court again 

addressed BCRA’s EC provisions. The subject of that case, however, was not disclosure, but 

funding — specifically, it was an as-applied challenge to § 441b(b)(2)’s prohibition on corporate 

funding of ECs. In fact, the plaintiff in WRTL explicitly disavowed any challenge to the 

disclosure provisions. Wisconsin Right to Life, Inc. v. FEC, Civ. No. 04-1260, Verified Compl. 

for Declaratory and Injunctive Relief ¶ 36 (D.D.C. July 28, 2004) (“WRTL does not challenge 

the reporting and disclaimer requirements for electioneering communications, only the 

prohibition on using its corporate funds for its grass-roots lobbying advertisements.”).3

 The 

Court’s controlling opinion (written by Chief Justice Roberts and joined by Justice Alito) held 

that corporations may fund an EC unless the communication is the functional equivalent of 

express advocacy, which the Chief Justice defined as a communication that “is susceptible of no 

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

FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652, 2667 (2007) (“WRTL”). This holding 

 

3

 WRTL further informed the Court that “[b]ecause WRTL does not challenge the 

disclaimer and disclosure requirements, there will be no ads done under misleading names. 

There will continue to be full disclosure of all electioneering communications, both as to 

disclaimers and public reports. The whole system will be transparent. With all this information, 

it will then be up to the people to decide how to respond to the call for grassroots lobbying on a 

particular governmental issue.” Br. for Appellee, FEC v. Wisconsin Right to Life, Inc., S. Ct. 

Nos. 06-969, 06-970, at 49 (emphasis added). 

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thereby created two categories of communications that meet the statutory definition of an EC: 

(1) ECs that are the functional equivalent of express advocacy, which are subject to the corporate 

funding restriction; and (2) ECs that are susceptible of an interpretation other than as an appeal to 

vote for or against a specific candidate (hereinafter “WRTL ads”), which may be financed with 

the general treasury funds of corporations or unions. 

 Contrary to plaintiff’s contention, however, the Court did not hold that all WRTL ads are 

“issue speech”: The Chief Justice explicitly noted that the distinction between campaign and 

issue speech “dissolve[s] in practical application,” and held that funding limitations act to 

“suppress[ ]” speech susceptible of multiple interpretations, contrary to the First Amendment. 

Id. at 2669 (internal quotation marks omitted). WRTL did not decide — either explicitly or 

tacitly — the question of whether WRTL ads may constitutionally be subject to BCRA’s EC 

disclosure provisions, which, the Court had previously held, do not suppress speech. See

McConnell, 540 U.S. at 197-99, 201 (“[FECA’s] disclosure requirements are constitutional 

because they ‘d[o] not prevent anyone from speaking.’”) (quoting McConnell v. FEC, 251 F. 

Supp. 2d 176, 241 (D.D.C. 2003)). 

Although WRTL did not challenge any disclosure provisions, and although disclosure is 

not mentioned anywhere in the WRTL opinion, plaintiff now attempts to construe the decision as 

having addressed the issue and decided that all WRTL ads are exempt from all “regulation,” 

including both financing restrictions and disclosure requirements. (Pl.’s Mem. in Support of 

Preliminary Injunction Mot. (“Pl.’s Mem.”) at 21-22 & n.13.) Plaintiff’s argument must fail, for 

it misinterprets the meaning of the WRTL language on which it relies. The decision in that case 

turned, in part, on the Commission’s argument that the EC financing restriction was merely a 

funding regulation, not a speech prohibition. See Br. for Appellant FEC, FEC v. Wisconsin 

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Right to Life, Inc., S. Ct. Nos. 06-969, 06-970, at 7 (arguing that McConnell held financing 

restriction to be regulation rather than “complete ban”).4

 The Court rejected the Commission’s 

distinction, using the term “regulation” to make clear that the financing provision was 

unconstitutional as applied to certain ads even though it was not an outright prohibition. See

WRTL, 127 S. Ct. at 2671 n.9 (rejecting distinction). But the Court nowhere suggested that 

disclosure was also unconstitutional or that its use of the word “regulation” encompassed 

disclosure provisions of any kind. Indeed, if the Court had been using the word “regulation” as 

imagined by plaintiff, it was tacitly deciding an issue that was not presented in the case. It defies 

logic to believe that the Court would issue such a momentous ruling — striking down an act of 

Congress and significantly limiting McConnell — sub silentio. See Tenn. Student Assistance 

Corp. v. Hood, 541 U.S. 440, 449 n.4 (2004) (noting that Court is unlikely to overrule its own 

recent decisions sub silentio). Thus, there is no reasonable basis for plaintiff’s claim that the 

term “regulation,” as used in WRTL, includes disclosure.5

 In summary, McConnell upheld the EC disclosure provisions on their face, and nothing in 

WRTL stands to the contrary. It is true, as plaintiff contends, that the Court’s “rejection of [the] 

facial challenge to the requirement to disclose individual donors [did] not foreclose possible 

future challenges to particular applications of that requirement.” McConnell, 540 U.S. at 199. 

McConnell reiterated the burden of proof that a plaintiff must meet to succeed in such a 

 

4

 McConnell had explained that “[b]ecause corporations can still fund electioneering 

communications with PAC money [raised in a separate segregated fund, 2 U.S.C. § 441b(b)], it 

is ‘simply wrong’ to view the provision as a ‘complete ban’ on expression rather than a 

regulation.” 540 U.S. at 204 (citation omitted). 

5

 To the extent that plaintiff’s motion can be read to argue that the constitutional 

limitations on financing and disclosure provisions are necessarily coterminous — i.e., that WRTL

ads must be exempt from disclosure because they are exempt from funding restrictions — such 

an argument is plainly contrary to law. See infra Part IV.B (collecting cases in which courts 

have struck down financing restrictions but upheld disclosure provisions). 

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challenge, and noted that the parties — including Citizens United — had not presented enough 

specific evidence to meet that burden. See infra Part IV.D.1. Thus, Citizens United must show a 

substantial likelihood of success on its argument that it can now meet the as-applied burden 

defined in McConnell and earlier cases. For the reasons discussed below, plaintiff plainly cannot 

meet this burden. 

 B. The Disclosure Requirements Are Subject To Intermediate Scrutiny 

It is well established that First Amendment challenges to disclosure statutes are analyzed 

under an “exacting scrutiny” standard, which requires that the compelled disclosure bear a 

“substantial relation” to an important government interest. Buckley, 424 U.S. at 64, 66, 75; see 

also McConnell, 540 U.S. at 196, 231; Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 

182, 202 (1999) (“In [Buckley], we stated that ‘exacting scrutiny’ is necessary when compelled 

disclosure of campaign-related payments is at issue [and] upheld, as substantially related to 

important governmental interests, the recordkeeping, reporting, and disclosure provisions of 

[FECA] . . . .”); Alaska Right To Life Comm. v. Miles, 441 F.3d 773, 788 (9th Cir. 2006) 

(describing standard applied in McConnell).6

 As the Ninth Circuit has explained, McConnell

“did not apply ‘strict scrutiny’ or require a ‘compelling state interest.’ Rather, the Court upheld 

the disclosure requirements as supported merely by ‘important state interests.’” Alaska Right To 

Life, 441 F.3d at 788 (internal citations omitted). Thus, “exacting scrutiny,” as courts apply it to 

disclosure statutes, is identical to the constitutional standard more commonly known as 

 

6

 See also Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 663 (5th Cir. 2006); 

Jones v. Unknown Agents of FEC, 613 F.2d 864, 875 (D.C. Cir. 1979) (citing Buckley); Jackson 

v. Leake, 476 F. Supp. 2d 515, 525 (E.D.N.C. 2006) (citing Buckley and McConnell); Colo. Right 

To Life Comm., Inc. v. Davidson, 395 F. Supp. 2d 1001, 1015 (D. Colo. 2005) (citing Buckley); 

Herschaft v. New York City Campaign Fin. Bd., 127 F. Supp. 2d 164, 167 (E.D.N.Y. 2000) 

(“[T]he government’s interests must be ‘sufficiently important to outweigh the possibility of 

infringement’ and there must be a ‘relevant correlation’ or ‘substantial relation’ between the 

governmental interests and the information required to be disclosed.”) (quoting Buckley). 

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intermediate scrutiny. See Adarand Constr., Inc. v. Pena, 515 U.S. 200, 220 (1995) (noting that 

intermediate scrutiny standard requires statute to be “substantially related to the achievement of 

an important governmental objective”). 

Under this standard, the government need not demonstrate that the disclosure provision is 

the least restrictive means of furthering a government interest. Nevertheless, in the electoral 

context the Supreme Court has found it significant that disclosure provisions are considerably 

less restrictive than contribution or expenditure restrictions. See Buckley, 424 U.S. at 81-82 

(“[T]he disclosure requirement ... [is] a minimally restrictive method of furthering First 

Amendment values by opening the basic processes of our federal election system to public 

view.”); Homans v. Albuquerque, 366 F.3d 900, 907-08 (10th Cir. 2004) (“[Buckley] rejected the 

anti-corruption rationale in reviewing FECA’s campaign-expenditure limits, concluding that the 

interest in preventing corruption was served adequately in that case by . . . disclosure 

provisions.”). Thus, the Court has frequently upheld disclosure requirements even when striking 

down substantive restrictions on the funds to be disclosed. See, e.g., FEC v. Mass. Citizens for 

Life, Inc., 479 U.S. 238, 262 (1986) (“MCFL”) (striking down independent expenditure 

restrictions on certain non-profit organizations in part because “reporting obligations provide 

precisely the information necessary to monitor MCFL’s independent spending activity”); 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 298-99 (1981) (striking down 

contribution limits governing ballot initiative groups because “there is no risk that the Berkeley 

voters will be in doubt as to the identity of those whose money supports or opposes a given ballot 

measure since contributors must make their identities known under . . . the ordinance, which 

requires publication of lists of contributors in advance of the voting”); id. at 303 (“Berkeley need 

not impose a $250 ceiling on contributions to encourage disclosure so long as it vigorously 

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enforces its already stringent disclosure laws.”) (Blackmun, J., concurring in judgment); First 

Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 791-92 n.32 (1978) (striking down prohibition on 

corporate expenditures to support or oppose ballot initiatives but noting that “[i]dentification 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”); R.I. Affiliate Am. Civil 

Liberties Union, Inc. v. Begin, 431 F. Supp. 2d 227, 239 (D.R.I. 2006) (citing Berkeley and 

MCFL as cases in which Supreme Court found funding restrictions unnecessary in light of 

disclosure requirements). 

Citizens United does not argue that a different standard of review applies. Instead, 

plaintiff states that, “regardless of the level of scrutiny,” the first constitutional inquiry in the 

disclosure context must be whether the activity giving rise to the disclosure requirement is 

“unambiguously campaign related.” (Pl.’s Mem. at 20 (quoting Buckley, 424 U.S. at 80).) 

Plaintiff argues, in effect, that the First Amendment always prohibits the government from 

mandating disclosure regarding advertising — unless the speech unambiguously advocates the 

election or defeat of candidates. This assertion lacks any basis in law and misinterprets Buckley 

and its progeny. 

Plaintiff distorts Buckley by contending that the decision enshrined the phrase 

“unambiguously campaign related” as a stand-alone constitutional “test” or “requirement” (Pl.’s 

Mem. at 14) that all disclosure statutes must pass. On the contrary, this phrase was merely part 

of the Court’s explanation that its statutory construction of “expenditure” in one part of the Act’s 

disclosure provisions would resolve “serious problems of vagueness,” Buckley, 424 U.S. at 76 — 

a problem that the Court has explicitly noted does not arise in the context of BCRA’s EC 

definition. McConnell, 540 U.S. at 194 (“[W]e observe that [BCRA’s] definition of 

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‘electioneering communication’ raises none of the vagueness concerns that drove our analysis in 

Buckley.”). To the extent that Buckley caused any confusion on this point, the Court put the 

question to rest in McConnell, which, in upholding BCRA’s EC provisions, noted 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 191-92. Thus, Buckley’s interpretation of the term independent “expenditure” (when made by 

individuals or groups other than political committees) to mean spending that is “unambiguously 

related” to the campaign of a candidate, 424 U.S. at 80, has no bearing on the electioneering 

communication disclosure provisions; as the McConnell Court has explained, the definition of 

that term requires no narrowing construction to avoid vagueness. 

Plaintiff’s misinterpretation of Buckley is further demonstrated by the Supreme Court’s 

subsequent cases addressing disclosure. Indeed, plaintiff discusses (Pl.’s Mem. at 14-15 & n.6) 

several of these cases without ever mentioning the most salient fact about them: The Supreme 

Court, while striking down certain funding restrictions, upheld the disclosure requirements in 

every decision that plaintiff cites. First, in Bellotti, the Court struck down restrictions on 

corporate expenditures relating to ballot initiatives but upheld the disclosure requirements 

governing those expenditures. 435 U.S. at 791-92 n.32. Second, in Citizens Against Rent 

Control, the Court struck down limits on contributions to ballot-initiative groups but upheld the 

disclosure requirements for those contributions. 454 U.S. at 298-99. Third, in MCFL, the Court 

struck down limits on independent expenditures made by certain non-profit corporations, but it 

also held that the corporations could still be required to disclose those expenditures and the 

contributions received to help pay for them. 479 U.S. at 262; see also infra Part IV.C.2. 

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Moreover, in McConnell the Court upheld the disclosure requirements as “to the entire 

range of ‘electioneering communications.’” 540 U.S. at 196 (emphasis added). Because 

McConnell recognized that “the entire range” of ECs includes both express advocacy and nonexpress advocacy, id. at 207 (discussing inclusion of some “pure issue ads” within EC 

definition), the Court’s decision upholding the disclosure requirements necessarily means that it 

is constitutional to require disclosure for some advertising that is not express advocacy or 

“unambiguously campaign related.” See id. In sum, plaintiff’s proposition that the Constitution 

prohibits disclosure requirements that are not “unambiguously campaign related” is unsupported 

in the Supreme Court’s disclosure jurisprudence. 

Plaintiff’s interpretation of Buckley is belied still further by the fact that courts since 

Buckley have repeatedly employed intermediate scrutiny — with no application of any 

“unambiguously campaign related” requirement — in assessing disclosure statutes governing 

non-campaign, issue advocacy. Specifically, courts have applied this standard and upheld 

disclosure of advertising that supports or opposes ballot initiatives and referenda, which the 

Supreme Court has explicitly found to be issue advertising, not advocacy about candidate 

elections. See Buckley v. Am. Constitutional Law Found., 525 U.S. at 204 (applying exacting 

scrutiny and upholding requirement to disclose donations made to organizations to pay ballotinitiative petition circulators); Citizens Against Rent Control, 454 U.S. at 298-99; Bellotti, 435 

U.S. at 791-92 n.32. This is particularly noteworthy because, as discussed below, the Court has 

found that ballot-initiative advertising poses none of the corruption risks of campaign-related 

expenditures but may still be subject to disclosure requirements. See infra Part IV.C.1. Thus, 

because the Constitution has no “campaign related” requirement for mandatory disclosure 

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regarding “pure” issue speech, Citizens United’s argument that BCRA’s disclosure requirements 

cannot be applied constitutionally to plaintiff’s WRTL ads lacks merit. 

Finally, in addition to contending that its planned advertising is “issue advocacy,” (Pl.’s 

Mem. at 29) plaintiff also points out that the ads are actually commercial speech, i.e., advertising 

the sale of a product. (See, e.g., Pl.’s Mem. at 6 (“[The] Ads will promote showings of Hillary: 

The Movie in theaters and sales of Hillary in DVD format . . . . from major retailers such as 

Amazon.com.”), at 7 (stating that ads will be timed “to maximiz[e] box office and DVD sales”).) 

To the extent that plaintiff contends that the ads are commercial speech, mandatory disclosure of 

such speech is subject to even fewer constitutional restrictions than those governing disclosure of 

political advertising. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 

557, 562-63 (1980) (“The Constitution . . . accords a lesser protection to commercial speech than 

to other constitutionally guaranteed expression.”). In sum, therefore, there is no constitutional 

requirement that plaintiff’s ads be unambiguously campaign related to be subject to disclosure 

requirements. Citizens United must demonstrate a substantial likelihood that this Court will 

declare the disclosure requirements unconstitutional under either an intermediate scrutiny 

standard or the lower standard applicable to commercial speech, and plaintiff cannot do so. 

C. Disclosure Regarding Electioneering Communications Furthers Important 

Government Interests 

The important government interests relating to disclosure of political activity are well 

recognized: “[D]isclosure serves informational functions, as well as the prevention of corruption 

and the enforcement of the contribution limitations.” Buckley, 424 U.S. at 83; see also 

McConnell, 540 U.S. at 196. More specifically, courts have identified disclosure-related 

governmental interests in (a) encouraging maximum transparency in political activity by 

providing financial information to the public, (b) facilitating enforcement of substantive funding 

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regulations, and (c) deterring actual or apparent corruption.7

 The informational and enforcement 

interests apply with full force to plaintiff’s planned ads, as discussed below. 

1. Providing Information to the Public 

The government’s interest in providing information to the public was recognized in 

Buckley, which held the interest sufficient to justify mandatory disclosure of campaign financing 

and express advocacy. Buckley, 424 U.S. at 66-67. McConnell then applied Buckley’s holding 

regarding this interest to uphold the EC disclosure provisions. McConnell, 540 U.S. at 196, 

200-01; see also id. at 237-43 (upholding broadcast station record-keeping requirements in part 

to “help both the regulatory agencies and the public ... determine the amount of money that 

individuals or groups, supporters or opponents, intend to spend to help elect a particular 

candidate”). Plaintiff engages in no analysis of Buckley or McConnell’s holdings on these 

points, instead resting its entire argument again on the premise that the government’s only 

interest is in disclosure of “unambiguously campaign related” speech. (See Pl.’s Mem. at 31.) 

Once more, however, plaintiff’s assertion is contrary to law. 

The government’s informational interest has repeatedly been found to justify mandatory 

disclosure relating to two different forms of “pure” issue advocacy. First, the informational 

interest has been recognized extensively in the context of issue advocacy regarding ballot 

initiatives. See, e.g., Buckley v. Am. Constitutional Law Found., 525 U.S. at 204 (upholding 

requirement to disclose donations made to organizations to pay ballot-initiative petition 

 

7

 Regarding independent communications that meet the statutory definition of ECs, the 

government’s anti-corruption interest under FECA has been judicially limited to express 

advocacy or its functional equivalent. See WRTL, 127 S. Ct. at 2672. Thus, because the 

Commission assumes for purposes of this motion that at least two of plaintiff’s planned ads are 

not the functional equivalent of express advocacy (see Def.’s Mem. in Opp. to Pl.’s Mot. for 

Consol. at 8-9), the Commission is not relying upon an anti-corruption interest to justify 

disclosure requirements as applied to plaintiff’s WRTL ads. 

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circulators); 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.”); Calif. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 

1107 (9th Cir. 2003) (holding that state’s informational interest, where factually supported, is 

sufficient to justify mandatory financial disclosure regarding ballot-initiative advocacy); 

R.I. Affiliate, 431 F. Supp. 2d at 236 (citing Calif. Pro-Life Council). This is particularly 

noteworthy here because the Supreme Court has held that ballot-initiative activity is inherently 

issue-focused and does not have the same corruptive potential as spending to influence candidate 

elections. Bellotti, 435 U.S. at 790 (“The risk of corruption perceived in cases involving 

candidate elections simply is not present in a popular vote on a public issue.”) (internal citations 

omitted); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 353 n.15 (1995) (quoting Bellotti). 

For this reason, the WRTL Court itself considered ballot-initiative advertising to be analogous to 

WRTL ads for First Amendment purposes. See WRTL, 127 S. Ct. at 2664-65 (citing Bellotti), 

2671-73 (same); see also id. at 2677 (Scalia, J., concurring) (noting that “nonexpress advocacy” 

is “protected under Buckley and Bellotti”). Thus, any claim by plaintiff that the government has 

no interest in disclosure of non-campaign issue advocacy is contrary to Supreme Court precedent 

and must fail: The interest necessarily extends to issue speech “so that the people will be able to 

evaluate the arguments to which they are being subjected.” Bellotti, 435 U.S. at 792 n.32. 

Second, courts are nearly unanimous in upholding 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,

e.g., United States v. Harriss, 347 U.S. 612, 625 (1954) (“[F]ull realization of the American ideal 

of government by elected representatives depends to no small extent on their ability to properly 

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evaluate such pressures.”); Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 

460 (11th Cir. 1996) (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”); Minn. State Ethical Practices Bd. v. Nat’l Rifle Ass’n of Am., 

761 F.2d 509, 512 (8th Cir. 1985) (quoting Harriss).8

 Lobbying, like issue advocacy, is not 

directed at candidate campaigns; it is issue-oriented political activity protected by the First 

Amendment, and it therefore shares most of the key characteristics of WRTL advertising that the 

Supreme Court found significant in that case. See WRTL, 127 S. Ct. at 2667 (“The ads focus on 

a legislative issue [and] take a position on the issue . . . . The ads do not mention an election, 

candidacy, political party, or challenger . . . .”). Thus, these cases make clear that the 

government’s interest in providing information to the public extends beyond speech about 

candidate elections and encompasses activity that attempts to sway public opinion on issues, just 

as plaintiff claims to wish to do here.9

 

8

 See also Comm’n on Indep. Coll. & Univ. v. N.Y. Temp. State Comm’n on Regulation of 

Lobbying, 534 F. Supp. 489, 494-95 (N.D.N.Y. 1982) (“The lobby law serves to apprise the 

public of the sources of pressure on government officials, thus better enabling the public to 

access their performance.”); Am. Civil Liberties Union of N.J. v. N.J. Election Law Enforcement 

Comm’n, 509 F. Supp. 1123, 1129 (D.N.J. 1981) (“The voting public should be able to evaluate 

the performance of their elected officials in terms of representation of the electors’ interest in 

contradistinction to those interests represented by lobbyists.”) (citation omitted); Kimbell v. 

Hooper, 665 A.2d 44, 49 (Vt. 1995) (“Vermont’s lobbyist disclosure law is a reasonable means 

of evaluating the lobbyist’s influence on the political process.”). 

9

 As Chief Justice Roberts noted when he reaffirmed Buckley’s holding that the 

“‘distinction between discussion of issues and candidates and advocacy of election or defeat of 

candidates may often dissolve in practical application,’” WRTL, 127 S. Ct. at 2669 (quoting 

Buckley, 424 U.S. at 42), an ad may both resemble advocacy for or against candidates and 

advocate a position on an issue. While the decision in WRTL is clear that BCRA’s financing 

restriction for electioneering communications cannot be applied to corporate spending unless the 

ad is susceptible of no reasonable interpretation other than candidate advocacy, that 

constitutional requirement does not vitiate the Court’s recognition that many WRTL ads may in 

fact influence elections. It thus makes sense that Congress placed administration of the 

disclosure requirements for all ECs within the Commission’s jurisdiction, even though not all 

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In sum, even accepting arguendo the proposition that plaintiff’s WRTL ads are issue 

speech, such ads still constitute attempts to sway public opinion or action on the specified issues, 

just as ballot-initiative advertising and lobbying activities are. In each of these areas, the 

government’s informational interest has been uniformly recognized, and mandatory disclosure 

provisions have been consistently upheld.10 

2. Facilitating Enforcement of Funding Regulations 

The second important government interest courts have recognized in upholding 

disclosure statutes is the interest in enabling enforcement of substantive funding regulations. In 

the electoral context, Buckley upheld FECA’s disclosure requirements as advancing the 

government’s interest in “gathering the data necessary to detect violations of the contribution 

limitations.” 424 U.S. at 68. McConnell similarly held that mandatory disclosure was 

constitutional in light of the interest in “gathering the data necessary to enforce more substantive 

electioneering restrictions.” 540 U.S. at 196; see also id. at 200-01 (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 

 

ECs contain express advocacy or its functional equivalent. This situation is analogous to 

McConnell’s holding accepting the FCC’s argument that its BCRA-mandated regulations 

regarding issue advertising were substantially related to the government’s interest in detecting 

violations of FECA, even though the FCC has no other oversight responsibilities over that Act. 

See McConnell, 540 U.S. at 237; see also Alaska Right to Life, 441 F.3d at 793 (“[E]ven if there 

were some relevant protection of issue advocacy, and even if disclosures of the nongroup entity’s 

identity were required in connection with such issue advocacy, there is a compelling state 

interest justifying such a requirement.”). 

10 To the extent that plaintiff’s WRTL ads are commercial speech, the government’s 

informational interest and ability to require disclosure may be even stronger. See Zauderer v. 

Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651-52 (1985) 

(upholding disclaimer requirements in attorney advertising); Central Hudson, 447 U.S. at 562-63 

(noting “lesser protection” accorded to commercial speech). 

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with the disclosure requirements and source limitations of BCRA and [FECA]”); cf. Daggett v. 

Comm’n on Gov’t Ethics & Election Practices, 205 F.3d 445, 466 (1st Cir. 2000) (upholding 

expenditure disclosure statutes to enable administration of public campaign financing system); 

Jackson, 476 F. Supp. 2d at 525 (same). 

This enforcement interest is not limited to spending by candidates or those coordinating 

their spending with candidates. The Supreme Court has recognized Congress’s “legitimate fear” 

that, if disclosure were limited to such spending, “efforts would be made, as they had been in the 

past, to avoid the disclosure requirements by routing financial support of candidates through 

avenues not explicitly covered by the general provisions of the Act.” Buckley, 424 U.S. at 76 

(internal quotation marks omitted). Thus, the government’s interest as it relates to disclosure of 

independent campaign-related spending “can be as strong as it is in coordinated spending.” See

Buckley, 424 U.S. at 81; Citizens for Responsible Gov’t State Political Action Comm. v. 

Davidson, 236 F.3d 1174, 1197 (10th Cir. 2000) (upholding state disclosure requirements for 

independent expenditures); Daggett, 205 F.3d at 466 (same); Adventure Commc’ns, Inc. v. Ky. 

Registry of Election Fin., 191 F.3d 429, 443 (4th Cir. 1999) (upholding mandatory disclosure of 

data regarding advertising for or against state candidates). 

Nor is the enforcement interest limited to mandatory disclosure of disbursements by 

entities whose major purpose is campaign activity. For example, the Supreme Court in MCFL

held that the defendant corporation must be allowed to finance independent expenditures with its 

corporate treasury funds because it presented no “threat at all” of corruption due to its particular 

lack of business activity and funding. 479 U.S. at 263. Nevertheless, the Court held that MCFL 

would have to report its independent expenditures so that the public would have information, the 

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Commission could monitor its independent spending, and the Commission could review whether 

the corporation’s major purpose has become campaign activity: 

Even if [the contribution limit] is inapplicable, an independent expenditure 

of as little as $250 by MCFL will trigger the disclosure provisions of 

§ 434(c). As a result, MCFL will be required to identify all contributors 

who annually provide . . . funds intended to influence elections, will have 

to specify all recipients of independent spending . . ., and will be bound to 

identify all persons making contributions . . . 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. . . . 

Furthermore, should MCFL’s independent spending become so extensive 

that the organization’s major purpose may be regarded as campaign 

activity, the corporation would be classified as a political committee. As 

such, it would automatically be subject to the obligations and restrictions 

applicable to those groups whose primary objective is to influence 

political campaigns. In sum, there is no need for the sake of disclosure to 

treat MCFL any differently than other organizations that only occasionally 

engage in independent spending on behalf of candidates. 

Id. at 262 (internal citation omitted and emphasis added); see also McConnell, 540 U.S. at 

209-211 (interpreting BCRA to exempt MCFL corporations from prohibition on using corporate 

treasury funds to finance ECs). In other words, even though MCFL corporations may finance 

independent expenditures and all electioneering communications with their general treasury 

funds, FECA’s disclosure provisions remain applicable to such corporations so that the 

government can determine if and when they cross the line from exempt to regulable activity. 

Analogously, even though the prohibition on corporate spending cannot constitutionally 

be applied when corporations run WRTL ads, the EC disclosure provisions remain applicable to 

such ads because the government has an important enforcement interest in determining which 

ECs are exempt under WRTL and which are regulable. The Ninth Circuit recognized such an 

interest in Alaska Right to Life, in which the court analyzed a state disclosure statute similar in 

both the reporting and disclaimer areas to FECA’s disclosure provisions regarding ECs. See 441 

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F.3d at 788-93. The plaintiff in that case, an MCFL corporation, argued that “to the degree 

disclosure . . . is required for ‘issue advocacy’ communications . . . , there is no compelling state 

interest that would justify such a requirement.” Id. at 793. The court rejected ARTL’s 

contention, noting that the MCFL Court itself had found sufficient state interests, including an 

enforcement interest, to justify mandatory disclosure regarding MCFL’s activities. Id. at 791-93. 

The Ninth Circuit therefore held that ARTL could constitutionally be compelled to make 

disclosures regarding advertising that met the statutory definition of an EC but that consisted 

only of issue advocacy — i.e., what would now be known as WRTL ads. 

This analysis applies with equal force to BCRA’s EC disclosure provisions: Without 

disclosure, the Commission would have difficulty knowing when or where ECs are being 

broadcast, and would therefore be seriously harmed in its ability to ensure that communications 

purporting to be WRTL ads meet the criteria to be financed by corporate or union general 

treasury funds. Thus, requiring all EC advertisers to disclose serves the government’s important 

interest in “gathering the data” necessary to ensure that the Act is properly enforced. 

D. Plaintiff Demonstrates No Constitutional Burden Arising From The 

Disclosure Provisions 

Citizens United cannot demonstrate any cognizable First Amendment burden arising 

from the EC disclosure provisions. In fact, plaintiff provides no evidence whatsoever of any 

burden as to its claims against the reporting requirements, and its allegations of burdens from EC 

disclaimers are so minimal that they cannot reasonably outweigh any important government 

interests. 

1. Plaintiff Presents No Evidence That Its Donors Will Suffer Reprisals 

Both Buckley and McConnell held that as-applied challenges to disclosure requirements 

might be appropriate in a single situation: when an organization’s disclosure would result in a 

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“reasonable probability” of “threats, harassment, and reprisals” of its members. McConnell, 540 

U.S. at 198-99 (citing Buckley, NAACP v. Alabama, 357 U.S. 449 (1958), and Brown v. Socialist 

Workers ’74 Campaign Comm., 459 U.S. 87 (1982)); see also Buckley, 424 U.S. at 69-74, 82 

n.109 (citing NAACP). This appears to be the burden to which plaintiff refers in claiming that its 

donors “may then be subject to various forms of retaliation by political opponents.” (Compl. 

¶ 23; Pl.’s Mem. at 8.) Proof of burdensome reprisal has been demonstrated, however, only in 

cases involving organizations, such as the NAACP and the Socialist Workers Party, whose 

members faced actual, documented danger at the relevant time. See Buckley, 424 U.S. at 69 

(noting that plaintiffs in NAACP faced “economic reprisal, loss of employment, physical 

coercion, and other manifestations of public hostility”) (citation omitted); McConnell, 540 U.S. 

at 198-99 (noting that Brown Court found “reasonable probability” of “threats, harassment, and 

reprisals”). The Buckley and McConnell Courts, while recognizing harassment as a potential

burden, specifically found no evidence of actual harassment in the FECA/BCRA context and 

held that such evidence would be required to mount a reprisal-based, as-applied First 

Amendment challenge to the Act’s disclosure provisions. Buckley, 424 U.S. at 69 (“No 

harassment on a similar scale was found in this case.”); McConnell, 540 U.S. at 199 (upholding 

lower court finding that “concerns” of plaintiffs regarding harassment were unsupported due to 

“lack of specific evidence”); see also Alaska Right To Life, 441 F.3d at 793-94 (rejecting 

harassment-based, as-applied challenge to disclosure requirements).11 Accordingly, in the 

 

11 See also Mariani v. United States, 212 F.3d 761, 775 (3d Cir. 2000) (citing Buckley for 

proposition that FECA disclosure provisions did not give rise to “reasonable probability” of 

“threats, harassment, or reprisals”); Jones, 613 F.2d 864, 876-77 (rejecting minor party’s claim 

that FEC investigation subjected party to threats or harassment); Colo. Right To Life, 395 

F. Supp. 2d at 1016 n.17 (rejecting First Amendment claim because plaintiff did not provide 

evidence of threats or harassment arising from disclosure); cf. In re Grand Jury Proceedings, 

776 F.2d 1099, 1103-04 (2d Cir. 1985) (holding that party asserting First Amendment 

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absence of specific evidence that a particular organization (or its members) faces a reasonable 

probability of NAACP-type harassment arising from the mandated disclosures, a plaintiff 

alleging this kind of burden cannot prevail in an as-applied challenge to the EC disclosure 

provisions. 

Plaintiff provides no evidence whatsoever to support its conclusory allegation regarding 

reprisals against its members. The only support plaintiff can muster (Compl. ¶ 23; Pl.’s Mem. 

at 8) is a newspaper article, which, in addition to being inadmissible hearsay, has nothing to do 

with Citizens United.12 In fact, plaintiff’s statements to the public contradict any suggestion that 

Citizens United might make in this lawsuit that it is a marginalized group afraid of publicity; 

instead, it has portrayed itself as a large, well-connected, mainstream organization. See Joe 

Murray, Lawsuit Threatened Over CNN’s ‘Campaign Killers’ The Bulletin (Dec. 6, 2007) 

(quoting written statement by plaintiff’s spokesman that “Citizens United [is] hardly a ‘fringe’ 

group (unless consistent and open association with the former Speaker of the House, a current 

leading presidential candidate and numerous other leading Republicans can be considered 

‘fringe’)”). Plaintiff has recently even threatened to file suit against a news organization for 

referring to Citizens United as a “fringe militia.” See Press Release, Citizens United to Sue 

CNN, http://www.citizensunited.org/press/?entryid=1972618 (Dec. 4, 2007). Thus, for plaintiff 

to suggest that its members face the same level of reprisals as did the NAACP (in the 1950s) and 

 

associational privilege to withhold organization’s membership information from grand jury 

“must show a reasonable probability that compelled disclosure would subject an organization’s 

members to threats, harassment, or reprisals from either government officials or private parties”) 

(citing Buckley). 

12 The Local Rules prohibit plaintiff from attempting to cure its motion’s evidentiary 

deficiencies with after-the-fact affidavits or declarations. LCvR 65.1(c) (“The application [for a 

preliminary injunction] shall be supported by all affidavits on which the plaintiff intends to 

rely.”) (emphasis added). 

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the Socialist Workers Party would be facially absurd, and plaintiff’s allegations of a reprisal 

burden must accordingly fail.13

2. Plaintiff Presents No Evidence That The Disclosure Requirements 

Will Chill Its Speech 

Plaintiff’s second alleged constitutional burden appears to be a claim that the disclosure 

requirements will chill its speech. (See Compl. ¶¶ 26-27; Pl.’s Mem. at 33.) To the extent that 

this allegation is based on speculation that the reporting requirements may cause donors not to 

contribute to plaintiff because of a fear of reprisal, the argument fails for the reasons stated 

above. See supra Part IV.D.1; see also 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.”). To the extent plaintiff claims that 

the disclosure requirements will chill its speech directly, this 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 a 

constitutional infringement.14 See McConnell, 540 U.S. at 197-99, 201 (“[FECA’s] disclosure 

 

13 If a donor faced a real threat of reprisal, the corporation could request that the 

Commission exempt disclosure of that donor from the relevant disclosure requirements on 

constitutional grounds, as the Socialist Workers Party has done repeatedly and successfully. See

FEC Advisory Opinions 1990-13 (granting party exemption from disclosure requirements due to 

substantiated threat of reprisals), 1996-46 (same), 2003-02 (same); see also Electioneering 

Communications, http://www.fec.gov/law/cfr/ej_compilation/2007/notice_2007-26.pdf, at 11 

(approved Dec. 14, 2007, publication in Federal Register pending) (“Organizations with 

significant and serious threats of reprisal or harassment may seek as-applied exemptions to the 

disclosure requirements under Socialist Workers through advisory opinions and court filings.”). 

All FEC Advisory Opinions are available on the Commission’s website at 

http://saos.nictusa.com/saos/searchao. 

14 McConnell also quoted with approval the lower court’s finding that the corporate 

plaintiffs challenging the disclosure provisions purported to seek “wide-open” speech, yet 

“[c]uriously” sought to hide such speech behind “dubious and misleading” organizational 

identities, thereby “ignor[ing] the competing First Amendment interests of individual citizens 

seeking to make informed choices in the political marketplace.” McConnell, 540 U.S. at 196-97. 

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requirements are constitutional because they ‘d[o] not prevent anyone from speaking.’”) (quoting 

McConnell v. FEC, 251 F. Supp. 2d 176, 241 (D.D.C. 2003)); see also Buckley v. Am. 

Constitutional Law Found., 525 U.S. at 198 (rejecting challenge to requirement that petition 

circulators file affidavits); Majors v. Abell, 361 F.3d 349, 354 (7th Cir. 2004); Citizens for 

Responsible Gov’t, 236 F.3d at 1199; Am. Civil Liberties Union of Nev. v. Heller, 378 F.3d 979, 

1002 (9th Cir. 2004); cf. Harriss, 347 U.S. at 626 (rejecting First Amendment challenge to 

federal lobbyist disclosure statute because “hazard” of speech being silenced by financial 

disclosure was “too remote” to outweigh government’s interest in protecting legislative process). 

Plaintiff provides no evidence whatsoever regarding any direct connection between the reporting 

requirements and plaintiff’s allegedly chilled speech, much less any authority for the proposition 

that such a connection would be legally significant. Accordingly, the reporting requirements 

cannot be the grounds for the constitutional burden plaintiff must demonstrate to show a 

substantial likelihood of success on the merits of its case. 

As to the disclaimer requirements, plaintiff states that these requirements “will preclude 

Citizens United from running its 10-second ads.” (Compl. ¶ 27; Pl.’s Mem. at 9.) The 

Commission is aware of no authority — and plaintiff cites none — stating that a requirement to 

use a portion of a television commercial to convey important information relevant to that 

commercial creates a cognizable chill on the advertiser’s ability to advertise. Indeed, federal and 

state governments often require extensive oral and written information to be included in various 

communications, such as advertising for attorneys, pharmaceuticals, securities, etc. As the 

Second Circuit has 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 

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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. § 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. 

Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 116 (2d Cir. 2001). In each of these areas, the 

advertiser undoubtedly would prefer to use its time and space for content other than a disclaimer, 

but the disclaimer requirements do not prevent plaintiff from advertising — they only result in 

plaintiff, like all advertisers subject to regulation, having to purchase a few seconds of additional 

advertising time, which is not a burden of constitutional dimension.15

3. The Disclosure Requirements Do Not “Mislead The Public” 

Plaintiff’s third alleged burden, arising from both the disclaimer and reporting 

requirements, is that the requirements will cause plaintiff to “mislead the public” by “identifying 

its speech as electioneering speech.” (Compl. ¶ 27; Pl.’s Mem. at 9.) This allegation has no 

basis in fact or law. As noted supra Part II, BCRA requires the following disclosures relating to 

televised ECs: 

(1) A statement filed with the Commission identifying (a) the entity making the EC 

disbursement, (b) the amount, date, and recipient of the disbursement, and (c) the 

 

15 Although plaintiff conflates the written and spoken disclaimer provisions into a single 

“Disclaimer Requirement” (Compl. ¶ 1) that allegedly “deprives Citizens United of valuable 

time in its short and expensive broadcast Ads” (Compl. ¶ 27), the written disclaimer provision 

has no effect on an advertiser’s ability to use its time as it wishes. See 11 C.F.R. 

§110.11(c)(4)(iii)(A) (providing that written disclaimer may be as small as four percent of 

vertical height of television screen). 

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names and addresses of each person who donated at least $1,000 “for the purpose 

of furthering electioneering communications”; 

(2) A written statement on the screen (a) listing “the name and permanent street 

address, telephone number, or World Wide Web address of the person who paid 

for the communication,” (b) stating that “that the communication is not authorized 

by any candidate or candidate’s committee,” and (c) stating that the entity funding 

the EC “is responsible for the content of this advertising”; and 

(3) An oral statement that the entity funding the EC “is responsible for the content of 

this advertising.” 

Contrary to plaintiff’s unexplained assertion, none of these provisions requires Citizens United to 

identify its ads as “electioneering speech.” In fact, the disclaimer requirements are precisely 

worded so that plaintiff need only take responsibility “for the content of this advertising,” with 

no additional characterization or definition. Plaintiff does not explain how such a statement 

could “mislead” the public. 

In Meese v. Keane, 481 U.S. 465 (1987), the Supreme Court considered and rejected an 

argument identical to the one now raised by Citizens United. The Meese plaintiff, who wished to 

exhibit certain films, claimed his First Amendment rights were violated by a statute that required 

the films to be labeled “political propaganda.” Id. at 467-68. The Court denied this claim and 

held that the plaintiff’s rights were not violated because: (a) the plaintiff was free to go beyond 

the required disclosures to explain to his audience that the films were not “propaganda” in the 

common understanding of the term, id. at 480-81; (b) the statute did not require any information 

to be withheld from the public, id. at 481-82; (c) “a zeal to protect the public from too much 

information” does not state a constitutional claim, id. at 482 (internal quotation marks omitted); 

(d) there was no evidence on the record that the public misunderstood the label, id. at 483; and 

(e) “no constitutional provision prohibits the Congress” from using whatever labels it wishes to 

use in defining terms within legislation, id. at 484-85. Each of these rationales applies with 

equal force here: Plaintiff is free to explain the meaning of the term “electioneering” as much as 

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it wishes, the statute withholds no information from the public, there is no evidence that the 

public is confused by EC disclaimers, and Congress was entirely within its power to use the term 

“electioneering communication” instead of whatever term plaintiff would prefer. 

In sum, therefore, plaintiff fails to state a cognizable claim that the disclosure 

requirements unconstitutionally burden Citizens United by misleading the public, and plaintiff 

accordingly cannot demonstrate that its burden outweighs the government’s important interests 

sufficiently to warrant the entry of a preliminary injunction. 

4. Administrative Burdens Do Not Infringe On Plaintiff’s Constitutional 

Rights 

Plaintiff’s final alleged burden is that compliance with the disclosure requirements will 

cost Citizens United “valuable time and resources.” (Compl. ¶ 27; Pl.’s Mem. at 9.) This 

allegation does not state a claim under the First Amendment. As a nonprofit corporation 

(particularly one engaged in commercial activity), plaintiff is required to file statements with the 

Internal Revenue Service, state regulators, and any number of other government agencies, with 

each such filing demanding the “time and resources” of the corporation and its agents. The 

Commission has located no case — and plaintiff cites none — in which such requirements have 

been found significant enough to outweigh any government interest, much less the important 

government interests that underlie BCRA’s disclosure requirements. See McConnell, 540 U.S. at 

235 (upholding BCRA’s broadcaster record-keeping requirement against administrative burden 

challenge); Adventure Commc’ns, 191 F.3d at 443 (rejecting administrative burden argument); 

Davis v. FEC, 501 F. Supp. 2d 22, 32-33 (D.D.C. 2007) (rejecting administrative burden 

challenge to BCRA requirement that spending statement be filed within twenty-four hours of 

expenditure). 

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E. The Important Government Interests In Disclosure Outweigh All Of 

Plaintiff’s Alleged Constitutional Burdens 

 For the foregoing reasons, the Commission has important government interests in the 

disclosure provisions at issue here. Specifically, the Commission has important interests in 

providing information to the public regarding the financing of plaintiff’s issue/commercial 

speech, and in enforcing the substantive restrictions applicable to ECs. Plaintiff has provided 

neither factual evidence nor legal authority for the proposition that the disclosure provisions 

constitute a burden on Citizens United’s First Amendment rights. Accordingly, plaintiff has not 

demonstrated a likelihood of success on the merits of its case, and its motion for a preliminary 

injunction must therefore fail. 

V. PLAINTIFF FAILS TO DEMONSTRATE IRREPARABLE INJURY 

 Citizens United fails to meet its burden of demonstrating that it will suffer irreparable 

harm in the absence of a preliminary injunction, the second factor that the Court must consider. 

The D.C. Circuit “has set a high standard for irreparable injury.” Chaplaincy of Full Gospel 

Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). The “injury must be both certain and 

great,” and “actual and not theoretical.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. 

Cir. 1985). Plaintiff must also “show that [t]he injury complained of [is] of such imminence that 

there is a clear and present need for equitable relief to prevent irreparable harm.” Id. (internal 

citation and quotation marks omitted). Further, the prospective injury must be “beyond 

remediation.” Chaplaincy, 454 F.3d at 297. 

In addition, if the requested relief “would alter, not preserve, the status quo . . . [a 

plaintiff] must meet a higher standard than [if] the injunction [plaintiff] sought [were] merely 

prohibitory.” Veitch v. Danzig, 135 F. Supp. 2d 32, 35 (D.D.C. 2001). In the area of First 

Amendment rights, “[a] litigant must do more than merely allege the violation” to demonstrate 

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irreparable harm. Wagner v. Taylor, 836 F.2d 566, 576 n.76 (D.C. Cir. 1987); see also NTEU v. 

United States, 927 F.2d 1253, 1254-55 (D.C. Cir. 1991). 

A. Plaintiff’s Alleged Injuries Are Neither Actual Nor Certain 

 Even outside the context of a preliminary injunction, as explained above, plaintiff fails to 

establish a constitutional burden resulting from the EC disclosure provisions. See supra Part 

IV.D. Plaintiff presents no evidence that that its donors will suffer threats, harassment, and 

reprisals as a result of disclosure. See supra Part IV.D.1. Plaintiff’s failure is striking given that 

it has been disclosing the names and addresses of its members who have donated to its separate 

segregated fund (commonly referred to as a “PAC”) for more than thirteen years. See Citizens 

United Political Victory Fund, Stmt. of Org. (June 15, 1994), http://query.nictusa.com/cgibin/fecimg/?_94039043287+0; Citizens United Political Victory Fund, Disclosure Reports, 

http://query.nictusa.com/cgi-bin/fecimg/?C00295527. It has disclosed approximately 1,000 

contributions from individuals in amounts of $200 or more during that time, complete with 

address and employer information for most of the individuals. Citizens United Political Victory 

Fund, Individual Contributions, http://query.nictusa.com/cgi-bin/com_ind/C00295527/. In spite 

of this considerable past disclosure regarding its members, Citizens United submits no evidence 

regarding any of its actual donors, let alone any evidence that they have suffered reprisals. 

Far from being the subject of harassment, plaintiff has this month contended that it is a 

“mainstream” organization associated with former Speaker of the House Newt Gingrich and 

“numerous other leading Republicans.” See supra Part IV.D.1. “[T]o state the obvious, no 

comparable stigma attaches to association with Speaker Gingrich . . . as once attached to 

members of the Socialist Workers Party.” FEC v. GOPAC, Inc., 897 F. Supp. 615, 618 (D.D.C. 

1995). Plaintiff’s sole support, a newspaper article discussing the location of FBI files during the 

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time that Senator Clinton’s husband was President, falls considerably short of the “specific 

evidence” of a “reasonable probability” of threats, harassment, and reprisals required. 

McConnell, 540 U.S. at 198-99. The conclusion plaintiff asks the Court to draw from its 

purported evidence rests on a series of unstated assumptions and causal connections, and is 

“highly speculative.” Herschaft v. New York City Campaign Fin. Bd., 139 F. Supp. 2d 282, 285 

(E.D.N.Y. 2001) (newspaper articles and testimony about “recent acts of violence against Jews 

in New York City . . . [provide] simply no basis thereupon to conclude that contributors to 

plaintiff’s campaign for City Council will be targeted for threats or harassment”). Moreover, on 

its face, plaintiff’s allegation is based only “[o]n information and belief.” (Compl. ¶ 23.) 

Plaintiff also fails to show that disclosure related to its ads will unconstitutionally chill its 

own corporate speech, mislead the public, or impose administrative burdens. See supra Parts 

IV.D.2-4. Because Citizens United is unable to establish any such constitutional burden, 

plaintiff clearly falls short of meeting the “high standard” necessary for a preliminary injunction, 

the showing that the injury is “certain and great,” “actual and not theoretical.” 

 Finally, the Court should reject plaintiff’s attempt to recast the burden at issue as whether 

plaintiff may air its advertisements. (Compl. ¶ 26; Pl.’s Mem. 32-33.) As explained supra Part 

IV.D.1, the Supreme Court has recognized only a reasonable probability of harassment and 

reprisal as proper grounds for an as-applied challenge to disclosure requirements. Here, given 

plaintiff’s utter failure to establish any cognizable harm that would result from making the 

necessary disclosures, there does not appear to be any reason for plaintiff not to proceed with its 

advertisements and the necessary disclosures. Thus, just as the Second Circuit rejected a claim 

that filing financial disclosure forms would force school board members to resign absent a 

preliminary injunction, this Court should reject plaintiff’s unnecessary self-censorship as a 

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reason for preliminarily enjoining the Commission. Kaplan v. Bd. of Educ., 759 F.2d 256, 259 

(2d Cir. 1985). “[I]t would be the acts of non-compliance and not the implementation of the 

regulation which would be the cause of any such chaos.” Id. 

B. Plaintiff Faces No Imminent Injury 

Plaintiff also fails to establish that “[t]he injury complained of [is] of such imminence that 

there is a clear and present need for equitable relief to prevent irreparable harm.” Wisconsin 

Gas, 758 F.2d at 674 (internal citation and quotation marks omitted). Several of plaintiff’s 

allegations are by definition unlikely to occur soon, let alone imminently. 

With respect to the alleged retaliation against disclosed donors, such retaliation could 

occur only after (1) plaintiff has raised over $1,000 from donors specifically for the purpose of 

furthering ECs, 11 C.F.R. § 104.20(c)(7)(ii),(9) (the complaint alleges only that plaintiff “will” 

have donors that it will be required to disclose), (2) plaintiff has run ECs, (3) plaintiff has filed 

disclosure reports, (4) potentially retaliatory third parties have viewed plaintiff’s disclosure 

reports, and (5) those third parties have an opportunity to retaliate. Particularly because Citizens 

United has failed to provide evidence that any of its donors fear retaliation, failed to name or 

describe who might be likely to engage in such retaliation, and failed to specify what the 

purported retaliation would encompass, plaintiff has provided only a long hypothetical sequence 

of events, which demonstrates that there is no “clear and present need for equitable relief.” 

Wisconsin Gas, 758 F.2d at 674. Hypothetical injuries are “far too speculative to warrant 

preliminary injunctive relief.” Chaplaincy, 454 F.3d at 298. 

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Similarly, plaintiff’s alleged irreparable harm related to “criminal penalties” depends 

upon the institution and completion of an investigation.16 (Pl.’s Mem. at 32.) Even setting aside 

the fact that the Commission has no criminal jurisdiction and that never in its history has it tried 

to enforce a prior restraint on anyone’s speech, the harm plaintiff fears is far from imminent. 

Congress carefully designed the Act’s enforcement procedures “to ensure fairness . . . to 

respondents.” See Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996). As Congress presumably 

was aware, under the Act’s elaborate enforcement procedures — which include multiple 

opportunities for a respondent to file briefs and permit only a court to impose a remedy on a 

respondent unwilling to agree to one — “complaints filed shortly before elections . . . might not 

be investigated and prosecuted until after the event.” Id. at 558-559 (recounting statutory 

enforcement procedures). Accordingly, the likelihood that plaintiff would suffer anything 

beyond an investigative proceeding during the life of a preliminary injunction is remote. 

Wisconsin Right to Life, Inc., 2006 WL 2666017, at *5 (“[A]n FEC administrative investigation . 

. . carries little threat of imminent or certain sanction.”). Even if an administrative proceeding 

during that time then concluded with the institution of an enforcement suit against plaintiff, 

Citizens United would then have a full opportunity to present its constitutional argument de novo

to a federal court before it could be subject to any penalties for its conduct. See 2 U.S.C. 

§ 437g(a)(4)-(6). That distant eventuality is manifestly not imminent. Wisconsin Right to Life, 

Inc., 2006 WL 2666017, at *5 (“It is clear that even if an administrative investigation is opened, 

the investigation likely would not conclude until long after the . . . ad has been broadcast.”). 

 

16 The Commission has “exclusive jurisdiction with respect to the civil enforcement” of 

FECA, 2 U.S.C. § 437c(b)(1), and the Department of Justice has criminal jurisdiction, 28 U.S.C. 

§ 516. 

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C. None of Plaintiff’s Alleged Harms Is Beyond Remediation 

 Finally, plaintiff must demonstrate that its alleged injury is “beyond remediation,” 

Chaplaincy, 454 F.3d at 297, or “irreparable,” Wisconsin Gas, 758 F.2d at 674. As the D.C. 

Circuit has explained, “[m]ere injuries, however substantial, in terms of money, time and energy 

necessarily expended in the absence of a stay are not enough. The possibility that adequate 

compensatory or other corrective relief will be available at a later date, in the ordinary course of 

litigation weighs heavily against a claim of irreparable harm.” Chaplaincy, 454 F.3d at 297-98. 

 None of plaintiff’s claimed harms is irreparable. For example, the administrative burdens 

that plaintiff claims arise from complying with the disclosure requirements constitute “[m]ere 

injuries” of “money, time and energy.” Id. at 297. Similarly, even if some of plaintiff’s donors 

might donate less than $1,000 to Citizens United in the absence of a preliminary injunction, if 

plaintiff prevails on the merits such donors could make larger donations later to replace what 

they otherwise might have donated sooner. In addition, the mere institution of an administrative 

enforcement proceeding is simply not irreparable harm. As the Supreme Court has explained: 

[The plaintiff] argues that the expense and disruption of defending itself in 

protracted adjudicatory proceedings constitutes irreparable harm. As indicated 

above, we do not doubt that the burden of defending this proceeding will be 

substantial. . . . As we recently reiterated: “Mere litigation expense, even 

substantial and unrecoupable cost, does not constitute irreparable injury.” 

Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974). 

FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 244 (1980); see also Sears Roebuck & Co. v. 

NLRB, 473 F.2d 91, 93 (D.C. Cir. 1973). Thus, any burden associated with responding to a 

possible future FEC enforcement proceeding cannot constitute irreparable harm warranting 

preliminary injunctive relief. None of these alleged harms is “beyond remediation.” 

Chaplaincy, 454 F.3d at 297. 

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 In addition, a delay in moving for a preliminary injunction may “indicate [the] absence of 

irreparable harm required to support a preliminary injunction.” Rodriguez v. DeBuono, 175 F.3d 

227, 235 n.9 (2d Cir. 1999) (citations omitted); Scott-Blanton v. Universal City Studios Prods. 

LLLP, 495 F. Supp. 2d 74, 80 (D.D.C. 2007) (“[D]elay in bringing the motion weighs against a 

finding of irreparable harm.”). Here, Citizens United has planned since at least January 2007 to 

distribute its movie about Senator Clinton “in all of the early primary states,” yet it waited to file 

its preliminary injunction motion until December 13. See supra Part I.C. “[D]elay in seeking a 

remedy is an important factor bearing on the need for a preliminary injunction. Absent a good 

explanation, a substantial period of delay militates against the issuance of a preliminary 

injunction by demonstrating that there is no apparent urgency to the request for injunctive relief.” 

Gonannies, Inc. v. Goupair.Com, Inc., 464 F. Supp. 2d 603, 609 (N.D. Tex. 2006) (citations 

omitted); see also 11A Wright & Miller, Federal Practice and Procedure § 2948.1, 156 n.12 

(2007). Plaintiff’s failure to provide a “good explanation” for its delay is another indication that 

it faces no danger of irreparable harm. Gonannies, 464 F. Supp. 2d at 609. 

D. The Precedent That Plaintiff Relies Upon In Support Of Its Claim Of 

Irreparable Harm Is Inapposite 

 Plaintiff’s legal support for its irreparable harm argument rests entirely upon cases that do 

not bolster its position. Most important, the instant case is entirely different from Elrod v. Burns, 

427 U.S. 347 (1976). In that case the Supreme Court held that employee dismissal based on 

political party patronage was an unconstitutional infringement on employees’ First Amendment 

rights. Id. at 372. But that holding rested on the specific finding that government employees had 

already been “threatened with discharge or had agreed to provide support for the Democratic 

Party in order to avoid discharge,” and it was “clear therefore that First Amendment interests 

were either threatened or in fact being impaired at the time relief was sought.” Id. at 373. Here, 

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however, plaintiff has not alleged any governmental action against it of any kind, let alone the 

kind of imminent or actual threats that were present in Elrod. The D.C. Circuit has clearly 

explained that Elrod did not eliminate a First Amendment plaintiff’s burden to show that its 

interests are actually threatened or in fact being impaired. NTEU, 927 F.2d at 1254-55; Wagner, 

836 F.2d at 576-77 n.76; see also Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. 

District of Columbia, 919 F.2d 148, 149-150 (D.C. Cir. 1990) (rejecting preliminary injunction 

sought by Ku Klux Klan to require local government to issue parade permit for planned march 

longer than one for which it had received permit, finding Elrod not controlling on irreparable 

harm because shorter parade allowed in permit was not total denial of First Amendment rights); 

Wisconsin Right to Life, Inc. v. FEC, Civ. No. 04-1260, 2004 WL 3622736, at *4 (D.D.C. Aug. 

17, 2004) (rejecting WRTL’s reliance on Elrod).17

 Plaintiff’s reliance upon Virginia v. American Bookseller’s Ass’n Inc., 484 U.S. 383, 393 

(1988), is also meritless, because the quotation upon which plaintiff relies was part of the Court’s 

discussion of standing, not irreparable harm in the context of a request for a preliminary 

injunction. That case involved a facial challenge to a statute, and the Supreme Court found that 

if the plaintiffs’ “interpretation of the statute [were] correct, [they would] have to take significant 

and costly compliance measures or risk criminal prosecution.” Id. at 392. The Court found 

that kind of alleged infringement was sufficient to allege an injury in fact under Article III, but 

 

17 See also, e.g., Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir. 1989) (“[A]ssertion of First 

Amendment rights does not automatically require a finding of irreparable injury, thus entitling a 

plaintiff to a preliminary injunction if he shows a likelihood of success on the merits.”); Time 

Warner Cable of New York City v. Bloomberg L.P., 118 F.3d 917, 924 (2d Cir. 1997) (“[It is 

often] more appropriate to determine irreparable injury by considering what adverse factual 

consequences the plaintiff apprehends if an injunction is not issued, and then considering 

whether the infliction of those consequences is likely to violate any of the plaintiff’s rights.”); 

Piscottano v. Murphy, 317 F. Supp. 2d 97, 102 (D. Conn. 2004). 

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the case had nothing to do with the showing of irreparable harm necessary to obtain a 

preliminary injunction.

Because plaintiff has made “no showing of irreparable injury, ‘that alone is sufficient’ for 

a district court to refuse to grant preliminary injunctive relief.” Hicks v. Bush, 397 F. Supp. 2d 

36, 40 (D.D.C. 2005) (citing CityFed Fin. Corp., 58 F.3d at 747); see also Wisconsin Gas, 758 

F.2d at 674 (“[A]nalysis of [irreparable harm] disposes of these motions . . . .”). 

VI. THE RELIEF PLAINTIFF REQUESTS WOULD HARM THE COMMISSION 

AND UNDERCUT THE PUBLIC INTEREST IN DISCLOSURE 

Permitting plaintiff to air its advertisements anonymously and without timely disclosure 

as to its ads’ financing would hinder the public interest and substantially injure the Commission. 

To prevail on its application for a preliminary injunction, plaintiff must establish precisely the 

opposite. CityFed. Fin. Corp., 58 F.3d at 746. Because of the strong public and Commission 

interest in enforcement of the disclosure laws, plaintiff’s proposed injunction would substantially 

injure other parties and would not further the public interest. Plaintiff’s case thus fails to meet 

these two important requirements for preliminary injunctive relief. 

“The public has a strong interest in the enforcement of laws passed by Congress and 

signed by the President.” Wisconsin Right to Life, Inc., 2006 WL 2666017, at *5. As explained 

above, see supra Part III, there is a “presumption of constitutionality which attaches to every Act 

of Congress,” and that presumption is “an equity to be considered in favor of . . . [the 

government] in balancing hardships,” Walters, 468 U.S. at 1324 (1984). As the Supreme Court 

stated in the similar context of a requested injunction pending appeal, “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 

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McConnell, 540 U.S. at 189-210, and denying request regarding BCRA’s EC financing 

restrictions). 

 The public interest in the EC disclosure provisions is abundantly clear because the 

Supreme Court has already held that they further “important state interests,” including 

“providing the electorate with information,” and “gathering the data necessary to enforce more 

substantive electioneering restrictions.” McConnell, 540 U.S. at 196, 231 (quotation omitted). A 

temporary lifting of the EC disclosure provisions during the 2008 election would deprive viewers 

of information about who is airing and paying to finance advertisements that Congress mandated 

be disclosed. 

Citizens United’s proposed relief would end disclosure not just in the ways that plaintiff 

discusses and regarding communications similar to the three proposed ads attached to the 

Complaint, but also to a vast array of other advertisements and other entities, most of which 

plaintiff ignores. The proposed relief would even end the disclosure of the entities responsible 

for airing the advertisements — a portion of the disclosure requirements about which plaintiff 

itself does not allege any harm whatsoever. Such relief would temporarily return the nation to 

the unaccountable, essentially anonymous airing of ECs that existed before BCRA was enacted. 

In those days, entities were able to fund broadcast ads “while concealing their identities from the 

public,” including by “hiding behind dubious and misleading names.” McConnell, 540 U.S. at 

196-97. By asking for relief as to all WRTL ads, plaintiff effectively asks the Court to end 

disclosure related to ECs run by individuals and unincorporated associations, as well as by all 

corporations and labor organizations. 

In that event, the public would have no information about a host of ads that have more 

than one interpretation — one of which could be advocating a candidate’s election. The 

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Supreme Court recognized that “the distinction between campaign advocacy and issue advocacy 

‘may often dissolve in practical application. Candidates, especially incumbents, are intimately 

tied to public issues involving legislative proposals and governmental actions.’” WRTL, 127 S. 

Ct. at 2659 (quoting Buckley, 424 U.S. at 42). Because of the speech-restrictive effects of the EC 

funding restrictions, the Court held in WRTL that the funding restrictions could only be 

constitutionally applied to ads that are “susceptible of no reasonable interpretation other than as 

an appeal to vote for or against a specific candidate.” Id. at 2667. The Court intentionally 

protected a considerable amount of election-related advertising, i.e., ads that reasonably could be 

construed as candidate advocacy and also could reasonably be construed as something else, 

because BCRA § 203 was a direct restraint on spending by corporations and unions of their 

general treasury funds. When the Court in WRTL acknowledged that elements of issue advocacy 

and electoral advocacy could exist in the same message, it did not suggest that the First 

Amendment prohibited disclosure about such messages or that there was no public interest in 

learning about their funding. Thus, the relief sought by Citizens United would prevent the 

achievement of Congress’s goals of “‘shed[ding] the light of publicity’ on campaign financing,” 

McConnell, 540 U.S. at 231 (quoting Buckley, 424 U.S. at 81), and protecting the “‘First 

Amendment interests of individual citizens seeking to make informed choices in the political 

marketplace,’” id. at 197 (quoting McConnell, 251 F. Supp. 2d at 237). 

 Granting plaintiff’s motion for preliminary injunction would also “substantially injure” 

the Commission and the public. CityFed Fin., 58 F.3d at 746. If granted, plaintiff’s motion 

would prohibit the Commission from enforcing the EC disclosure provisions as to a considerably 

large class of advertisements. As Justice Rehnquist explained, “any time a State is enjoined by a 

court from effectuating statutes enacted by representatives of its people, it suffers . . . injury.” 

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42

New Motor Vehicle Bd. of Calif. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., 

in chambers). The Commission and the public are similarly harmed when a court proscribes 

enforcement of a federal statute. “[E]njoining the FEC from performing its statutory duty 

constitutes a substantial injury to the FEC.” Wisconsin Right to Life, Inc., 2006 WL 2666017, at 

*5; see also Christian Civic League of Maine, Inc., 433 F. Supp. 2d at 90. 

CONCLUSION

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

plaintiff’s motion for a 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 

Acting 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: December 20, 2007 (202) 694-1650 

Case 1:07-cv-02240-RCL Document 18 Filed 12/20/2007 Page 50 of 50