____________ 

____________ 

____________ 

 

 

No. 08-205 

In The 

Supreme Court of the


United States
 

CITIZENS UNITED, Appellant 

v.
 

FEDERAL ELECTION COMMISSION, Appellee
 

On Appeal from the United States District Court


for the District of Columbia


 ____________
 

Brief of Amicus Curiae
 

Committee for Truth in Politics, Inc.
 

Supporting Appellant
 

James Bopp, Jr. 

Counsel of Record 

Richard E. Coleson 

Clayton J. Callen

BOPP, COLESON & BOSTROM 

1 South 6th Street 

Terre Haute, IN 47807-3510 

812/232-2434 (telephone)

812/235-3685 (facsimile) 

January 15, 2009 Counsel for Amicus Curiae 
 

Table of Contents 

Table of Authorities. ............................................... (ii)
 

Statement of Interest................................................. 1
 

Summary of Argument. ............................................. 2
 

Argument.................................................................... 3
 

I.	 Campaign-Finance Laws May Only Regulate


Unambiguously-Campaign-Related Activity.


.......................................................................... 3
 

II.	 WRTL II’s Appeal-to-Vote Test Requires a


Clear Plea for Action Urging a Vote.. ........... 17
 

Conclusion. ............................................................... 25
 

(i) 
Table of Authorities 

Cases 

American Civil Liberties Union of Nevada v.
 

Heller, 378 F.3d 979 (9th Cir. 2004). ................. 10
 

Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004).... 10
 

Buckley v. Valeo, 424 U.S. 1 (1976). .... 2-8, 10-11, 13,
 

15-16, 18, 21
 

California Pro-Life Council v. Getman, 328 F.3d
 

1088 (9th Cir. 2003)............................................ 22
 

Center for Individual Freedom v. Carmouche, 449
 

F.3d 655 (5th Cir. 2006)...................................... 10
 

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987). 20-22
 

FEC v. Massachusetts Citizens for Life, 479 U.S.
 

238 (1986)........................................................ 9, 18
 

FEC v. Wisconsin Right to Life, 127 S.Ct. 2652
 

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

Koerber v. FEC, No. 08-39 (E.D. N.C. Oct. 29, 2008)


. .............................................................................. 1
 

Marks v. United States, 430 U.S. 188 (1977) . .......... 1
 

McConnell v. FEC, 540 U.S. 93 (2003). ... 9-11, 14-15,
 

20, 22
 

(ii) 
North Carolina Right to Life v. Leake, 525 F.3d 

274 (4th Cir. 2008).......................................... 5, 13 

Constitution, Statutes, Regulations & Rules 

2 U.S.C. § 431(17)....................................................... 9
 

2 U.S.C. § 434(f)(3). .................................................. 15
 

Bipartisan Campaign Reform Act. ........................ 1, 5
 

Federal Election Campaign Act................................. 5
 

U.S. Const. amend. I. ................................................. 3
 

U.S. Const. art. I, § 4.................................................. 4
 

Other Authorities 

The American Heritage Dictionary of the English
 

Language (4th ed. 2000). .................................... 18
 

James Bopp, Jr. & Richard E. Coleson, Distinguishing “Genuine” from “Sham” in Grassroots Lobbying: Protecting the Right to Petition During Elections, 29 Camp. L. Rev. 353 (2007). ................... 16
 

(iii) 
 

 

 

 

 

 

 

 

Statement of Interest1 

The Committee for Truth in Politics, Inc. (“CTP”) is

a nonstock, nonprofit North Carolina corporation that

advocates for limited government and honesty in government. Before the 2008 general election, it broadcast

an electioneering communication about then-candidate

Barack Obama’s record on abortion. It was protected 

2 from the Prohibition under WRTL II’s “appeal to vote” 

test, FEC v. Wisconsin Right to Life, 127 S.Ct. 2652, 

3 2667, 2670 (2007). CTP complied with the Disclaimer

Requirement but did not comply with the Reporting

Requirement and challenged the Disclosure Requirements as applied to electioneering communications 

protected by WRTL II’s appeal-to-vote test. The district 

court denied a preliminary injunction. See Koerber v. 

FEC, No. 08-39 (E.D. N.C. Oct. 29, 2008), appeal docketed, No. 08-2257 (4th Cir. Nov. 13, 2008). CTP is at 

1 No party counsel authored any of this brief (CTP counsel only represented Appellant until November 26, 2008),

and no party, party counsel, or person other than CTP paid

for brief preparation and submission. The parties consented

to the filing of this brief. 

2 CTP follows the Jurisdictional Statement terminology, 

id. at 5, for Bipartisan Campaign Reform Act (“BCRA”) 

§ 201 (“Reporting Requirement”), § 311 (“Disclaimer Requirement”) (these requirements together are the “Disclosure Requirements”), and § 203 (“Prohibition”). 

3 This opinion (“WRTL II”), by Chief Justice Roberts 

joined by Justice Alito, states the holding. See Marks v. 

United States, 430 U.S. 188, 193 (1977) (position in concurrences on narrowest grounds). 
 

 

 

2 

risk for an intrusive, burdensome, and unconstitutional investigation and enforcement proceeding. 

CTP’s counsel represented WRTL in WRTL II, and 

represented Citizens United in this case through

November 26, 2008. Counsel respectfully refer the

Court to their summary judgment briefing below (Docs. 

52, 61), as well as the Jurisdictional Statement and 

Brief Opposing Motion to Dismiss or Affirm in this 

Court, for further arguments. 

Summary of Argument 

In Buckley v. Valeo, 424 U.S. 1 (1976), this Court

determined that campaign finance laws may only

regulate communications “unambiguously related to 

the campaign of a particular federal candidate.” Id. at 

80. Because Buckley applied this threshold requirement to disclosing expenditures for communications, 

id. at 80, it has direct application to the Disclosure

Requirements, which are unconstitutional as applied

to communications that are not unambiguously campaign related. 

WRTL II’s appeal-to-vote test, 127 S.Ct. at 2667, is

the application of the unambiguously-campaign-related

principle to electioneering communications. So whether

an electioneering communication may be subjected to 

the Prohibition (at issue in WRTL II) or the Disclosure

Requirements depends on whether an “ad is susceptible of no reasonable interpretation other than as an 

appeal to vote for or against a specific candidate,” id. 

For an electioneering communication to be subject 

to interpretation “as an appeal to vote,” it must contain 

a clear plea for action urging a vote. Since it must be

assumed that the words of this test were chosen 
 

 

 

 

 

 

3 

carefully, it is decisive that the test is not whether an

ad promotes, attacks, supports, or opposes a candidate

—or whether it focuses on or criticizes a candidate— 

but whether it must be interpreted “as an appeal to 

vote.” An ad cannot be interpreted as an appeal absent 

a clear plea for action, which requires some clear

command or invitation to the hearer. And an ad cannot 

be interpreted as an appeal to vote unless the appeal 

somehow urges a vote. 

Argument 

I. Campaign-Finance Laws May Only Regulate 

Unambiguously-Campaign-Related Activity.4 

Constitutional analysis should begin with the 

Constitution, which mandates that “Congress shall

make no law . . . abridging the freedom of speech,” U.S.

Const. amend. I. This “‘guarantee has its fullest and

most urgent application precisely to the conduct of 

campaigns for political office.’” Buckley, 424 U.S. at 15 

(citation omitted). If “Congress shall make no law,”

how may government regulate election-related First 

4 Part I addresses the second of the Jurisdictional Statement’s Questions Presented. Citizens United makes the 

unambiguously-campaign-related argument. See, e.g., Brief 

for Appellant at 46 (because ads “neither expressly nor impliedly advocate the election or defeat of that candidate,” a

disclaimer “would not provide viewers with relevant 

‘electora[l] . . . information’”), 48 n.3, 51 (interest in disclosure of donors for “campaign-related speech . . . . is inapplicable” to ads that neither “expressly nor impliedly advocate”). Because the unambiguously-campaign-related principle addresses a threshold requirement, see infra, the Court 

need go no further to decide this case. 
 

 

 

 

 

 

 

 

 

4 

Amendment activities? Buckley identified the answer 

as “[t]he constitutional power of Congress to regulate 

federal elections.” Id. at 13 (footnote omitted) (emphasis 

added) (citing U.S. Const. art. I, § 4). 

This authority is self-limiting. If government regulates speech and association not clearly related to elections, it exceeds its authority. Key to Buckley’s analysis

in the expenditure-disclosure context is its question of 

whether “the relation of the information sought to the 

purpose of the Act [regulating elections] may be too remote,” and, therefore, “impermissibly broad,” id. at 80 

(emphasis added). So this Court requires that government may only regulate First Amendment activity 

where the activity is “unambiguously related to the 

campaign of a particular federal candidate,” id. at 80 

(emphasis added), i.e., “unambiguously campaign re5 lated,” id. at 81. After this first-principle threshold is

5 The Fourth Circuit also identified this need to “cabin” 

campaign-finance regulations: 

Buckley . . . recognized that legislatures have . . .

power to regulate elections . . . and . . . may establish standards that govern the financing of political

campaigns. In particular, the Court identified “limit­

[ing] the actuality and appearance of corruption” as

an important governmental interest served by campaign finance regulation. . . . The Court simultaneously noted, however, that campaign finance restrictions “operate in an area of the most fundamental

First Amendment activities,” and thus threaten to 

limit ordinary “political expression.” . . . Buckley . . . 

recognized the need to cabin legislative authority

over elections in a manner that sufficiently safeguards vital First Amendment freedoms. It did so by 
 

 

 

 

 

 

 

 

 

5 

met, any regulation must still survive “exacting 

scrutiny.” See id. at 44-48 (imposing express-advocacy

construction to protect ordinary political speech, then

applying exacting scrutiny), 64 (requiring “exacting 

scrutiny” and “also . . . ‘substantial relation’ between 

the governmental interest and the information required to be disclosed” (emphasis added) (citations

omitted)), 80-81 (employing express-advocacy construction to satisfy unambiguously-campaign-related principle, then applying exacting scrutiny). 

demarcating a boundary between regulable election-related activity and constitutionally protected 

political speech: after Buckley, campaign finance

laws may constitutionally regulate only those actions that are “unambiguously related to the campaign of a particular . . . candidate.” . . . This is because only unambiguously campaign related communications have a sufficiently close relationship to the

government’s acknowledged interest in preventing

corruption to be constitutionally regulable. 

North Carolina Right to Life v. Leake, 525 F.3d 274, 281 

(4th Cir. 2008). 

The need to cabin congressional and FEC authority to

regulate ordinary political speech is especially evident in 

the present case, where the Federal Election Commission 

argued below that, under the Federal Election Campaign 

Act and the Bipartisan Campaign Reform Act, “the government’s interest in providing information to the public extends beyond speech about candidate election campaigns to 

encompass activity that attempts to sway public opinion or 

action on the specified issues.” See Doc. 61 (quoting Doc. 55) 

(emphasis added). 
 

 

 

6 

Buckley employed two tests to implement the

unambiguously-campaign-related principle. First, to

implement the requirement for PAC status, this Court

created the major-purpose test for “political committees”: 

To fulfill the purposes of the Act [i.e., regulating

elections] they need only encompass organizations that are under the control of a candidate or 

the major purpose of which is the nomination or

election of a candidate. Expenditures of candidates and of “political committees” so construed

can be assumed to fall within the core area 

sought to be addressed by Congress. They are, 

by definition, campaign related. 

Id. at 79 (emphasis added). Second, to implement the

unambiguously-campaign-related requirement as to

non-PAC expenditures, this Court imposed the expressadvocacy test, i.e., whether a communication contains

explicit words expressly advocating the election or 

defeat of a clearly identified candidate, id. at 44, 80. 

“This reading is directed precisely to that spending 

that is unambiguously related to the campaign of a particular federal candidate.” Id. at 80 (emphasis added).

“[A]s construed, [the disclosure requirement] bears a

sufficient relationship to a substantial governmental

interest. As narrowed, [it] does not reach all partisan

discussion for it only requires disclosure of those 

expenditures that expressly advocate a particular 

election result.” Id. It “shed[s] the light of publicity on 

spending that is unambiguously campaign related.” Id. 

at 81 (emphasis added). 

Because Buckley expressly applied this first principle to expenditure disclosure, id. at 80, it has direct 
 

 

7 

application here. But Buckley applied the unambiguously-campaign-related principle in four contexts: (a) 

“expenditure” limitations, id. at 42-44; (b) “political 

committee” (“PAC”) status and disclosure, id. at 79; (c) 

non-PAC disclosure of “contributions” and independent 

“expenditures,” id. at 79-81; and (d) “contributions,” id. 

at 23 n.24, 78 (“So defined, ‘contributions’ have a sufficiently close relationship to the goals of the Act, for

they are connected with a candidate or his campaign.”). 

Buckley also anchored the need for the unambiguously-campaign-related principle in another constitutional first principle, i.e., the fact that “[i]n a republic

. . . the people are sovereign” and “[d]iscussion of public

issues and debate on the qualifications of candidates

are integral to the operation of the system of government established by our Constitution,” id. at 14. 

Buckley noted a dissolving-distinction problem that

threatens to interfere with the People’s debate in their

sovereign, self-governing role, which problem requires

a bright line—between (a) “discussion of issues and

candidates” and (b) “advocacy of election or defeat of

candidates”—to protect ordinary political speech: 

[T]he distinction between discussion of issues 

and candidates and advocacy of election or defeat 

of candidates may often dissolve in practical

application. Candidates, especially incumbents,

are intimately tied to public issues involving

legislative proposals and governmental actions.

Not only do candidates campaign on the basis of

their positions on various public issues, but

campaigns themselves generate issues of public

interest. 
 

 

 

 

8 

Id. at 42 (emphasis added). The Court elaborated on

the necessity of a bright line between (a) “discussion,

laudation, [and] general advocacy” and (b) “solicitation”: 

[W]hether words intended and designed to fall

short of invitation would miss that mark is a 

question both of intent and of effect. No speaker,

in such circumstances, safely could assume that

anything he might say upon the general subject

would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in

these circumstances wholly at the mercy of the

varied understanding of his hearers and consequently of whatever inference may be drawn

as to his intent and meaning. [¶] Such a distinction offers no security for free discussion. In

these conditions it blankets with uncertainty

whatever may be said. It compels the speaker to

hedge and trim. 

Id. at 43 (emphasis added). 6 Buckley cited this dissolving-distinction problem immediately before its first

imposition of the express-advocacy construction, 424

U.S. at 42-44, so in its reference to the “vagueness” of 

the “expenditure” definition, id., it also had in mind 

the overbreadth that results from violation of the 

unambiguously-campaign-related principle. Buckley

expressly articulated the overbreadth concern when it 

6 WRTL II reiterated the need for bright-line speech 

protection based on this dissolving-distinction problem. See 

127 S.Ct. at 2659, 2669. 
 

 

 

 

 

 

 

 

9 

imposed the express-advocacy construction a second

time “[t]o insure that the reach of [the expenditure disclosure provision] [wa]s not impermissibly broad.” Id. 

at 80 (emphasis added). 

In FEC v. Massachusetts Citizens for Life, 479 U.S. 

238 (1986) (“MCFL”), this Court again recognized and

applied the unambiguously-campaign-relatedprinciple. 

MCFL applied this first principle to the prohibition on

corporate and union independent expenditures7 at 2 

U.S.C. § 441b. 479 U.S. at 249. The Court made clear

that it was imposing the construction because of the 

dissolving-distinction overbreadth problem, id., and 

the consequent need for a bright line “to distinguish 

discussion of issues and candidates from more pointed 

exhortations to vote for particular persons,” id. (emphasis added). MCFL also reiterated the major-purpose

test, which implements the unambiguously-campaignrelated principle as to PAC status. Id. at 253, 262. 

McConnell declared “the express advocacy restriction . . . an endpoint of statutory interpretation, not a 

first principle of constitutional law.” McConnell v. FEC, 

540 U.S. 93, 190 (2003). But the express-advocacy construction was created to implement the unambiguously-campaign-related principle, which is a first principle 

of constitutional law. McConnell recognized this by 

quoting Buckley’s explanation that the express-advocacy construction was done “‘[t]o insure that the reach’ of 

the disclosure requirement was ‘not impermissibly 

broad.’” 540 U.S. at 191 (emphasis added) (quoting 

7 An “independent expenditure” is now an express-advocacy communication not coordinated with a candidate. 2

U.S.C. § 431(17). 
 

 

 

 

 

 

10 

Buckley, 424 U.S. at 80). McConnell also recognized the

unambiguously-campaign-related principle when it

stated that “[i]n narrowly reading the FECA provisions 

in Buckley to avoid problems of vagueness and overbreadth, we nowhere suggested that a statute that was 

neither vague nor overbroad would be required to toe 

the same express advocacy line.” Id. at 192 (emphasis

added). So where a restriction on First Amendment 

liberties is vague or overbroad (e.g., for regulating

activity not unambiguously campaign related), it must 

toe the express advocacy line, 8 or its functional 

equivalent in the electioneering communication context 

as established by WRTL II’s appeal-to-vote test. 127 

S.Ct. at 2667. McConnell’s facial upholding of the 

8 Since McConnell, several courts have embraced the 

express advocacy construction as an indispensable tool in

dealing with vague or overbroad provisions. For example, 

the Ninth Circuit in American Civil Liberties Union of Nevada v. Heller, 378 F.3d 979, 985 (9th Cir. 2004), followed

the Sixth Circuit in endorsing the express advocacy test as

the appropriate tool where a provision is vague and 

overbroad: 

Nevertheless, as stated recently by the Sixth Circuit, McConnell “left intact the ability of courts to

make distinctions between express advocacy and

issue advocacy, where such distinctions are necessary to cure vagueness and over-breadth in statutes

which regulate more speech than that for which the

legislature has established a significant governmental interest.” Anderson v. Spear, 356 F.3d 651, 664­

65 (6th Cir. 2004). 

See also Center for Individual Freedom v. Carmouche, 449 

F.3d 655 (5th Cir. 2006). 
 

 

 

 

 

 

 

 

 

 

 

11 

electioneering communication Prohibition only “to the

extent that [an ad is] the functional equivalent of

express advocacy,” 540 U.S. at 206, also reaffirms the

unambiguously-campaign-related principle because it 

recognizes that only true equivalents to strictly-defined 

express advocacy may be regulated. 9 McConnell also 

expressly recognized the existence of “issue advocacy,”

which it described as “‘discussion of political policy

generally or advocacy of the passage or defeat of 

legislation,’” id. at 205 (quoting Buckley, 424 U.S. at 

48), and of “genuine issue ads” that likely lay beyond 

Congress’ ability to regulate. Id. at 206 n.88. 

WRTL II applied the unambiguously-campaignrelated principle to eliminate overbreadth in the regulation of electioneering communications when it stated

its test for functional equivalence10: “[A]n ad is the

functional equivalent of express advocacy only if the ad

is susceptible of no reasonable interpretation other

than as an appeal to vote for or against a specific 

9 McConnell unequivocally recognized that express advocacy itself requires “magic words.” See id. at 217 (requiring

political parties to choose between coordinated expenditures

and express-advocacy independent expenditures “forced

[them] to forgo only . . . magic words”). 

10 The “functional equivalent of express advocacy” is not 

a type of express advocacy, so a functional-equivalence test

may not be used to define express advocacy. Nor is there

any free-floating functional-equivalence test in campaignfinance law because McConnell used the concept only in the

electioneering-communication context. 540 U.S. at 206. 

Even in that context, it is replaced by WRTL II’s appeal-tovote test, which now decides what is “the functional equivalent of express advocacy.” 127 S.Ct. at 2667. 
 

 

 

 

 

12 

candidate.” 127 S.Ct. at 2667. This appeal-to-vote test,

is the application of the unambiguously-campaignrelated principle to electioneering communications because the test mandates (a) no ambiguity (an ad must

be “susceptible of no reasonable interpretation other 

than,” id., and “in a debatable case, the tie is resolved 

in favor of protecting speech,” id. at 2669 n.7), and (b)

a candidate-campaign-related message (“as an appeal 

to vote for or against a specific candidate,” id. at 

2667).11, 12 

11 That the appeal-to-vote test is the implementation of

the unambiguously-campaign-related principle is also clear 

from WRTL II’s reaffirmation that the dissolving-distinction 

problem, see supra, requires speech protection, not restriction, 127 S.Ct. at 2659, 2669. WRTL II similarly reaffirmed

that “‘[t]he Government may not suppress lawful speech as

the means to suppress unlawful speech. Protected speech

does not become unprotected merely because it resembles 

the latter. The Constitution requires the reverse.’” Id. at 

2670 (citation omitted). Doing otherwise “‘turns the First 

Amendment upside down.’” Id. (citation omitted). 

12 The Fourth Circuit has recognized that the unambiguously-campaign-related principle was applied in WRTL II, 

and that only two types of communications are recognized

as meeting this first principle: 

Pursuant to their power to regulate elections, legislatures may establish campaign finance laws, so

long as those laws are addressed to communications

that are unambiguously campaign related. The Supreme Court has identified two categories of communication as being unambiguously campaign related.

First, “express advocacy,” defined as a communication that uses specific election-related words. Sec­
 

 

 

 

 

 

 

13 

WRTL II used its appeal-to-vote test to determine

which electioneering communications may be subjected

to the Prohibition, but since the test determines which 

electioneering communications are unambiguously

campaign related, it should also determine which electioneering communications may be subjected to the

Disclosure Requirements. The unambiguously-campaign-related principle was articulated and applied in 

the expenditure-disclosure context in Buckley. 424 U.S. 

at 80. 

Moreover, WRTL II’s analysis turned on the nature

of the communication (which has broad ramifications),

not the nature of WRTL (which would apply only in the

Prohibition context). This Court could have ruled for

WRTL based on (1) the nature of WRTL, (2) the nature

of the funds used, or (3) the nature of the ads. 13 A 

ond, “the functional equivalent of express advocacy,”

defined as an “electioneering communication” that

“is susceptible of no reasonable interpretation other

than as an appeal to vote for or against a specific

candidate.” This latter category . . . has the potential

to trammel vital political speech, and . . . warrants

careful judicial scrutiny. 

Leake, 525 F.3d at 282-83. Only these carefully-defined categories “struck [the proper] balance” and “ensured that potential speakers would have clear notice as to what communications could be regulated, ensuring that political expression would not be chilled.” Id. at 284. 

13 All three bases were argued. The nature of WRTL was 

argued in the Brief of Family Research Council, Free Market 

Foundation, and Home School Legal Defense Association as 

Amici Curiae in Support of Appellee, WRTL II, 127 S.Ct. 

2652, prepared by the Stanford Constitutional Law Center, 
 

 

 

 

 

 

 

 

14 

decision based on the nature of WRTL or of its funds 

would necessarily have addressed the applicability of

the corporate-form interest, i.e., whether there could be 

a prohibition. 14 WRTL II’s decision based on the nature 

of the ads addresses the proper scope of the electioneering communication, i.e., are these ads the functional

equivalent of express advocacy, which is unambiguously campaign related? WRTL argued that its ads

were not the functional equivalent of express advocacy. 

This Court agreed. Even when WRTL II addressed the 

corporate-form interest, it did so based on the nature

of WRTL’s ads, not the nature of WRTL: “We hold that 

the interest recognized in Austin [v. Mich. State 

Chamber of Commerce, 494 U.S. 652 (1990),] as justifying regulation of corporate campaign speech and exwhich argued that all nonprofits should be exempted from

the electioneering communication prohibition because the

government had no corporate-form interest as applied to

nonprofits. The nature of the funds that WRTL proposed to

use for its ads, if necessary to obtain judicial relief, was

raised in Count II of WRTL’s complaint, which offered to

use funds from a separate bank account containing only

funds raised for the purpose from individuals, which option

would have eliminated the corporate-form interest. 

WRTL II did not provide a narrow test limited to these

options or the special context of grassroots lobbying, although that is what WRTL proposed. The Court should provide similarly comprehensive guidance in the present case

in light of the core speech, association, and self-governance

liberties and principles at issue. 

14 Only corporations (and unions for parity) are prohibited from making electioneering communications, based on 

the corporate-form interest. See McConnell, 540 U.S. at 205. 
 

 

 

 

 

 

15 

tended in McConnell to the functional equivalent of 

such speech has no application to issue advocacy of the 

sort engaged in by WRTL.” WRTL II, 127 S.Ct. at 2673 

(emphasis added). So although WRTL II never construed the electioneering-communication definition (2

U.S.C. § 434(f)(3)), its analysis went to the permissible 

scope of regulable electioneering communications, employing the unambiguously-campaign-related principle.15 Since that first principle is not limited to the 

Prohibition context, and governs the expendituredisclosure context, Buckley, 424 U.S. at 80, there is no 

justification for limiting WRTL II’s appeal-to-vote test

for regulable electioneering communications to the

Prohibition context. All electioneering-communication

regulation must be limited to that permissible scope. 

Finally, it must be noted that what WRTL II called 

constitutionally-protected “political speech” or “issue 

advocacy,” see, e.g., 127 S.Ct. at 2659, does not require

focus on current legislative or administrative branch

issues. The appeal-to-vote test contains no requirement

that the communication focus on legislative issues in

order to be protected, only that it “may reasonably be

interpreted as something other than as an appeal to 

vote for or against a specific candidate,” id. at 2670. 

WRTL II did observe, in applying its appeal-to-vote 

15 WRTL II did not construe phrases of the “electioneering communication” definition because McConnell decided 

that the “‘electioneering communication’ [definition] raises

none of the vagueness concerns that drove our analysis in

Buckley,” 540 U.S. at 194, and upheld the provisions facially, id. at 201-02, 207, and because there were no vague 

phrases such as Buckley construed to require express advocacy, as McConnell noted, id. at 191 (citations omitted). 
 

 

 

 

 

 

 

 

 

 

 

 

16 

test to grassroots lobbying, that WRTL’s communications focused on legislative issues. Id. at 2667. But 

making that a requirement for the appeal-to-vote test

or for qualifying as protected “political speech” confuses a test with the fact-bound application of the 

test.16 To qualify as protected “political speech,” a 

communication needs only to be “speech about public

issues more generally, or ‘issue advocacy,’ that mentions a candidate for federal office,” id. at 2659, or to 

“convey[] information and educate[],” id. at 2667, or to 

be a “discussion of issues and candidates” that falls 

short of express “advocacy of election or defeat of 

candidates,” id. at 2669 (quoting Buckley, 424 U.S. at 

42). Since WRTL II reaffirmed “‘the fundamental rule 

of protection under the First Amendment, that a 

speaker has the autonomy to choose the content of his 

16 Moreover, WRTL II’s discussion applying its test was 

responding to arguments made by the parties and amici,

showing that even under various rejected tests WRTL’s ads

would be protected. In James Bopp, Jr. & Richard E. 

Coleson, Distinguishing “Genuine” from “Sham” in Grassroots Lobbying: Protecting the Right to Petition During Elections, 29 Camp. L. Rev. 353 (2007) (published contemporaneously with WRTL II briefing), present counsel argued, as

they did in WRTL’s briefing before this Court, for a test 

specific to grassroots lobbying. That test did require focus

on a legislative or executive branch issue, excluded mention

of an election, candidacy, a candidate’s character, and so on. 

See id. at 385-89 (“PBA Ad Test”). See also id. at 406-12 

(setting out other proposed tests). But WRTL II rejected all

tests and criteria but one: whether an ad “is susceptible of

no reasonable interpretation other than as an appeal to vote

for or against a specific candidate.” 127 S.Ct. at 2667. 
 

 

 

 

17 

own message,’” id. at 2671 (citation omitted), no restriction may be imposed on what constitutes ordinary

“political speech.” The speaker is free to engage in 

speech without restriction unless there is a constitutionally-cognizable reason and means to restrict it,

which there is not if the speech is not unambiguously

campaign related under this Court’s tests applying

that requirement. In effect, then, ordinary “political 

speech” or “issue advocacy” is defined by the absence of 

either express advocacy or WRTL II’s “appeal to vote,” 

not the presence of some topic. 

In sum, all campaign-finance regulation is subject

to the unambiguously-campaign-related principle and 

WRTL II’s appeal-to-vote test is the application of that

principle in the electioneering communication context,

so any electioneering communication protected by the

appeal-to-vote test may neither be prohibited nor 

otherwise regulated. It is protected as ordinary “political speech” or “issue advocacy.” Since Citizens United’s

ads are protected by the appeal-to-vote test, as the

FEC concedes, they are not subject to the Disclosure 

Requirements. Hillary: The Movie is also protected

from all regulation by the appeal-to-vote test because

it contains no clear plea for action urging a vote. 

II. WRTL II’s Appeal-to-Vote Test Requires a
 

Clear Plea for Action Urging a Vote.17
 

WRTL II’s appeal-to-vote test permits regulation of

an electioneering-communication ad only if it “is susceptible of no reasonable interpretation other than as 

17 Part II addresses the third of the Jurisdictional Statement’s Questions Presented. Citizens United also makes the 

present argument. See Brief for Appellant at 14, 36-37. 
 

 

18 

an appeal to vote for or against a specific candidate.”

127 S.Ct. at 2667 (emphasis added). For an ad to be

unmistakably subject to interpretation “as an appeal to

vote,” it must necessarily contain a clear plea for action

urging a vote. 

Since it must be assumed that the words of the 

appeal-to-vote test were chosen carefully, it is decisive

that the test is not whether an ad promotes, attacks,

supports, or opposes a candidate—or whether it focuses

on or criticizes a candidate—but whether the ad must 

be interpreted “as an appeal to vote.” An appeal is “[a]n

earnest or urgent request, entreaty, or supplication.” 

The American Heritage Dictionary of the English Language (4th ed. 2000). So to constitute an appeal to vote, 

an ad must clearly ask or command the hearer to do

some action. And the ad cannot be interpreted as an 

appeal to vote unless the action solicited has to do with 

voting for or against a candidate. 

This necessary focus on an appeal to vote is derived 

from the precedents. The dissolving-distinction problem that Buckley and WRTL II recognized as requiring 

a bright, speech-protective line, see supra at 7-8, 12 

n.11, is about how to distinguish (a) “discussion of 

issues and candidates” from “advocacy of election or defeat of candidates,” Buckley, 424 U.S. at 42 (emphasis

added); (b) “discussion, laudation, [and] general advocacy” from “solicitation,” id. at 43; and (c) “discussion 

of issues and candidates from more pointed exhortations to vote for particular persons,” MCFL, 479 U.S. 

at 249. As the italicized terms indicate, what had to be 

isolated was express advocacy/solicitation/exhortation

for a vote for or against a candidate. Candidates and

issues could be freely discussed together, and candi­
 

 

 

19 

dates could be focused on and lauded or criticized, so 

long as there was no appeal to vote. So when WRTL II 

required that an electioneering communication could

only be regulated if it must be interpreted “as an 

appeal to vote,” WRTL II, 127 S.Ct. at 2667, 2670, 

WRTL II was following precedent and recognizing that

only an unmistakable appeal to vote would be unambiguously campaign related. 

WRTL II expressly held that thisdissolving-distinction problem may not be used to quash the very intermingled discussion of issues and candidates that is at 

issue in Hillary: “Discussion of issues cannot be suppressed simply because the issues may also be 

pertinent in an election.” Id. at 2669. And it elaborated 

the point that the dissolving-distinction is a reason to

protect, not restrict, free speech: “‘The Government

may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not

become unprotected merely because it resembles the 

latter. The Constitution requires the reverse.’” Id. at 

2670 (citation omitted). 

The fact that the appeal-to-vote test requires a clear

plea for action urging a vote is also evident from the 

manner in which the test was to be applied. WRTL II 

required that the search for this unmistakable “appeal 

to vote” must focus on the language of the communication itself, i.e., the test “must be objective, focusing on 

the substance of the communication rather than amorphous considerations of intent and effect.” Id. at 2666 

(emphasis added). This focus on the actual words of the 

communication is also required by WRTL II’s rejection 

of reliance on “contextual factors,” id. at 2669. This 

objective determination focused on the actual words 
 

 

 

 

20 

used is only possible where normal rules of grammar

are applied to determine if there is in the words used

a clear plea for action that urges a vote for or against

a candidate.18 

This understanding of the appeal-to-vote test does

not make the test a “magic words” test. It is instructive

to compare and contrast the appeal-to-vote test with 

the Ninth Circuit’s attempt, in FEC v. Furgatch, 807 

F.2d 857 (9th Cir. 1987), to frame an express-advocacy

test that went beyond the magic words. Of course, 

McConnell made it clear that express advocacy requires “magic words,” so no other express-advocacy test 

is permissible and Furgatch is a dead letter for that 

purpose. 19 But Furgatch represents an effort to permit 

government regulation beyond magic words. WRTL II 

does not go beyond Furgatch and differs at several 

points. Furgatch dealt with a newspaper ad that

concluded with these words concerning President and

candidate Jimmy Carter: “It is an attempt to hide his

own record, or lack of it. If he succeeds the country will

be burdened with four more years of incoherencies, 

18 This analysis is supported by WRTL II’s repeated requirement that where there is any doubt as to whether the 

necessary unmistakable “appeal to vote” is present in the 

words of the communication then there is not an “appeal to

vote” because all doubts and debatable words are to be resolved in favor of the speaker. See id. at 2667, 2669 & n.7, 

2674. The elimination of borderline language requires that

ads contain a clear plea for action that urges a vote for or

against a candidate in order to be subject to regulation. 

19 See infra at n.9 (express advocacy requires “magic 

words”). 
 

 

 

21 

ineptness and illusion, as he leaves a legacy of 

low-level campaigning. DON’T LET HIM DO IT.” Id. at 

858. The Ninth Circuit adopted the following expressadvocacy test: 

We conclude that speech need not include any of 

the words listed in Buckley to be express advocacy . . . , but it must, when read as a whole, and

with limited reference to external events, be 

susceptible of no other reasonable interpretation 

but as an exhortation to vote for or against a

specific candidate. This standard can be broken

into three main components. First, even if it is

not presented in the clearest, most explicit

language, speech is “express” for present purposes if its message is unmistakable and 

unambiguous, suggestive of only one plausible

meaning. Second, speech may only be termed 

“advocacy” if it presents a clear plea for action, 

and thus speech that is merely informative is

not covered by the Act. Finally, it must be clear

what action is advocated. Speech cannot be

“express advocacy of the election or defeat of a

clearly identified candidate” when reasonable

minds could differ as to whether it encourages a

vote for or against a candidate or encourages the

reader to take some other kind of action. 

Id. at 863-64 (emphasis added). The Furgatch test may

fairly be called the exhortation-to-vote test because

that is precisely what it requires—albeit without any

particular magic words. And the test made clear that 

no communication could be considered “as an exhortation to vote” absent a clear plea for action that involved

voting. 
 

 

 

 

 

22 

In its appeal-to-vote test, WRTL II rejected any reliance on “external events,” requiring that the objective

words of the communication itself must be the focus. 

127 S.Ct. at 2666. Of course, an electioneering communication by definition is broadcast near an election,

identifies a candidate, and targets the candidate’s constituents, so there is a built-in relevant context. Like 

WRTL II, Furgatch mandated that the message must

be “unambiguous” and that all doubts are resolved in 

favor of the speaker. And just as WRTL II requires an 

unmistakable “appeal to vote,” Furgatch mandated “an 

exhortation to vote,” which must be a “clear plea for action” that “encourages a vote.” 20 Furgatch decided that 

“Don’t let him do it!” was just such a clear plea for action that constituted an unambiguous exhortation to 

vote without saying “vote against.” WRTL II was not 

endorsing a test going beyond Furgatch’s now-rejected

express-advocacy test, so the “appeal to vote” requirement of WRTL II’s test must be taken at least as seriously as the Ninth Circuit took its “exhortation to vote”

or “clear plea for action” requirement. Consequently, 

the WRTL II test requires some clear plea for action

urging a vote for or against a candidate for an ad to be 

unmistakably interpreted as an appeal to vote. 

20 Even before McConnell and WRTL II effectively overruled Furgatch’s express-advocacy test for “independent

expenditures,” the Ninth Circuit made clear that context

was subordinate to the actual words and that some express 

words of advocacy were required under the Furgatch test: 

“a close reading of Furgatch indicates that we presumed 

express advocacy must contain some explicit words of advocacy.” See California Pro-Life Council v. Getman, 328 F.3d 

1088, 1098 (9th Cir. 2003). 
 

 

 

 

 

 

23 

Hillary contained no clear plea for action urging a

vote for or against then-candidate Clinton. In summary-judgment briefing the FEC made no attempt to 

identify any such plea for action. See Doc.56 at 44-46 

(PDF pagination). Instead, the FEC argued a flawed 

version of WRTL II’s appeal-to-vote test. First, it 

argued that Hillary “mentions an election and candidacy.” Id. at 44. Second, it argued that Hillary “takes a 

position on a candidate’s character, qualifications, or 

fitness for office.” Id. Third, the FEC argued that “the 

movie fails to qualify for an exemption under WRTL 

because it ‘does not focus on legislative issues, or 

otherwise constitute issue advocacy.’” Id. at 45. From 

these criteria, the FEC concluded that “because Hillary

. . . is nothing but an extensive critique of Senator

Clinton’s ‘character, qualifications, and fitness for

office,’ and lacks indicia of genuine issue advocacy, the

film is . . . susceptible of no reasonable interpretation 

other than as an appeal to vote against her.” Id. at 46. 

So, the FEC concluded, “[i]t is . . . the functional equivalent of express advocacy . . . .” Id. 

This argument is flawed. As to the first assertion,

the appeal-to-vote test does not turn on mentioning an

election or candidacy. The FEC attempts to substitute 

an application of the test—in which WRTL II addressed proposed (but rejected) tests that did turn on the 

presence or absence of such a criterion, see infra at 16 

n.16—for the test itself. Such prestidigitation is 

impermissible. See infra at 15-17. 

As to the second assertion, the argument that

criticism constitutes the functional equivalent of 

express advocacy was argued and rejected in WRTL 
 

 

 

 

24 

II.

21 And the FEC has already settled two cases postWRTL II about electioneering communications that set

out candidates’ positions on an issue and praised or

criticized them for that position, which was a concession that non-criticism is not part of the appeal-to-vote 

test. See Doc. 52 at 16-17, 43-44. Moreover, the FEC 

has conceded that the ads at issue in this case meet the 

appeal-to-vote test, but the Questions Ad is clearly critical of Senator Clinton, see Jurisdictional Statement at 

8 n.3, so the FEC’s argument lacks credibility. 

As to the third assertion, protected ordinary “political speech,” or “issue advocacy,” does not require focus 

on a particular issue. See infra at 15-17. 

What the FEC was unable to do, and studiously

evaded, was to point to any clear plea for action urging 

a vote for or against Senator Clinton. Hillary did not 

even contain something like “Don’t let her do it!” So 

Hillary was protected from both the Prohibition and

the Disclosure Requirements by the appeal-to-vote test 

because it was not unambiguously related to the campaign of Senator Clinton. 

21 See Brief for Appellee, WRTL II, 127 S.Ct. 2652 (quoting and citing FEC and Intervenors’ arguments that 

WRTL’s ads were sham ads for criticizing candidate). In the 

present case, this issue was briefed and the WRTL II brief 

is quoted in Doc. 52 (summary judgment memo) at 44. 
 

 

25 

Conclusion 

The judgment of the district court should be reversed. 

Respectfully submitted, 

James Bopp, Jr., 

Counsel of Record 

Richard E. Coleson 

Clayton J. Callen

BOPP, COLESON & BOSTROM 

1 South 6th Street 

Terre Haute, IN 47807-3510 

812/232-2434