No. 08-205 

IN THE

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CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION,

Appellee.

_______________ 

On Appeal 

From The United States District Court 

For The District Of Columbia 

_______________

BRIEF FOR APPELLANT 

_______________

THEODORE B. OLSON

 Counsel of Record

MATTHEW D. MCGILL

AMIR C. TAYRANI

JUSTIN S. HERRING

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 955-8500 Counsel for Appellant 
QUESTIONS PRESENTED 

1. Whether the prohibition on corporate electioneering communications in the Bipartisan Campaign Reform Act of 2002 (“BCRA”) can constitutionally be applied to a feature-length documentary film 

about a political candidate funded almost exclusively 

through noncorporate donations and made available 

to digital cable subscribers through Video On Demand. 

2. Whether BCRA’s disclaimer, disclosure, and 

reporting requirements can constitutionally be applied to advertisements for that documentary film 

that the Federal Election Commission concedes are 

beyond its constitutional authority to prohibit. 
ii 

PARTIES TO THE PROCEEDING 

AND RULE 29.6 STATEMENT 

The caption contains the names of all the parties 

to the proceeding below. 

Pursuant to this Court’s Rule 29.6, undersigned 

counsel state that Citizens United has no parent corporation and no publicly held company owns 10% or 

more of its stock. 
iii 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED ........................................i 

PARTIES TO THE PROCEEDING AND 

RULE 29.6 STATEMENT.......................................... ii 

TABLE OF AUTHORITIES.......................................vi 

OPINIONS BELOW....................................................1 

JURISDICTION ..........................................................1 

STATUTORY AND REGULATORY 

PROVISIONS INVOLVED .........................................1 

STATEMENT ..............................................................1 

SUMMARY OF ARGUMENT...................................12 

ARGUMENT .............................................................16 

I. BCRA § 203 IS UNCONSTITUTIONAL AS 

APPLIED TO THE DISTRIBUTION OF 

CITIZENS UNITED’S DOCUMENTARY FILM 

THROUGH VIDEO ON DEMAND .......................16 

A. The Government May Not 

Suppress Political Speech Except 

When Necessary To Prevent 

Corruption Or The Appearance Of 

Corruption ..............................................17 

B. No Compelling Interest Supports 

The Government’s Effort To 

Prohibit Video On Demand 

Distribution Of Citizens United’s 

Documentary Film .................................21 
iv 

1. The Government Has Failed 

To Demonstrate Any AntiCorruption Rationale For 

Prohibiting Video On Demand 

Distribution Of FeatureLength Films....................................22 

2. No Compelling Interest 

Supports The Government’s 

Effort To Suppress Political 

Speech That Is Funded 

Overwhelmingly By 

Individuals .......................................29 

C. Hillary: The Movie Is Not The 

Functional Equivalent Of Express 

Advocacy.................................................34 

II. BCRA § 201 AND BCRA § 311 ARE 

UNCONSTITUTIONAL AS APPLIED TO 

CITIZENS UNITED...........................................42 

A. The Disclaimer, Disclosure, And 

Reporting Requirements Cannot 

Survive Strict Scrutiny..........................43 

B. The Disclaimer, Disclosure, And 

Reporting Requirements Cannot 

Survive Exacting Scrutiny.....................44 

1. BCRA’s Disclaimer 

Requirements Are 

Unconstitutional As Applied 

To Citizens United...........................45 

2. BCRA’s Disclosure 

Requirements Are 

Unconstitutional As Applied 

To Citizens United...........................51 
v 

3. BCRA’s Reporting 

Requirements Are 

Unconstitutional As Applied 

To Citizens United...........................57 

CONCLUSION ..........................................................58 
vi 

TABLE OF AUTHORITIES 

Page(s) 

CASES

Ashcroft v. ACLU, 

 535 U.S. 564 (2002)................................................1

Austin v. Mich. State Chamber of 

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

 ..........................................13, 14, 19, 30, 31, 32, 33 

Broadrick v. Oklahoma, 

 413 U.S. 601 (1973).............................................42 

Brown v. Socialist Workers ’74 Campaign 

Comm., 459 U.S. 87 (1982) ..................................53 

Buckley v. Am. Constitutional Law 

Found., Inc., 525 U.S. 182 (1999)..................43, 49 

Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam) ................................ 

 ........................18, 19, 30, 44, 45, 47, 49, 51, 53, 54 

Citizens Against Rent Control v. City of 

Berkeley, 454 U.S. 290 (1981)..............................56 

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

 ............................................................30, 48, 53, 57 

FEC v. Mass. Citizens for Life, 

479 U.S. 238 (1986)..........18, 31, 32, 33, 43, 54, 55 

FEC v. Nat’l Conservative Political Action 

Comm., 470 U.S. 480 (1985) ..........................13, 17 

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

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

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978)....14, 29, 30, 31, 43, 45, 47, 55 
vii 

Fla. Star v. B.J.F., 

491 U.S. 524 (1989)..............................................52 

Hurley v. Irish-Am. Gay, Lesbian & 

Bisexual Group of Boston, 

515 U.S. 557 (1995)........................................43, 45 

McConnell v. FEC, 

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

McConnell v. FEC, 

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

(per curiam)............................19, 20, 22, 24, 25, 26 

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995)............................44, 45, 47, 55 

Miami Herald Publ’g Co. v. Tornillo, 

418 U.S. 241 (1974)..............................................50 

N.C. Right to Life, Inc. v. Leake, 

525 F.3d 274 (4th Cir. 2008)................................52 

NAACP v. Alabama, 

357 U.S. 449 (1958)........................................53, 54 

NAACP v. Button, 

371 U.S. 415 (1963)..............................................35 

Republican Party v. White, 

536 U.S. 765 (2002)..............................................28 

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

487 U.S. 781 (1988)..................................43, 45, 49 

Rumsfeld v. Forum for Academic & 

Institutional Rights, Inc., 

547 U.S. 47 (2006)................................................49 

Talley v. California, 

362 U.S. 60 (1960)................................................46 

United States v. Grace, 

461 U.S. 171 (1983)..............................................27 
viii 

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

546 U.S. 410 (2006)..........................................4, 42 

CONSTITUTIONAL PROVISIONS

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

STATUTES

2 U.S.C. § 434(f)...............................................3, 56, 57 

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

2 U.S.C. § 434(f)(3)(C) ...............................................27 

2 U.S.C. § 441b(b)(2) .............................................2, 20 

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

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

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

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

REGULATIONS

11 C.F.R. § 100.29(b)(3)(ii)....................................2, 27 

11 C.F.R. § 100.29(c)(2) .............................................38 

11 C.F.R. § 104.20 .................................................3, 56 

11 C.F.R. § 114.10 .....................................................30 

11 C.F.R. § 114.10(d)(2)...............................................3 

11 C.F.R. § 114.15 .......................................................4 

11 C.F.R. § 114.15(b)...................................................4 

11 C.F.R. § 114.15(c) ...................................................5 

11 C.F.R. § 114.15(f)....................................................5 
ix 

OTHER AUTHORITIES

Joe Biden, Promises to Keep: On Life and 

Politics (2008).......................................................36 

CNN, McCain Health Scare (aired July 

28, 2008), transcript at

http://transcripts.cnn.com/ 

TRANSCRIPTS/0807/28/ec.01.html....................39 

E.D. Dover, Images, Issues, and Attacks

(2006)....................................................................23 

Marion Just et al., Thirty Seconds or 

Thirty Minutes: What Viewers Learn 

from Spot Advertisements and Candidate Debates, 40 J. Comm. 120 (1990) ................24 

Wes Simpson, Video Over IP: A Practical 

Guide to Technology and Applications

(2006)................................................................9, 25
BRIEF FOR APPELLANT 

OPINIONS BELOW 

The opinion of the three-judge district court denying appellant’s motions for a preliminary injunction is reported at 530 F. Supp. 2d 274. J.A. 195a. 

The opinion of the three-judge district court granting 

appellee’s motion for summary judgment is unreported. Id. at 261a. 

JURISDICTION 

The judgment of the three-judge district court 

was entered on July 18, 2008. The notice of appeal 

was filed on July 24, 2008. The jurisdictional statement was filed on August 15, 2008, and probable jurisdiction was noted on November 14, 2008. This 

Court has jurisdiction under § 403(a)(3) of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. 

L. No. 107-155, 116 Stat. 81, 113-14. 

STATUTORY AND REGULATORY 

PROVISIONS INVOLVED 

The pertinent provisions of BCRA and BCRA’s 

implementing regulations are reproduced in the appendix to this brief. 

STATEMENT 

“Congress shall make no law . . . abridging the 

freedom of speech.” U.S. Const. amend. I. This constitutional injunction evidently was not in the forefront of Congress’s mind when it enacted BCRA, a 

statute that imposes sweeping restrictions on core 

political speech. But, presumably, that statute did 

not diminish “our profound national commitment to 

the free exchange of ideas.” Ashcroft v. ACLU, 535 

U.S. 564, 573 (2002) (internal quotation marks omit-
2

ted). As this Court recently reiterated, that commitment requires that a court “ensure that a compelling interest supports each application of a statute 

restricting speech.” FEC v. Wisc. Right to Life, Inc., 

127 S. Ct. 2652, 2671 (2007) (“WRTL II”) (opinion of 

Roberts, C.J.). In holding that BCRA can constitutionally be applied to a documentary film presenting 

a critical biographical assessment of a political candidate and to television advertisements promoting 

that film, the three-judge district court failed to meet 

this most basic of First Amendment requirements. 

1. BCRA imposed far-reaching restrictions on 

the right of corporations to fund political speech in 

the time period preceding a federal election. Most 

significantly, BCRA § 203 prohibits corporations 

from using their general treasury funds to finance 

“electioneering communications” (2 U.S.C. 

§ 441b(b)(2)), which BCRA and its implementing 

regulations define as “any broadcast, cable, or satellite communication which refers to a clearly identified candidate for Federal office”; is made 60 days before a general election for the office sought by the 

candidate or 30 days before a primary election; and, 

in the case of a presidential candidate, “[c]an be received by 50,000 or more persons anywhere in the 

United States” (or, in the pre-primary period, in the 

State where the primary is being held). Id.

§ 434(f)(3)(A)(i); 11 C.F.R. § 100.29(b)(3)(ii). 

BCRA’s prohibition on corporate electioneering 

communications does not extend to communications 

funded through a political action committee (“PAC”) 

that receives donations only from a corporation’s 

stockholders, its executive and administrative personnel, and their families. 2 U.S.C. § 441b(b)(2)(C), 

(b)(4)(A). The prohibition is also inapplicable to ideological, nonstock, nonprofit corporations that are not 
3

established by for-profit corporations and that do not 

accept contributions from for-profit entities. 11 

C.F.R. § 114.10(d)(2). 

BCRA further established extensive reporting, 

disclosure, and disclaimer requirements for all electioneering communications, whether funded by a 

corporation, PAC, or individual. Section 201 of 

BCRA imposes reporting and disclosure requirements on any person who spends more than $10,000 

in a calendar year to produce or air an electioneering 

communication. 2 U.S.C. § 434(f). Within 24 hours 

of each statutory “disclosure date,” the person funding the communication is required to submit a 

statement to the Federal Election Commission 

(“FEC”) that identifies itself as responsible for funding the communication and, in the case of a corporation or union, that discloses the name and address of 

all persons who donated $1,000 or more to the corporation or union since the beginning of the preceding 

calendar year for the purpose of funding electioneering communications. Id.; 11 C.F.R. § 104.20. In addition to these reporting and disclosure requirements, § 311 of BCRA requires electioneering communications to include the disclaimer that “_____ is 

responsible for the content of this advertising.” 2 

U.S.C. § 441d(d)(2). The disclaimer must be spoken 

during the advertisement and, for television advertisements, must appear on the screen “in a clearly 

readable manner” for at least four seconds. Id. The 

advertisement must also include the name, as well 

as the address, telephone number, or web address, of 

the person who funded the electioneering communication and state that the communication was not approved by any candidate or candidate’s committee. 

Id. § 441d(a)(3). 
4

This Court has already had several occasions to 

consider the constitutionality of various aspects of 

BCRA. In McConnell v. FEC, 540 U.S. 93 (2003), the 

Court upheld BCRA’s prohibition on corporate electioneering communications, as well as its reporting, 

disclosure, and disclaimer requirements, against a 

facial First Amendment challenge. The Court made 

clear, however, in Wisconsin Right to Life, Inc. v. 

FEC, 546 U.S. 410 (2006) (“WRTL I”) (per curiam), 

that, “[i]n upholding” the prohibition on corporate 

electioneering communications “against a facial challenge, [McConnell] did not purport to resolve future 

as-applied challenges” to the statute. Id. at 411-12. 

The Court decided such an as-applied challenge in 

WRTL II, and concluded that the prohibition on corporate electioneering communications can only be 

constitutionally applied to advertisements that are 

express advocacy or the functional equivalent of express advocacy. 127 S. Ct. at 2667 (opinion of Roberts, C.J.). “[A] court should find that an ad is the 

functional equivalent of express advocacy,” the Court 

explained, “only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote 

for or against a specific candidate.” Id. 

In response to WRTL II, the FEC promulgated 

regulations that purport to implement the decision’s 

holding. 11 C.F.R. § 114.15. Those regulations establish a safe harbor for several categories of electioneering communications—including advertisements that propose a commercial transaction and do 

“not mention any election, candidacy, political party, 

opposing candidate, or voting by the general public” 

and do “not take a position on any candidate’s or officeholder’s character, qualifications, or fitness for 

office” (id. § 114.15(b))—and also specify the factors 

that the FEC will consider when determining 
5

whether an advertisement is susceptible of no reasonable interpretation other than as an appeal to 

vote. Id. § 114.15(c). The regulations explicitly provide that BCRA’s reporting, disclosure, and disclaimer requirements remain applicable to electioneering communications that cannot be constitutionally proscribed under WRTL II’s appeal-to-vote standard. Id. § 114.15(f). 

2. Citizens United is a nonprofit membership 

corporation that has tax-exempt status under 26 

U.S.C. § 501(c)(4) as an “organization[ ] not organized for profit but operated exclusively for the promotion of social welfare.” J.A. 11a. Through a combination of education, advocacy, and grass-roots programs, Citizens United seeks to promote the traditional American values of limited government, free 

enterprise, strong families, and national sovereignty 

and security. Id. 

Citizens United has an annual budget of approximately $12 million (J.A. 11a), and is funded 

predominantly by donations from individuals who 

support Citizens United’s ideological message. Id. at 

244a, 251a-52a. Citizens United also receives a 

small portion of its funding from corporate donations. Id. 

One of the principal means through which Citizens United disseminates its political views is the 

production and distribution of feature-length documentary movies. J.A. 11a. Since 2004, Citizens 

United has produced movies on the War on Terror, 

illegal immigration, and the United Nations, among 

other political topics. Id. at 11a-12a. These movies 

have been shown in theaters across the country and 

sold on DVD by national retailers. Id. at 12a. A 

number of them have met with critical and popular 
6

success. Citizens United’s 2007 documentary film 

Rediscovering God in America, for example, was the 

top-selling historical documentary on Amazon.com 

soon after its release. Id. 

In mid-2007, Citizens United began production of 

Hillary: The Movie, a biographical documentary 

about Senator Hillary Clinton, who was then a candidate to become the Democratic Party’s nominee for 

President. J.A. 12a-13a. Although Senator Clinton’s 

candidacy was the backdrop for the 90-minute documentary, neither the movie’s narrator nor any of the 

individuals interviewed during the movie expressly 

advocated her election or defeat as President. Id. at 

13a. The movie instead presents a critical assessment of Senator Clinton’s record as a U.S. Senator 

and as First Lady in order to educate viewers about 

her political background. Id. 

The documentary focuses principally on five aspects of Senator Clinton’s political record: the Clinton Administration’s firing of the White House 

Travel Office staff (J.A. 43a); incidents of official retaliation against a woman who accused President 

Clinton of sexual harassment (id. at 57a); Senator 

Clinton’s failure to adhere to campaign finance restrictions while a candidate for U.S. Senate (id. at 

72a); her record on job-creation, health-care, and national security issues (id. at 90a, 95a, 108a); and the 

Clinton Administration’s abuse of the pardon power 

(id. at 130a). 

The movie presents a series of interviews with 

political commentators, including Robert Novak, 

Dick Morris, and Ann Coulter (J.A. 36a, 39a, 40a), 

and with individuals who have had firsthand experience with Senator Clinton. For example, the movie 

presents an in-depth interview with Billy Dale, the 
7

former director of the White House Travel Office, 

who was fired by the incoming Clinton Administration and later prosecuted for alleged criminal wrongdoing by the Clinton Justice Department. J.A. 44a54a. The movie explains that Mr. Dale was eventually acquitted of all charges against him and that the 

Clinton Administration’s handling of the Travel Office affair was condemned by an Independent Counsel investigation. Id. at 53a. 

The movie also recounts President Clinton’s decision to pardon a Puerto Rican nationalist who murdered four people and wounded 50 others in a 1975 

New York City bombing. J.A. 131a. The movie reports that the U.S. Senate later voted 95-2 to condemn President Clinton’s decision to pardon the 

bomber while his wife was seeking the Puerto Rican 

community’s support for her Senate bid. Id. at 142a. 

Citizens United’s production of Hillary and proposed advertising campaign for the movie were financed with its general treasury funds. The more 

than $1 million in donations it received to fund the 

movie came almost exclusively from individuals and 

other noncorporate persons. J.A. 244a, 251a-52a. Of 

the 25 donations of $1,000 or more made to fund the 

movie, only two—totaling just $2,000—came from 

for-profit corporations. Id. at 252a. 

3. Hillary was released in January 2008 and 

shown in theaters in six cities that month. J.A. 

212a-13a. It was simultaneously made available for 

purchase on DVD through Citizens United’s website 

and commercial retailers. Id. at 213a. The movie’s 

release was accompanied by the publication of a companion book, Hillary: The Politics of Personal Destruction. Id. at 13a. 
8

To promote the movie, Citizens United produced 

three advertisements—two of ten seconds’ duration 

and one of thirty seconds’ duration—that it intended 

to run on broadcast and cable television. J.A. 15a.1 

Citizens United also received an offer from NCC, 

a company owned by three of the Nation’s largest cable companies, to make Hillary available through 

Video On Demand to households that subscribe to 

digital cable television. J.A. 255a. Video On Demand allows digital cable subscribers to choose movies and other entertainment from an extensive list of 

 

1 The script for the television advertisement “Wait” reads: 

 “If you thought you knew everything about Hillary Clinton 

. . . wait ’til you see the movie.” 

[Visual Only] Hillary: The Movie. 

[Visual Only] www.hillarythemovie.com 

 The script for “Pants” reads: 

 “First, a kind word about Hillary Clinton: [Ann Coulter 

Speaking & Visual] She looks good in a pant suit. 

“Now, a movie about everything else.” 

[Visual Only] Hillary: The Movie. 

[Visual Only] www.hillarythemovie.com 

 The script for “Questions,” the thirty-second advertisement, 

reads: 

 “Who is Hillary Clinton? 

[Jeff Gerth Speaking & Visual] “[S]he’s continually trying to 

redefine herself and figure out who she is . . . . 

[Ann Coulter Speaking & Visual] “[A]t least with Bill Clinton 

he was just good time Charlie. Hillary’s got an agenda . . . . 

[Dick Morris Speaking & Visual] “Hillary is the closest thing we 

have in America to a European socialist . . . . 

“If you thought you knew everything about Hillary Clinton . . . 

wait ’til you see the movie.” 

[Visual Only] Hillary: The Movie. In theaters [on DVD] January 2007. 

[Visual Only] www.hillarythemovie.com. J.A. 26a-27a. 
9

programming options that are generally available 24 

hours a day and not subject to preset air times. 

Video On Demand thus enables viewers to watch 

what they want, when they want, and further enhances viewers’ freedom by enabling them to pause, 

rewind, and restart programming. See Wes Simpson, 

Video Over IP: A Practical Guide to Technology and 

Applications 377-80 (2006). 

A digital cable subscriber can review the available programming options by selecting the Video On 

Demand feature on his cable converter box or remote 

control. When the subscriber orders a movie, a compressed data signal is transmitted from the cable 

company’s digital server to the subscriber’s set-top 

converter box, which decompresses the data signal, 

enabling the movie to be viewed on the television 

connected to the subscriber’s converter box. That 

electronic signal is sent only to the subscriber who 

requests the Video On Demand program. The requested programming therefore can only be viewed 

by the subscriber who ordered it, and not by any 

other cable-system subscriber. If multiple subscribers order the same movie, then the cable company 

must transmit a separate electronic signal to each 

subscriber who placed an order. See Simpson, supra, 

at 377-80. 

NCC proposed to include Hillary as one of the 

programs in its Elections ’08 Video On Demand feature, which made political programming available 

free of charge to digital cable subscribers interested 

in using their television “(i) to educate themselves on 

the candidates and the issues, and (ii) to make their 

voting decisions.” J.A. 258a. NCC proposed a fee of 

$1.2 million, or one cent per Video-On-Demandenabled household per week, to make Hillary available through Video On Demand. Id. at 256a. 
10

4. Because Senator Clinton was a candidate in 

the presidential primaries that the Democratic Party 

was holding between January and June 2008, and 

because the movie and advertisements mentioned 

Senator Clinton’s name, they potentially constituted 

“electioneering communications” within the meaning 

of BCRA. 

Citizens United filed suit against the FEC in the 

United States District Court for the District of Columbia challenging BCRA’s constitutionality as applied to the movie and advertisements. In its 

amended complaint, Citizens United explained that, 

in the absence of judicial relief, it would be unable to 

finalize its deal to distribute the movie through 

Video On Demand because the FEC considered the 

movie to be a prohibited electioneering communication under WRTL II. J.A. 19a-20a. Citizens United 

further explained that, even though the FEC had 

conceded that its television advertisements for 

Hillary were not the functional equivalent of express 

advocacy and thus could not be prohibited under 

WRTL II, it was unable to run those advertisements 

because complying with BCRA’s reporting and disclosure requirements would require Citizens United 

to reveal the identity of its donors—thereby subjecting them to potential retaliation and chilling further 

donations—and because BCRA’s disclaimer requirements would significantly impair the effectiveness of 

its 10- and 30-second advertisements. Id. at 18a-19a. 

Pursuant to BCRA § 403(a)(1), a three-judge district court was empaneled. Citizens United sought a 

preliminary injunction from that court prohibiting 

the FEC from applying BCRA’s restrictions on electioneering communications to the movie or the advertisements. Citizens United argued that, under 

WRTL II, the FEC could not constitutionally bar dis-
11

tribution of the movie through Video On Demand because the movie could reasonably be interpreted as a 

biographical documentary about Senator Clinton, 

rather than as an “appeal to vote” for or against her. 

Citizens United further argued that BCRA’s reporting, disclosure, and disclaimer requirements cannot 

be constitutionally applied to any electioneering 

communication that does not constitute express advocacy or its functional equivalent under WRTL II, 

and that these requirements therefore could not be 

applied either to the advertisements or to the movie. 

The three-judge district court concluded that 

Citizens United lacked a likelihood of success on the 

merits and denied its motion for a preliminary injunction. J.A. 209a-10a. The district court held that 

a Video On Demand broadcast of the movie “was 

within the definition of ‘electioneering communication’” set forth in BCRA and its implementing regulations (id. at 199a n.6), and that, under WRTL II, 

the FEC could constitutionally proscribe the movie’s 

broadcast. Id. at 206a. Relying on a “selection of excerpts from the movie,” the district court concluded 

that the “film’s message as a whole” was the “functional equivalent of express advocacy” because it 

“references the election and Senator Clinton’s candidacy, and it takes a position on her character, qualifications, and fitness for office.” Id. at 203a, 204a 

n.12, 206a. According to the district court, the movie 

is “susceptible of no other interpretation than to inform the electorate that Senate Clinton is unfit for 

office, that the United States would be a dangerous 

place in a President Hillary Clinton world, and that 

viewers should vote against her.” Id. at 204a. 

The district court also held that application of 

BCRA’s reporting, disclosure, and disclaimer requirements to Citizens United’s advertisements does 
12

not violate the First Amendment. J.A. 209a. The 

district court reasoned that, when McConnell sustained the reporting and disclosure requirements of 

BCRA § 201 and the disclaimer requirements of 

BCRA § 311, “it did so for the ‘entire range of electioneering communications’ set forth in the statute” 

and that “Citizens’s advertisements obviously are 

within that range.” Id. at 208a (quoting McConnell, 

540 U.S. at 196). In so concluding, the district court 

declined to give any weight to the undisputed fact 

that, under WRTL II, Citizens United’s advertisements cannot be constitutionally proscribed by the 

FEC, and expressed skepticism that this Court 

would “adopt[ ] that line as a ground for holding the 

disclosure and disclaimer provisions unconstitutional.” Id. at 208a. 

The district court thereafter granted summary 

judgment to the FEC for the same reasons that it 

denied Citizens United’s motion for a preliminary 

injunction. J.A. 261a. This Court noted probable jurisdiction. 

SUMMARY OF ARGUMENT 

The decision of the three-judge district court 

should be reversed. BCRA’s prohibition on corporate 

electioneering communications cannot be constitutionally applied to Citizens United’s documentary 

film, Hillary: The Movie, and its disclaimer, disclosure, and reporting requirements cannot be constitutionally applied to advertisements promoting that 

film. 

I. BCRA § 203 is unconstitutional as applied to 

Hillary: The Movie. 

A. This Court has identified only one compelling 

interest that is even conceivably sufficient to justify 

governmental restrictions on political speech: pre-
13

venting quid pro quo corruption and the appearance 

of such corruption in the electoral process. FEC v. 

Nat’l Conservative Political Action Comm., 470 U.S. 

480, 497 (1985). 

B.1. Although that compelling anti-corruption 

interest may be served by government restrictions on 

30- or 60-second broadcast advertisements that constitute express advocacy or its functional equivalent, 

that interest is categorically inapplicable to restrictions on feature-length movies distributed through 

Video On Demand. In contrast to short broadcast 

advertisements—which generally target unwilling 

recipients—feature-length movies are directed at a 

self-selected audience willing to invest 90 minutes of 

their time to watch a movie. And where that movie 

is offered through Video On Demand, the viewers 

must affirmatively request the movie from their cable provider. Hillary and other feature-length political movies distributed through Video On Demand are 

therefore far less likely than broadcast advertisements to reach and persuade undecided voters and 

thereby influence the outcome of an election. 

2. Moreover, any anti-corruption interest that 

the government might have in regulating some 

feature-length political movies distributed through 

Video On Demand would not reach movies that, like 

Hillary, are funded primarily through individual donations. Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990)—which held for the first 

time that the government has a compelling interest 

in forestalling the “corrosive and distorting effects of 

immense aggregations of wealth that are accumulated with the help of the corporate form” (id. at 

660)—was wrongly decided and should be overruled 

because it is flatly at odds with the well-established 

principle that First Amendment protection does not 
14

depend upon the identity of the speaker. First Nat’l 

Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978). 

In any event, Austin’s reasoning does not justify 

suppression of Hillary, which was funded overwhelmingly by donations from individuals. Thus, 

unlike in Austin, it cannot even conceivably be argued that Citizens United’s funding bore “little or no 

correlation to the public’s support for the corporation’s political ideas.” 494 U.S. at 660. 

C. Even if the government did have a compelling 

interest in prohibiting the Video On Demand distribution of some movies funded overwhelmingly with 

individual donations, that interest would be inapplicable to Hillary because it is not express advocacy or 

the functional equivalent of express advocacy. 

Hillary presents a critical biographical assessment of Senator Clinton’s public record. The documentary film does not urge viewers to vote for or 

against Senator Clinton in the Democratic Presidential primaries, but instead recounts significant 

events during her time as a U.S. Senator and First 

Lady in order to inform viewers about her political 

background. The possibility that, after “voters hear 

the information” Hillary conveys, they may “choose—

uninvited by the [movie]—to factor it into their voting decisions” cannot transform this biographical 

documentary into an appeal to vote. WRTL II, 127 S. 

Ct. at 2667 (opinion of Roberts, C.J.). 

To be sure, Hillary is a highly critical assessment 

of Senator Clinton’s record and several political 

commentators featured in the movie express concerns about her fitness for office. But the fact that 

Hillary offers a conservative critique of Senator Clinton’s record simply reinforces the absence of a quid 

pro quo corruption interest here: None of Senator 
15

Clinton’s Democratic presidential rivals would ever 

have viewed Hillary as a contribution to his primary 

campaign in need of repayment. 

II. The application of BCRA’s disclosure, disclaimer, and reporting requirements to Citizens 

United’s movie and advertisements is also unconstitutional. 

A. Any content-based restriction on political 

speech must survive strict scrutiny. Because the 

government has conceded that Citizens United’s advertisements promoting Hillary are not express advocacy or its functional equivalent, and because the 

district court erred when it concluded that the movie 

itself is the functional equivalent of express advocacy, the government lacks a compelling interest in 

applying BCRA’s disclaimer, disclosure, and reporting requirements to Citizens United in this case. 

B. These requirements are also unconstitutional 

under the government’s version of “exacting scrutiny.” 

Neither the government’s interest in providing 

information to the electorate nor its interest in enforcing substantive campaign-finance restrictions is 

sufficient to sustain application of BCRA’s disclaimer, disclosure, and reporting requirements to 

Citizens United. The informational interest is inapplicable to the advertisements because they promote 

a documentary movie—encouraging viewers to see 

Hillary in the theater, purchase it on DVD, or 

download it through Video On Demand. A requirement that Citizens United identify itself as responsible for those advertisements and disclose the names 

of its donors might assist the public in their movieviewing decisions but would not provide them with 

information relevant to the electoral process. Such a 
16

requirement would be equally uninformative as applied to the movie because the movie already includes extensive credits that provide much of the 

same information to viewers. 

The government’s interest in enforcing 

campaign-finance laws is also insufficient to sustain 

the application of BCRA’s disclaimer, disclosure, and 

reporting requirements in this case because the government concedes that the only substantive campaign finance restriction at issue—BCRA § 203’s 

prohibition on corporate electioneering communications—is inapplicable to Citizens United’s advertising. And because the district court erred in concluding that BCRA § 203 could be applied to Hillary, the 

enforcement interest also is inapplicable to the 

movie. 

In any event, any marginal informational or enforcement interest that the government may have in 

applying BCRA’s disclaimer, disclosure, and reporting requirements to Citizens United is manifestly 

outweighed by the burdens that those requirements 

would impose upon Citizens United’s constitutionally 

protected speech, including a dramatic reduction in 

the effectiveness of its 10- and 30-second advertisements, a significant increase in its compliance costs, 

and the deterrence of future donations.

ARGUMENT 

I. BCRA § 203 IS UNCONSTITUTIONAL AS 

APPLIED TO THE DISTRIBUTION OF 

CITIZENS UNITED’S DOCUMENTARY FILM 

THROUGH VIDEO ON DEMAND.

The district court upheld the application of 

BCRA’s prohibition on corporate electioneering 

communications to Hillary: The Movie because it 
17

concluded that the government had a compelling 

anti-corruption interest in prohibiting Citizens 

United from distributing its documentary film. That 

decision is incorrect because whatever anticorruption interest the government may have when 

regulating 30-second political advertisements financed with funds from for-profit corporations is 

categorically inapplicable to feature-length documentary films distributed through Video On Demand and 

financed almost exclusively with individual donations. In any event, even if the government could 

proscribe some such films, it would be unconstitutional for the government to prohibit the distribution 

of Hillary because that film is a critical biographical 

documentary that does not constitute express advocacy or the functional equivalent of express advocacy 

under the standard articulated in WRTL II. 

A. The Government May Not Suppress 

Political Speech Except When 

Necessary To Prevent Corruption Or 

The Appearance Of Corruption. 

No less than other content-based restrictions on 

speech, any effort by the government to suppress political speech is subject to strict scrutiny, under 

which “the Government must prove that [the restriction] furthers a compelling interest and is narrowly 

tailored to achieve that interest.” WRTL II, 127 

S. Ct. at 2664 (opinion of Roberts, C.J.). “[T]he only 

legitimate and compelling government interests thus 

far identified for restricting campaign finances” are 

“preventing corruption or the appearance of corruption.” FEC v. Nat’l Conservative Political Action 

Comm., 470 U.S. 480, 496-97 (1985). The “hallmark” 

of this brand of corruption of elected officials “is the 

financial quid pro quo: dollars for political favors.” 

Id. 
18

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

curiam), this Court reviewed an extensive and 

“deeply disturbing” legislative record detailing the 

phenomenon of “large contributions . . . given to secure a political quid pro quo from current and potential office holders.” Id. at 26-27. Recognizing that 

such quid pro quo corruption undermined “the integrity of our system of representative democracy,” the 

Court upheld certain campaign contribution limits 

established by the Federal Election Campaign Act 

(“FECA”) as a “precisely” “focuse[d]” means of stamping out the corrupting influence of large contributions. Id. at 26-27, 28. 

Buckley, however, took a very different approach 

with respect to the regulation of independent expenditures. Even after narrowing FECA’s definition of 

“expenditures” to include only express advocacy—i.e., 

speech employing the so-called “magic words” advocating the election or defeat of a particular candidate 

(Buckley, 424 U.S. at 44)—the Court still invalidated 

FECA’s restriction on independent expenditures. 

The Court concluded that “the independent advocacy 

restricted by the provision does not presently appear 

to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions.” Id. at 46. Such expenditures, the Court 

reasoned, “may well provide little assistance to the 

candidate’s campaign and indeed may prove counterproductive,” thus “alleviat[ing] the danger that 

expenditures will be given as quid pro quo for improper commitments from the candidate.” Id. at 47. 

After striking down a federal restriction on independent expenditures as applied to express advocacy 

funded primarily by individual donors (see FEC v. 

Mass. Citizens for Life, 479 U.S. 238, 256-65 (1986) 

(“MCFL”)), the Court broke sharply from the teach-
19

ings of Buckley in Austin v. Michigan State Chamber 

of Commerce, 494 U.S. 652 (1990). To sustain a state 

ban on independent expenditures as applied to express advocacy funded primarily by for-profit corporate members, the Court uncovered another form of 

“corruption”—beyond that of quid pro quo exchanges 

of campaign support for official actions—that warranted regulation: “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and 

that have little or no correlation to the public’s support for the corporation’s political ideas.” Id. at 660. 

And, although Buckley had found that independent 

expenditures did not “pose dangers of real or apparent corruption comparable to those identified with 

large campaign contributions” (424 U.S. at 46), in 

Austin the Court reasoned that “[c]orporate wealth 

can unfairly influence elections when it is deployed 

in the form of independent expenditures, just as it 

can when it assumes the guise of political contributions.” 494 U.S. at 660. The Court thus upheld 

Michigan’s ban on corporations’ expenditures of general treasury funds for express advocacy of the election or defeat of state candidates. 

Subsequent election cycles witnessed a “spectacular rise” in broadcast advertisements by corporations and labor unions that avoided the use of “magic 

words” but nevertheless were “candidate-centered.” 

McConnell v. FEC, 251 F. Supp. 2d 176, 527 (D.D.C. 

2003) (Kollar-Kotelly, J.). “[T]o stanch” that “virtual 

torrent of televised election-related ads during the 

periods immediately preceding federal elections” 

(McConnell, 540 U.S. at 207), Congress enacted 

BCRA in 2002, § 203 of which prohibited corporations and unions from using general treasury funds 
20

to finance “electioneering communications.” 2 U.S.C. 

§ 441b(b)(2). 

To defend Congress’s effort “[t]o stanch” this political speech (McConnell, 540 U.S. at 207), lawyers 

defending BCRA amassed an “elephantine” litigation 

record (McConnell, 251 F. Supp. 2d at 209 n.40) that 

purported to establish that: (1) “Buckley’s magic 

words requirement is functionally meaningless” because “advertisers [can] easily evade the line by eschewing the use of magic words” and because “they 

would seldom choose to use such words even if permitted” (McConnell, 540 U.S. at 193); (2) television 

and radio advertisements are the “most prevalent,” 

“most visible,” “most powerful,” and “most effective” 

form of campaign communications and that, accordingly, “broadcast advertisements were the vehicle 

through which corporations and labor unions spent 

their general treasury funds to influence federal elections” (McConnell, 251 F. Supp. 2d at 569-71, 573 

(Kollar-Kotelly, J.)); (3) “candidates are acutely 

aware of third-party interest groups who run 

candidate-centered issue advertisements on [their] 

behalf,” “candidates appreciate the support of those 

organizations,” and they “feel indebted to those who 

spend money to help get them elected” (id. at 555-

56); and (4) the public perceives that elected officials 

“demonstrate their appreciation” and pay off their 

“indebtedness” through “favored access, or increased 

legislative influence, or both.” Id. at 557; id. at 800 

(Leon, J.). 

“[G]round[ing]” its analysis “in the evidentiary 

record before the Court” (WRTL II, 127 S. Ct. at 2664 

(opinion of Roberts, C.J.)), the McConnell majority 

rejected a facial challenge to BCRA’s prohibition on 

corporations’ expenditure of general treasury funds 

to finance electioneering communications. Based on 
21

the litigation record before it, the Court concluded 

that the government had a compelling anticorruption interest in suppressing not just corporate 

expenditures for express advocacy, but also corporate 

expenditures for “issue ads broadcast” immediately 

before an election that “are the functional equivalent 

of express advocacy.” McConnell, 540 U.S. at 206. 

Addressing an as-applied challenge to BCRA’s 

restriction on electioneering communications in 

WRTL II, the Court held that “a court should find 

that an 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 candidate.” 127 S. Ct. at 2667 

(opinion of Roberts, C.J.). The Court explained that 

advertisements that are susceptible of other interpretations—including “advocacy [that] conveys information and educates”—“are by no means equivalent to contributions, and the quid-pro-quo corruption interest cannot justify regulating them.” Id. at 

2667, 2672. Because the government’s suppression 

of Wisconsin Right to Life’s political speech was not 

narrowly tailored to combat “quid pro quo corruption” of elected officials, it could not be sustained. Id.

at 2671. 

B. No Compelling Interest Supports 

The Government’s Effort To 

Prohibit Video On Demand 

Distribution Of Citizens United’s 

Documentary Film. 

The district court assumed that, if Hillary: The 

Movie was susceptible of no interpretation other than 

an appeal to vote against Hillary Clinton in the Democratic presidential primaries, then the government had a compelling interest in suppressing it. 
22

The assumption might have been warranted if 

Hillary: The Movie were of a piece with the “virtual 

torrent of televised election-related ads” at issue in 

McConnell. 540 U.S. at 207. But as the film’s title 

suggests, it is not: It is a feature-length documentary film that Citizens United sought to distribute 

(but was barred from distributing) through Video On 

Demand technology and that was funded almost exclusively by individuals. Strict scrutiny requires a 

reviewing court to “ensure that a compelling interest 

supports each application of a statute restricting 

speech.” WRTL II, 127 S. Ct. at 2671 (opinion of 

Roberts, C.J.). This, the district court failed to do. 

1. The Government Has Failed To 

Demonstrate Any Anti-Corruption 

Rationale For Prohibiting Video On 

Demand Distribution Of FeatureLength Films. 

a. McConnell’s holding that the government may 

prohibit corporate general treasury expenditures for 

broadcast advertisements that “are the functional 

equivalent of express advocacy” (540 U.S. at 206) is 

predicated on the McConnell district court’s finding 

that, of all forms of political speech, “broadcast advertising is the most effective form of communicating 

an electioneering message” and therefore poses the 

most acute risk of corruption. McConnell, 251 F. 

Supp. 2d at 647 (Kollar-Kotelly, J.); see also id. at 

569-73. Other forms of communication, such as the 

Internet, direct mail, and newspaper advertising are 

not “nearly as effective as broadcast advertising” and 

therefore are not “as problematic.” Id. at 572. 

BCRA’s restriction on electioneering communications 

was narrowly tailored, the district court concluded, 

because, as limited to “Radio & Television Adver-
23

tisements,” it reached “only the media that were 

found by Congress to be problematic.” Id. at 569; see 

also id. at 573 (“The primary definition of electioneering communication is narrowly tailored to only 

the communication media that was problematic . . . 

broadcast advertisements . . . .”). 

Broadcast advertising is more effective at influencing elections—“problematic” in Judge KollarKotelly’s view—than other modes of communication 

because of the audience that broadcast advertising 

can reach. Because they are interspersed among 

segments of a program a viewer or listener has selected, broadcast advertisements are able to reach 

individuals who would not otherwise choose to receive the message conveyed in the advertisement. 

And because most advertisements are short in duration, many unwilling recipients will endure the brief 

interruption in programming and receive a message 

they otherwise would not choose to hear. To avoid 

the unwanted message, a viewer or listener must 

change the broadcast channel and thereby risk missing some portion of the program he was viewing or 

listening to before the advertising interruption. For 

better or worse, evading broadcast advertisements is 

not as easy as hanging up the phone, turning the 

page of the newspaper, or discarding unwanted direct mail. See E.D. Dover, Images, Issues, and Attacks 7 (2006) (“Television ads are different [than 

print ads] . . . in that passive viewers essentially 

have an ad thrust in front of them and frequently respond by watching it.”). 

It is the fact that broadcast advertisements can 

reach the vast number of voters who are not sufficiently engaged in the political process or otherwise 

motivated to seek information about candidates that 

makes broadcast advertisements so effective at in-
24

fluencing the outcome of elections. Marion Just et 

al., Thirty Seconds or Thirty Minutes: What Viewers 

Learn from Spot Advertisements and Candidate Debates, 40 J. Comm. 120, 122 (1990) (“The most important effects of political commercials occur not 

among politically attentive people but among moderately or less interested voters, who view them as 

they watch regular programming.”). Broadcast advertisements, far more often than other forms of 

campaign communication, are able to persuade viewers or listeners to vote for a candidate for whom they 

otherwise would not. 

b. There is no evidence in the record of this 

case—or McConnell—to support the notion that 

feature-length films distributed through Video On 

Demand are anywhere near as effective as broadcast 

advertisements at influencing the outcome of elections. To the contrary, as Judge Kollar-Kotelly recognized, forms of communication that require individuals to “opt-in”—to “make a choice to . . . watch 

the program”—are likely to attract viewers that are 

“more predisposed to the [speaker’s] views about political candidates than the undecided voter watching 

a sitcom on a Thursday evening and viewing a thirtysecond issue advertisement critical of [a candidate].” 

McConnell, 251 F. Supp. 2d at 571, 646 (KollarKotelly, J.). Because the sitcom advertisement is 

“aired throughout programming without any viewer 

choice,” it is more likely to reach the “undecided 

voter” and thereby influence the outcome of the election; the broadcast advertisement thus poses a 

“much more powerful” “risk of corrupting the political process” than a communication that requires its 

recipients to “opt-in.” Id. at 571, 646. At least for 

Judge Kollar-Kotelly, the element of “viewer choice” 

was a “critical distinction” that separated media that 
25

posed “powerful” risks of corruption from those that 

did not. Id. at 571, 646. 

A feature-length film distributed through Video 

On Demand requires viewers to “opt-in” at two separate levels. First, the viewer must choose to invest 

the time to watch the entire film. Hillary is 90 minutes in length—180 times as long as the typical campaign advertisement. Given the investment of time 

required, the only persons likely to watch the film 

are those who are interested enough in the subject 

matter to want to learn what Citizens United has to 

say about Hillary Clinton. That self-selecting audience bears little resemblance to that of any broadcast 

political advertisement. 

Once an individual has decided to invest the time 

to view the feature-length film, he still must find a 

theater in which to view it, obtain a DVD copy of it, 

or order it through a Video On Demand service provider. In the case of Video On Demand—the only 

method of distribution at issue in this case—the 

viewer must locate the film he wishes to watch 

among the numerous Video On Demand offerings, 

and then send an electronic signal to the Video On 

Demand provider that directs the provider’s digital 

server to send a digital data signal containing a 

scrambled and compressed version of that film to the 

viewer’s converter box. See Simpson, supra, at 377-

80. The converter box, in turn, unscrambles and decompresses the data signal, and allows the film to be 

watched on the television connected to the viewer’s 

converter box. Id. Thus, to view a film through 

Video On Demand, the viewer must not only choose 

to invest the time to watch a feature-length film, but 

also to instruct the Video On Demand service provider to transmit the film to his converter box. 
26

This type of Video On Demand service, which 

was not widely available in 2003 when the district 

court and this Court first considered the constitutionality of BCRA’s prohibition on corporate electioneering communications, is analogous in every relevant respect to an Internet user’s download of video 

content—a “form[ ] of media” Judge Kollar-Kotelly 

found to be “completely different” from “television 

and radio advertising.” McConnell, 251 F. Supp. 2d 

at 571. Indeed, the only difference is that in the 

Video On Demand context the viewer receives the 

requested video content via cable or satellite, 

whereas in the Internet context, the viewer receives 

the video content via the Internet (which, depending 

on the viewer’s Internet service provider, may or may 

not include the facilities of a cable or satellite company). As if to prove the point, numerous Internet

companies—such as Amazon.com—are now offering 

“video-on-demand” delivery of video content. 

Whether offered through a cable service provider 

or an Internet service provider, it is the Video On 

Demand viewer who requests the content from a digital server, which then routes a data signal to the 

viewer (and only to that viewer). The fact that the 

viewer chooses the content, rather than the content 

choosing the viewer, fundamentally alters the composition of the audience and is a “crucial distinction” 

that separates speech that could not possibly corrupt 

elected officials from speech found in the past to present a risk of such corruption.2

 

 2 While the element of viewer choice in Video On Demand 

transactions means that BCRA’s restrictions on electioneering 

communications cannot be constitutionally applied to films distributed through Video On Demand, the fact that each Video On 

Demand transmission is directed only to the requester’s con-
27

c. Moreover, the fact that the government sought 

to suppress only the Video On Demand distribution 

of Hillary, while leaving Citizens United free to distribute the film during the pre-election window in 

theaters and on DVD, betrays its asserted anticorruption rationale as a pretext for simple suppression of speech. It cannot seriously be maintained 

that the Video On Demand distribution of Hillary is 

any more corrupting either of Senator Clinton’s Democratic primary opponents or the political process 

generally than if Citizens United sent a free DVD to 

every person who ordered the film through Video On 

Demand (or to every registered voter in a primary 

 

[Footnote continued from previous page]

verter box means that the Video On Demand transmissions are 

not electioneering communications at all. To be an electioneering communication, a communication must be able to be received by 50,000 persons. See 2 U.S.C. § 434(f)(3)(C); 11 C.F.R. 

§ 100.29(b)(3)(ii). Because, unlike a broadcast, it is sent only to 

the requesting converter box (as opposed to a geographic area), 

a Video On Demand transmission will generally be viewed only 

by the members of the household who requested the Video On 

Demand program. Unless the recipient converter box is located 

in a sold-out football stadium, the transmission will not be able 

to be viewed by 50,000 people. Although Citizens United did 

not present this argument to the district court, the district court 

appeared to pass upon it (see J.A. 199a n.6), and the canon of 

constitutional avoidance suggests that this Court should consider it even if the district court had not. See, e.g., United States 

v. Grace, 461 U.S. 171, 175-76 (1983) (“Appellees did not make a 

statutory construction argument before the lower courts, but at 

oral argument, the question was raised whether § 13k reached 

the types of conduct in which appellees engaged, and we should 

answer it.”). Here, the inescapable fact is that, in Video On 

Demand technology, each communication from the content provider’s digital server is directed to a single converter box. That 

fact is an appropriate and nonconstitutional basis for resolving 

this aspect of the case. 
28

State). Yet, the government demands the suppression of the former, and not the latter. 

As applied to feature-length films, the government’s restriction is even more “woefully underinclusive” than the speech restriction this Court struck 

down in Republican Party v. White, 536 U.S. 765 

(2002). In White, the Court concluded that the 

State’s asserted “objective of open-mindedness” was a 

mere fiction because the speech restriction prohibited judges from announcing their “views on disputed 

legal or political issues” only when the judge was a 

candidate and otherwise permitted such speech both 

before and after the judge was elected. Id. at 768, 

780. At least in White, however, the State prohibited 

the targeted speech at certain times and not others. 

Here, while the government claims that extirpation 

of corruption from our political process demands that 

it prevent individuals from using a Video On Demand service to view Hillary or similar films in their 

homes in the run-up to elections, it is perfectly willing to let the same individuals view the same films in 

their same homes during the same period of time, as 

long as they use a DVD player to do so. 

To be sure, the government is entitled to regulate 

“one step at a time,” but where the First Amendment 

is concerned, this Court has approved such incremental regulation only where it addresses the “phase 

of the problem which seems most acute to the legislative mind.” McConnell, 540 U.S. at 207-08. Nothing 

in this record, the McConnell record, or common 

sense supports the contention that one digital data 

transmission and storage format (Video On Demand) 

is more acutely corrupting of the political process—

“more problematic” one might say—than another 

(DVDs). And in the absence of any factual or logical 

basis for the line the government has drawn between 
29

the Video On Demand and DVD formats, the fact 

that the government seeks to prohibit only the Video 

On Demand distribution of Hillary and other 

feature-length films profoundly “undermines the 

likelihood of a genuine state interest” supporting 

BCRA’s application to such films. First Nat’l Bank of 

Boston v. Bellotti, 435 U.S. 765, 793 (1978). 

It is the government’s burden to “prove” that “a 

compelling interest justifies each application of a 

statute restricting speech.” WRTL II, 127 S. Ct. at 

2664, 2671 (opinion of Roberts, C.J.). With respect to 

feature-length films distributed through Video On 

Demand, the government has failed to carry that 

burden. It has made no showing that restricting 

Video On Demand distribution of Hillary and similar 

films will further its asserted anti-corruption rationales, much less the required showing that the restriction is necessary to achieve those ends. 

2. No Compelling Interest Supports 

The Government’s Effort To 

Suppress Political Speech That Is 

Funded Overwhelmingly By 

Individuals. 

If there existed a substantial governmental anticorruption interest in prohibiting the Video On Demand distribution of biographical documentary films, 

it would not extend to films, like Hillary, that are 

funded overwhelmingly by individuals. 

The FEC’s claim of authority to prohibit Video 

On Demand distribution of Hillary—and other 

speech of nonprofit advocacy corporations—rests on 

this Court’s decision in Austin, which held that a 

State could prohibit an advocacy group funded predominantly by for-profit corporations (the Michigan 

Chamber of Commerce) from using general treasury 
30

funds for express advocacy (494 U.S. at 659), and on 

McConnell’s apparent extension of Austin to all nonprofit corporations not falling within the “carefully 

defined category of entities” directly at issue in 

MCFL. McConnell, 540 U.S. at 210. The FEC’s longstanding position is that, if a nonprofit advocacy corporation accepts any contribution from a for-profit 

entity or labor union—even a single dollar—the FEC 

may prohibit that advocacy group from using its general treasury funds for electioneering communications. See 11 C.F.R. § 114.10 (exempting from the 

electioneering communication prohibition only ideological, nonstock, nonprofit corporations that receive 

no funding from for-profit corporations or from business activities). 

Austin was wrongly decided and should be overruled. Austin’s assertion that the government has a 

compelling interest in forestalling “corrosive and distorting effects of immense aggregations of wealth 

that are accumulated with the help of the corporate 

form and that have little or no correlation to the public’s support for the corporation’s political ideas” (494 

U.S. at 660) is sharply at odds with the more venerated principle, articulated in Buckley and recently 

reaffirmed in Davis v. FEC, 128 S. Ct. 2759, 2773 

(2008), that “[t]he First Amendment’s protection 

against governmental abridgment of free expression 

cannot properly be made to depend on a person’s financial ability to engage in public discussion.” Buckley, 424 U.S. at 49. Nor can it be reconciled with Bellotti’s recognition that political speech is no less valuable “because the speech comes from a corporation 

rather than an individual.” 435 U.S. at 776-77; see 

also id. (“[t]he inherent worth of the speech . . . does 

not depend upon the identity of its source, whether 

corporation, association, union, or individual”). In-
31

deed, Austin’s assertion that the government must 

police the “distorting effects” of corporate wealth on 

the marketplace of ideas (494 U.S. at 660) was rejected almost verbatim in Bellotti, which held that 

the fear that “corporations are wealthy and powerful 

and their views may drown out other points of view” 

could not justify suppression of corporations’ political 

speech. 435 U.S. at 789. 

Moreover, the “immense aggregations of wealth” 

of which Austin complained are accumulated as often 

by individuals as by corporations. And there is absolutely no reason to think that an advocacy group 

funded predominantly by one or two individuals—

such as George Soros’s Fund for America or the Wyly 

brothers’ Republicans for Clean Air—is any more reflective of the public’s support for the group’s ideals 

than a group funded exclusively by for-profit corporations. The for-profit corporations, at least, must 

respond to their shareholders through their boards of 

directors. 

But whatever the continuing vitality of Austin, 

its rationales clearly do not support a ban on speech 

that, like Hillary, is funded predominantly by individuals. MCFL held that a voluntary membership 

organization committed to a political purpose does 

not lose its First Amendment rights simply by taking 

the corporate form. Although the “resources in the 

treasury of a business corporation . . . are not an indication of popular support for the corporation’s political ideas,” nonprofit advocacy groups that take the 

corporate form “do not pose that danger of corruption” because they are “formed to disseminate political ideas, not to amass capital.” MCFL, 479 U.S. at 

258-59 (emphasis added). Their “resources . . . are 

not a function of [their] success in the economic mar-
32

ketplace, but [their] popularity in the political marketplace.” Id. 

None of the rationales marshaled in support of 

the result in Austin can justify suppression of speech 

that is funded overwhelmingly by individuals who 

know their money will be put to use for advocacy. 

This is far from a scenario where, as the Court said 

of the Michigan Chamber of Commerce in Austin, the 

entity’s power in the marketplace of ideas has “little 

or no correlation to the public’s support for the corporation’s political ideas.” 494 U.S. at 660. Nor is it a 

case where donors are funding “varied purposes, several of which are not inherently political,” and therefore “many of its members may be . . . reluctant to 

withdraw as members even if they disagree with the 

[advocacy group’s] political expression”—creating a 

hypothetical asymmetry between the political speech 

and the views of the donors financing it. Id. at 662, 

663 (citation omitted). 

The question here is whether Citizens United’s 

documentary is more like the speech in MCFL—

funded entirely by individuals—or the speech in Austin—funded by a membership that was “more than 

three-quarters” for-profit corporations. Austin, 494 

U.S. at 664. The answer is clear: More than ninetynine percent of the funding for Hillary came from individuals. J.A. 244a, 251a-52a. Because nearly all of 

its support came from individuals who share in its 

ideological vision, Citizens United’s ability to disseminate its ideas through its documentary film reflects precisely its individual members’ support for 

that speech. 

The FEC’s one-dollar-and-you’re-out rule turns 

the First Amendment on its head. It presumes that 

even the most miniscule amount of support from a 
33

for-profit corporation either will make an advocacy 

group’s speech unreflective of its individual members’ views, or will arrogate to that advocacy group 

power within the marketplace of ideas beyond that 

the group has earned based on the “public’s support” 

for its mission. Such a presumption is incompatible 

with strict scrutiny, which “give[s] the benefit of any 

doubt to protecting rather than stifling speech.” 

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

C.J.). It is the government’s burden to rebut the presumption in favor of speech through proof—not supposition—that the corporate donations to a nonprofit 

advocacy group unfairly leverage the corporate donors’ “success in the economic marketplace” to fund 

speech that substantially outstrips the advocacy 

group’s “popularity in the political marketplace.” 

MCFL, 479 U.S. at 258-59. 

Here, more than $1 million was donated to Citizens United to fund the production and distribution 

of Hillary. Twenty-five persons gave more than 

$1,000 to Citizens United for that purpose. J.A. 

251a-52a. Of the more than $200,000 raised from 

these large donors, only $2,000—less than 1%—was 

donated by for-profit corporations. Id. The percentage of contributions that Citizens United received 

from for-profit corporations would doubtless be even 

smaller if the numerous contributions of less than 

$1,000 were taken into account. 

It is inconceivable that these donations gave 

Citizens United any “unfair advantage in the political marketplace.” MCFL, 479 U.S. at 257. Whatever 

else can be said of the movie, it cannot seriously be 

contended that its funding bore, as asserted in Austin, “little or no correlation to the public’s support for 

the corporation’s political ideas.” 494 U.S. at 660. 

The individual donors who provided virtually all of 
34

the funding for Citizens United’s documentary knew 

that they were supporting the documentary and donated precisely for that reason. 

C. Hillary: The Movie Is Not The 

Functional Equivalent Of Express 

Advocacy. 

Even if one assumes that the First Amendment 

permits the government to subject the Video On Demand distribution of a feature-length documentary 

film underwritten almost entirely by individuals to 

the same regulatory regime as broadcast advertisements of for-profit corporations, the FEC’s proscriptive power would extend only to those films that are 

“equivalent to contributions” and that “pose the same 

dangers of actual or apparent quid pro quo arrangements as do large contributions.” WRTL II, 127 S. 

Ct. at 2672 (opinion of Roberts, C.J.). That category 

would include only films that constitute “express advocacy” or its “functional equivalent.” Id. A communication “is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or 

against a specific candidate.” Id. at 2667 (emphasis 

added). 

The parties agree that Hillary is not express advocacy. See Def.’s Mot. for Summ. J. 37. Accordingly, even under the FEC’s expansive view of its 

own authority, the government may prohibit Video 

On Demand distribution of Hillary only if the film 

cannot reasonably be interpreted as anything other 

than an appeal to Democratic presidential primary 

voters to vote for someone other than Hillary Clinton 

in those elections. Because the FEC is seeking to 

prohibit distribution of the whole film and not just 

what it considers to be its corrupting parts, the FEC 
35

bears the burden of demonstrating that the entire 90-

minute film is susceptible of no reasonable interpretation other than as an appeal to Democratic primary voters to vote against Senator Clinton. And 

because “the distinction between discussion of . . . 

candidates and advocacy of election or defeat of candidates may often dissolve in practical application,” 

if Hillary presents a “debatable case,” it must be resolved in favor of “the speaker, not the censor.” 

WRTL II, 127 S. Ct. at 2669 & n.7 (opinion of Roberts, C.J.) (internal quotation marks omitted). It is 

Citizens United’s “First Amendment freedoms” at 

stake in this case after all, and those freedoms “need 

breathing space to survive.” Id. at 2666 (quoting 

NAACP v. Button, 371 U.S. 415, 433 (1963)). 

But this Court need not rely on “breathing 

space,” because this 90-minute film is not remotely 

an “appeal to vote.” Hillary is a documentary film 

that examines certain historical events—frequently 

through interviews of persons who participated in 

those events alongside Senator Clinton—in an effort 

to educate its viewers about the background, character, and beliefs of Senator Clinton. For example, it 

tells the story of Billy Dale, who was fired by the 

Clinton Administration as the Director of the White 

House Travel Office after more than thirty years of 

service. J.A. 43a-53a. The documentary also reviews 

the fundraising practices and alleged violations of 

the campaign finance laws by Senator Clinton and 

President Clinton. Id. at 65a-87a. Later, the film 

examines Senator Clinton’s involvement as First 

Lady in the Clinton Administration’s efforts to reform healthcare, and uses that as a launching point 

to explore her views on healthcare reform. Id. at 

95a-104a. And there is a substantial exposition of 

her views on the Iraq War, starting with her vote to 
36

authorize the war and tracing her shift to oppose the 

war by the time she started to campaign for the 

Presidency. Id. at 108a-12a. Throughout, the film 

presents the views of an array of political commentators, many of them distinguished and well-known, 

such as Robert Novak, John Fund, Michael Barone, 

and Newt Gingrich. 

The film is therefore best viewed as a rigorously 

researched critical biography designed to “convey[ ] 

information and educate[ ]” viewers about a presidential candidate. WRTL II, 127 S. Ct. at 2667 

(opinion of Roberts, C.J.). In this regard, it is similar 

to the numerous critical candidate biographies found 

in bookstores, such as Bay Buchanan’s The Extreme 

Makeover of Hillary (Rodham) Clinton—books that 

themselves are intended as answers to the ubiquitous and self-serving campaign autobiographies of 

the candidates. See, e.g., Joe Biden, Promises to 

Keep: On Life and Politics (2008). Whether they 

agree or disagree with the film’s underlying critique 

of Senator Clinton, even well-informed viewers could 

learn a great deal about her from the film. And to 

the extent that the film is, as Publishers Weekly said 

of The Extreme Makeover of Hillary (Rodham) Clinton, “a sermon for the choir” (The Week of 

7/23/07, at http://www.publishersweekly.com/article/ 

CA6462022.html), the “choir” likely would find 

Hillary entertaining as well as informative. 

To support its conclusion that Hillary is “susceptible of no other interpretation than . . . that viewers 

should vote against her,” the district court relied on a 

“selection of excerpts from the movie” that the court 

found “indicative of the film’s message as a whole.” 

J.A. 204a n.12. Yet none of those excerpts suggests 

that the viewer take any action at all—much less the 

specific act of voting against Senator Clinton in a 
37

Democratic presidential primary. In the absence of 

such an unambiguous call to action, it is difficult to 

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

that must invariably be interpreted as an “appeal to 

vote.” The possibility that, after “voters hear the information” conveyed in Hillary, they may “choose—

uninvited by the [movie]—to factor it into their voting decisions” does not transform this biographical 

documentary into an appeal to vote against Senator 

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

Roberts, C.J.). 

The only portion of Hillary that even conceivably 

could be characterized as an “appeal to vote” comes 

approximately 83 minutes into the 90-minute film 

when various political commentators state their 

views as to Senator Clinton’s qualifications to be 

President. It was in that context that conservative 

commentator Robert Novak said that “I think Hillary 

Clinton as a candidate has great defects” (J.A. 145a); 

Frank Gaffney, founder and president of the Center 

for Security Policy, said that “I don’t think [a Hillary 

Clinton presidency] is going to be good for the security of the United States” (id. at 147a); and Buzz Patterson, former military aide to President Clinton, 

said that “the Hillary Clinton that I know is not 

equipped, not qualified to be our commander in 

chief.” Id. at 149a. 

Such a discussion of a candidate’s character, 

qualifications, or fitness for office would have been 

commonplace on Meet the Press or any other of the 

countless television and radio programs populated by 

political commentators, and the district court erred 

in holding that it would have been a felony for Citizens United to broadcast the same political speech. 

The First Amendment does not admit of a view of the 

freedom of speech under which only those fortunate 
38

enough to have their speech sanctified by the FEC as 

a “news story, commentary, or editorial” may say 

what they wish about a candidate’s qualifications 

and fitness for office (11 C.F.R. § 100.29(c)(2)), while 

all others must keep their discussion of candidate 

qualifications so anodyne as not to pique the interest 

of even the most aggressive FEC regulator, risk felony prosecution, or (as the FEC undoubtedly prefers) 

remain silent. 

The government locates support for the district 

court’s conclusion in the lead opinion of WRTL II, 

which reasoned that certain issue advertisements 

were not appeals to vote because, among other 

things, they did not “take a position on a candidate’s 

character, qualifications, or fitness for office.” 127 

S. Ct. at 2667 (opinion of Roberts, C.J.). But it does 

not follow from that line of reasoning that every

pointed discussion of a candidate’s qualifications and 

fitness for office must be interpreted as an appeal to 

vote for or against that candidate. In many cases, a 

speaker’s expression of his view as to a candidate’s 

qualifications and fitness for office will be just that—

the speaker’s expression of his own viewpoint. In the 

absence of words of express advocacy, the expression 

of a viewpoint as to a candidate’s character, qualifications, or fitness for office may be necessary to establish that the communication constitutes an appeal 

to vote for or against that candidate, but it is not itself sufficient. 

Whether a speaker’s assessment of a candidate’s 

qualifications can and should be interpreted as an 

appeal to vote for or against that candidate will depend frequently on the context in which it arises. 

Broadcast as a 10-second advertisement, the unadorned statement, “John McCain is too old to be 

President,” conceivably could be considered by some 
39

as an appeal to vote against Senator McCain because, in the absence of any contextual discussion, 

many in the audience might not evaluate the advertisement’s statement as part of a larger debate over 

the competing candidates’ fitness for office. They 

may very well view it, like many of the advertisements blanketing the airwaves in the run-up to the 

recent election, as an appeal to vote against Senator 

McCain. 

On the other hand, if a documentary producer 

created a program that investigated the question 

whether Senator McCain was healthy enough to be 

President, probed his health history, and concluded 

the program with an interview with a commentator 

expressing the view that “John McCain is too old to 

be President,” that documentary would be understood as contributing to an important debate about a 

candidate’s medical fitness to hold office. (In fact, 

numerous “news” programs aired segments on exactly this topic in July 2008 after Senator McCain 

had a mole removed from his face. See CNN, McCain 

Health Scare (aired July 28, 2008), transcript at

http://transcripts.cnn.com/TRANSCRIPTS/0807/28/ec

.01.html. The context in which the evaluation of the 

candidate’s fitness arose—as part of a detailed factual investigation of the issue—would make clear 

that the program was not a blunt appeal to vote 

against Senator McCain. The program instead 

would be understood by its audience principally as 

providing information about Senator McCain’s 

health and, possibly, as imparting one commentator’s 

view as to his fitness to hold the office of President. 

Hillary is not a broadcast advertisement and, 

taken as a whole, the 90-minute film plainly is susceptible to interpretations other than as an appeal to 

vote against Senator Clinton. As noted above, like 
40

any candidate biography, Hillary should be understood principally as providing its audience with historical information about the candidate, and, perhaps, some measure of entertainment as well. In 

this respect, it is analogous to Fahrenheit 911, which, 

though critical of President Bush, could not be 

viewed solely as an appeal to vote against him because it also provided viewers with extensive information about the 9/11 terrorist attacks and the Nation’s (as well as President Bush’s) response to them. 

Similarly, the fact that Hillary includes—after approximately 85 minutes of detailed information concerning Senator Clinton’s record as First Lady and 

Senator—various commentators’ opinions that Senator Clinton would be a poor choice for President, 

cannot convert the entire film into an appeal to vote. 

Taken as a whole, the film can still reasonably be interpreted by its audience as conveying information 

about Senator Clinton’s political past in order to educate viewers about her background. Indeed, the 

film’s presentation of these commentators’ critical 

views about Senator Clinton no more converts the 

entire work into an appeal to vote against her than 

its inclusion of self-laudatory campaign statements 

by Senator Clinton herself transforms the film into 

an appeal to vote for her. J.A. 32a-33a. 

Even more fundamentally, however, the Video 

On Demand distribution of Citizens United’s film 

cannot possibly be viewed as “equivalent” to the type 

of campaign “contribution” that raises the specter of 

quid pro quo corruption of elected officials. WRTL II, 

127 S. Ct. at 2672 (opinion of Roberts, C.J.). But for 

the threat of FEC enforcement, Citizens United 

would have distributed Hillary through Video On 

Demand in January 2008, as the first Democratic 

presidential primaries were getting underway. The 
41

notion that Senator Obama would have viewed the 

Video On Demand distribution of Hillary as a contribution to his amply financed campaign, and that 

President-Elect Obama, “know[ing] who [his] friends 

are” (McConnell, 540 U.S. at 129), would now feel 

beholden to Citizens United (and, more specifically, 

to the two corporations that provided a total of less 

than one percent of Hillary’s production costs), is 

patently absurd. The self-selecting audience of an 

overtly conservative documentary like Hillary likely 

would not have included a significant number of Democratic primary voters. Accordingly, none of Senator Clinton’s Democratic presidential rivals ever 

would have viewed the distribution of Hillary as a 

contribution to his primary campaign in need of repayment, “and the quid-pro-quo corruption interest” 

therefore “cannot justify regulating [it].” WRTL II, 

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

The government cannot defend its censoring of 

Hillary by reference to abstractions about the “functional equivalent of express advocacy.” Strict scrutiny demands that it prove that suppression of this 

film is necessary to combat real or apparent corruption. Because it cannot adduce any reason to believe—much less any proof—that Video On Demand 

distribution of Hillary posed any danger of actual or 

apparent corruption of Senator Clinton’s rivals in the 

Democratic presidential primary, the First Amendment should have protected Citizens United’s right 

to distribute its film. More the pity that it could not 

do so when it mattered most. 
42

II. BCRA § 201 AND BCRA § 311 ARE 

UNCONSTITUTIONAL AS APPLIED TO 

CITIZENS UNITED.

The district court upheld the application of 

BCRA’s disclaimer, disclosure, and reporting requirements to Citizens United because it construed 

McConnell as foreclosing all as-applied challenges to 

those requirements, except for challenges by groups 

whose members would be subject to a “‘reasonable 

probability’” of reprisals if their identities were disclosed. J.A. 209a. 

This was error. As this Court made clear in 

WRTL I, McConnell rejected a facial challenge to 

BCRA, but did not purport to foreclose any future asapplied challenges. WRTL I, 546 U.S. at 411-12. 

McConnell’s facial analysis therefore did not resolve 

whether BCRA’s disclaimer, disclosure, and reporting requirements can constitutionally be applied to 

advertisements promoting a political documentary 

about a presidential candidate or to the documentary 

movie itself where neither the advertisements nor 

the movie constitutes express advocacy or its functional equivalent. See Broadrick v. Oklahoma, 413 

U.S. 601, 615-16 (1973) (where an overbreadth challenge fails, “whatever overbreadth may exist should 

be cured through case-by-case analysis of the fact 

situations to which” a statute, “assertedly, may not 

be applied”). 

As applied in this case, BCRA’s disclaimer, disclosure, and reporting requirements violate the First 

Amendment because the application of those requirements to Citizens United’s advertisements and 

movie does not further a compelling—or even an important—government interest. 
43

A. The Disclaimer, Disclosure, And 

Reporting Requirements Cannot 

Survive Strict Scrutiny. 

Unlike in McConnell, where the plaintiffs faced 

the “heavy burden” of demonstrating the facial invalidity of BCRA’s disclaimer, disclosure, and reporting 

requirements (540 U.S. at 207), in this as-applied 

challenge, the government bears the burden of establishing that the speech restrictions imposed by these 

provisions are compatible with the First Amendment. WRTL II, 127 S. Ct. at 2664 (opinion of Roberts, C.J.); Bellotti, 435 U.S. at 786. 

To meet this burden, the government must satisfy 

the stringent requirements of strict scrutiny because 

it is defending the constitutionality of content-based 

restrictions on political speech. WRTL II, 127 S. Ct. 

at 2664 (opinion of Roberts, C.J.); see also MCFL, 479 

U.S. at 256, 261; Buckley v. Am. Constitutional Law 

Found., Inc., 525 U.S. 182, 192 n.12 (1999). This 

Court’s review of BCRA’s oral and written disclaimer 

requirements should be especially stringent because 

those requirements compel Citizens United “to utter 

statements” in its advertisements and political 

documentary that it “would rather avoid.” Hurley v. 

Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 

515 U.S. 557, 573 (1995) (internal quotation marks 

omitted). The Court examines such compelled 

speech requirements with particular skepticism. See 

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

798, 800 (1988) (the government may “not dictate the 

content of speech absent [a] compelling necessity” 

that is furthered by “narrowly tailored” means). 

The application of BCRA § 201 and BCRA § 311 

to Citizens United’s movie and advertisements cannot survive strict scrutiny. As the government con-
44

cedes, the only arguably compelling governmental 

interest in the campaign-finance setting—the government’s interest in preventing corruption and the 

appearance of corruption—is inapplicable to electioneering communications that are not express advocacy or the functional equivalent of express advocacy. WRTL II, 127 S. Ct. at 2671-72 (opinion of Roberts, C.J.); see also Def.’s Mot. for Summ. J. 19 n.12. 

Because it is undisputed that Citizens United’s advertisements are not express advocacy or its functional equivalent—and because the district court 

erred when it concluded that Citizens United’s 

documentary movie was the functional equivalent of 

express advocacy (see supra Part I)—the government 

does not have a compelling interest in applying 

BCRA’s disclaimer, disclosure, and reporting requirements to the advertisements or the movie. As 

applied to Citizens United, those requirements are 

therefore unconstitutional. 

B. The Disclaimer, Disclosure, And 

Reporting Requirements Cannot 

Survive Exacting Scrutiny. 

Perhaps recognizing that it cannot prevail under 

strict scrutiny, the government contends that socalled “exacting scrutiny” applies to BCRA’s disclaimer, disclosure, and reporting requirements.

Under exacting scrutiny, there must be a “substantial relation” between a “sufficiently important” 

“governmental interest and the information required 

to be disclosed.” Buckley, 424 U.S. at 64, 66. The 

application of these requirements to restrictions on 

political speech is virtually indistinguishable from 

strict scrutiny. See, e.g., McIntyre v. Ohio Elections 

Comm’n, 514 U.S. 334, 347 (1995) (requiring narrow 
45

tailoring as part of exacting scrutiny); Bellotti, 435 

U.S. at 786, 795 (requiring a compelling interest). 

Although the better view is that strict scrutiny 

applies to any content-based restriction on political 

speech (WRTL II, 127 S. Ct. at 2664 (opinion of Roberts, C.J.))—including BCRA’s disclaimer, disclosure, 

and reporting requirements—the distinction between 

strict and exacting scrutiny is ultimately irrelevant 

in this case because the government cannot satisfy 

either standard. In McConnell, the Court identified 

three “important” governmental interests that could 

conceivably sustain the application of BCRA’s disclaimer, disclosure, and reporting requirements: 

“providing the electorate with information, deterring 

actual corruption and avoiding any appearance 

thereof, and gathering the data necessary to enforce 

more substantive electioneering restrictions.” 540 

U.S. at 196; see also Buckley, 424 U.S. at 66-68. 

None of these “important” governmental interests is 

applicable in this case. 

1. BCRA’s Disclaimer Requirements 

Are Unconstitutional As Applied To 

Citizens United. 

The First Amendment generally gives a speaker 

the right to choose what to say and “what not to say.” 

Hurley, 515 U.S. at 573. This includes the choice not 

to utter “statements of fact the speaker would rather 

avoid.” Id.; see also Riley, 487 U.S. at 797-98. These 

First Amendment principles apply with particular 

force to measures that require a speaker to disclose 

his identity. See McIntyre, 514 U.S. at 348 (“the 

identity of the speaker is no different from other 

components of [a] document’s content that the author 

is free to include or exclude”). For that reason, the 

Court has repeatedly invalidated such requirements. 
46

Id.; see also Talley v. California, 362 U.S. 60, 64-65 

(1960). 

BCRA § 311 would require Citizens United to include oral and written disclaimers in its advertisements for Hillary identifying itself as responsible for 

the content of those advertisements. The government concedes that its interest in deterring actual 

corruption and avoiding the appearance of corruption 

cannot sustain the application of BCRA’s disclaimer 

requirements to Citizens United’s advertisements 

because they are not express advocacy or the functional equivalent of express advocacy. Neither of the 

government’s other purportedly “important” interests is sufficient to uphold the application of BCRA’s 

disclaimer requirements to Citizens United. 

a. The disclaimer requirements cannot be upheld 

in this case based on the government’s interest in 

“providing the electorate with information.” McConnell, 540 U.S. at 196. 

Citizens United’s advertisements promote its 

documentary film about a presidential candidate and 

attempt to persuade viewers to see the movie in a 

theater, purchase it on DVD, or download it through 

Video On Demand. It is undisputed that the advertisements neither expressly nor impliedly advocate 

the election or defeat of that candidate. A disclaimer 

informing viewers that Citizens United funded these 

advertisements therefore would not provide viewers 

with relevant “electora[l] . . . information.” At most, 

it would provide the public with information that 

may bear upon their decision whether to view the 

movie. But this Court has never suggested (and the 

government has not argued) that the Federal Election Commission has any business at all—much less 

an important governmental interest—in providing 
47

viewers with information that may be relevant to 

their selection of documentary movies. See Buckley, 

424 U.S. at 80 (narrowing FECA’s reporting requirement to “spending that is unambiguously related to the campaign of a particular federal candidate” in order to avoid vagueness and overbreadth 

problems). 

In any event, it is unclear how the information 

conveyed in BCRA’s disclaimer requirements would 

help viewers evaluate the advertisements’ message 

that they should buy tickets for, purchase, or 

download Hillary. As this Court has recognized, 

“[p]eople are intelligent enough to evaluate the 

source of an anonymous writing” and fully capable of 

“evaluat[ing] its anonymity along with its message.” 

McIntyre, 514 U.S. at 348 n.11 (internal quotation 

marks omitted). If viewers are unclear about who is 

responsible for the advertisements promoting 

Hillary, then they will presumably discount the advertisements’ message and will be less likely to follow their exhortation to view the movie. 

Moreover, the underinclusivity of BCRA’s disclaimer requirements belies the notion that the government enacted those measures to further some illdefined interest in providing information to members 

of the public considering whether to view a political 

documentary. The fact that the disclaimer requirements apply exclusively to broadcast advertisements—and do not extend to print or Internet advertising—makes it highly unlikely that these requirements were enacted to further the government’s purported informational interest. If Congress were truly 

enacting legislation to advance that interest, it would 

not have left large swaths of documentary-related 

advertising unregulated. See Bellotti, 435 U.S. at 

765 (“singl[ing] out” “a particular kind of” speech for 
48

regulation “undermines the likelihood of a genuine 

state interest”).3 

b. The government’s interest in “gathering the 

data necessary to enforce more substantive electioneering restrictions” also is insufficient to uphold 

BCRA’s disclaimer requirements in this case. 

McConnell, 540 U.S. at 196. 

The government’s so-called “enforcement” interest 

is inapplicable where the substantive campaignfinance restrictions underlying that interest cannot 

be enforced against the person from whom the government seeks to “gather[ ] . . . data.” For that reason, in Davis, the Court invalidated the disclosure 

requirements of BCRA’s “Millionaire’s Amendment” 

because the substantive contribution limits that the 

“disclosure requirements were designed to implement” were unconstitutional. 128 S. Ct. at 2775. 

Here, the only “substantive electioneering restriction” that BCRA’s disclaimer requirements could 

conceivably be designed to implement—the prohibition on corporate electioneering communications—is 

unconstitutional as applied to Citizens United’s advertisements because those advertisements are not 

express advocacy or its functional equivalent. Def.’s 

Mot. for Summ. J. 19 n.12. The government thus has 

no legitimate interest in using BCRA’s disclaimer requirements to “gather[ ] . . . data” about the person 

responsible for those advertisements because that 

 

3 The imposition of BCRA’s disclaimer requirements on advertisements for political documentaries is also far removed 

from Congress’s authority under Article I, Section 4 of the Constitution to regulate elections, which is the constitutional authority that presumably underpins Congress’s enactment of 

BCRA. 
49

information cannot be used for enforcement purposes. 

c. Even if there were a marginal informational or 

enforcement benefit attributable to the application of 

BCRA’s disclaimer requirements to Citizens United’s 

advertisements, that benefit would be outweighed by 

the fact that the disclaimer requirements substantially decrease both the quantity and effectiveness of 

Citizens United’s speech, while substantially increasing its cost. 

This Court has often invalidated laws that “interfere[ ] with a speaker’s desired message.” Rumsfeld 

v. Forum for Academic & Institutional Rights, Inc., 

547 U.S. 47, 64 (2006); see also Riley, 487 U.S. at 

799. These constitutional concerns apply with full 

force in the campaign-finance context, where the 

Court has repeatedly expressed reservations about 

“restriction[s] on the quantity of political expression.” 

Buckley, 424 U.S. at 55 (emphasis added); see also 

Am. Constitutional Law Found., 525 U.S. at 194-95. 

BCRA’s disclaimer requirements impose a substantial burden on Citizens United’s speech. It 

takes approximately four seconds to utter the oral 

disclaimer that “Citizens United is responsible for 

the content of this advertising.” The oral disclaimer 

would therefore consume at least 40% of Citizens 

United’s 10-second advertisements and 13% of its 30-

second advertisement. The disclaimer—along with 

contact information for Citizens United—must also 

appear on the screen for at least four seconds of each 

advertisement. 

Complying with these disclaimer requirements 

would significantly impair Citizens United’s ability 

to use these advertisements to promote Hillary. Citizens United would no longer be able to use the 10-
50

second advertisements to communicate its 10-second 

promotional message to viewers. It would instead be 

required either to expend additional funds to pay for 

a longer advertisement sufficient to convey its 10-

second promotional message as well as BCRA’s oral 

disclaimer, or to reduce that promotional message to 

no more than six seconds’ duration. The oral and 

written disclaimers would also distort the message of 

Citizens United’s advertisements by suggesting to 

viewers—most of whom are undoubtedly familiar 

with the disclaimers from the ubiquitous campaign 

advertisements aired preceding every election—that 

those advertisements convey a campaign-related 

message, rather than a message promoting a documentary film. Those viewers disinterested in political advertising may interpret BCRA’s disclaimers as 

a signal to tune out Citizens United’s advertisements 

altogether. 

The government’s informational and enforcement 

interests—which have, at most, minimal force in this 

case—are a constitutionally insufficient ground for 

imposing these serious constraints on Citizens 

United’s ability to promote its political documentary. 

See Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 

241, 243, 258 (1974) (invalidating a right-to-reply 

statute partly because of the financial and opportunity costs of the speech that the statute compelled).4 

4 In any event, even if some burden on Citizens United’s 

speech were constitutionally tolerable, the governmentauthored disclaimers would not be sufficiently tailored to further its informational and enforcement interests because the 

government could convey the same information to viewers by 

shortening the oral disclaimer to “_____ is responsible for this 

ad” and omitting the redundant written disclaimer that the 

communication was not approved by any candidate or candidate’s committee. This alternative formulation would remove 
51

2. BCRA’s Disclosure Requirements 

Are Unconstitutional As Applied To 

Citizens United. 

For many of the same reasons, neither the government’s informational interest nor its enforcement 

interest is sufficient to uphold the application of 

BCRA’s disclosure requirements to Citizens United. 

a. This Court has recognized that, where speech 

constitutes express advocacy or the functional 

equivalent of express advocacy, disclosing the identity of the donors who fund that speech may “provide[ ] the electorate with information ‘as to where 

political campaign money comes from’ . . . in order to 

aid the voters in evaluating those who seek federal 

office.” Buckley, 424 U.S. at 66-67. In facially upholding BCRA § 201’s disclosure requirements, 

McConnell similarly concluded that the “First 

Amendment interests of individual citizens seeking 

to make informed choices in the political marketplace” can be an adequate basis for requiring persons 

engaged in campaign-related speech to disclose donor 

information. 540 U.S. at 197 (internal quotation 

marks omitted). 

This informational interest is inapplicable to Citizens United’s advertisements because they do not 

expressly or impliedly advocate a candidate’s election 

or defeat. They instead promote a documentary 

movie about a political candidate and attempt to persuade viewers to see the movie in a theater, purchase 

it on DVD, or download it through Video On De-

 

[Footnote continued from previous page]

approximately two seconds from the oral disclaimer and minimize the oral and written disclaimers’ distorting effect on Citizens United’s promotional message. 
52

mand. Although providing viewers with information 

about the source of funding for these advertisements 

could theoretically help them make informed movieselection decisions—at least if one indulges the assumption that viewers will examine the FEC’s voluminous donor records before deciding whether to 

view the movie promoted by Citizens United’s advertisements—it will not help viewers “make informed 

choices in the political marketplace.” McConnell, 540 

U.S. at 197 (internal quotation marks omitted); see 

also N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 

282-83 (4th Cir. 2008) (“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 government’s invocation of its purported informational interest in this case has no logical stopping point. If the government is correct that this interest can sustain the imposition of extensive disclosure requirements on a person that funds a television advertisement promoting a political documentary film, the government could similarly rely on 

that interest to regulate publishers’ and retailers’ 

advertisements for other political works, such as 

candidate autobiographies. And, if that is the case, 

then BCRA is fatally underinclusive because it does 

not reach advertisements in nonbroadcast formats. 

See Fla. Star v. B.J.F., 491 U.S. 524, 540-41 (1989) 

(holding that a statute prohibiting the publication of 

particular information in certain media but not in 

others was unconstitutionally underinclusive). 

b. The government’s enforcement interest is similarly insufficient to uphold BCRA’s disclosure requirements in this case. Although disclosure requirements may sometimes be a valid means of 
53

gathering data necessary “to detect violations” of 

“more substantive electioneering restrictions” 

(McConnell, 540 U.S. at 196), the government has 

conceded that those “more substantive restrictions”—BCRA’s prohibition on corporate electioneering communications—cannot be imposed upon Citizens United’s advertisements because those advertisements are not express advocacy or its functional 

equivalent. The government therefore has no 

enforcement-based interest in mandating the disclosure of Citizens United’s donors. See Davis, 128 S. 

Ct. at 2775. 

c. Moreover, any informational or enforcement 

interest that the government has in applying BCRA’s 

disclosure requirements to Citizens United’s advertisements is outweighed by the significant burdens 

that those requirements would impose on the First 

Amendment rights of Citizens United and its donors. 

Compelled donor disclosure can have grave consequences for a political organization’s financial supporters. As this Court has recognized, disclosing the 

identity of an organization’s supporters can “expose 

contributors to harassment or retaliation” by those 

who disagree with the group’s political message. 

Buckley, 424 U.S. at 68. For this reason, disclosure 

requirements are unconstitutional where the organization challenging the requirements can demonstrate “a reasonable probability that the compelled 

disclosure of [the organization’s] contributors’ names 

will subject them to threats, harassment, or reprisals.” McConnell, 540 U.S. at 198 (internal quotation 

marks omitted); see also Brown v. Socialist Workers 

’74 Campaign Comm., 459 U.S. 87, 88 (1982); 

NAACP v. Alabama, 357 U.S. 449, 451, 462-63 

(1958).
54

Public disclosure of Citizens United’s donors 

would also have adverse consequences for Citizens 

United itself because it could not file the requisite 

disclosure statement with the FEC without incurring 

substantial administrative costs. See MCFL, 479 

U.S. at 254 (plurality opinion) (“[d]etailed recordkeeping and disclosure obligations . . . impose administrative costs that many small entities may be unable to bear”). Moreover, even if Citizens United 

were able to absorb these costs, public disclosure 

would inevitably deter some of its donors from making future contributions—further weakening Citizens United’s financial position and impairing its 

ability to continue communicating its political message to the public. Buckley, 424 U.S. at 68. 

Deterring future donations would also infringe 

upon the associational rights of Citizens United’s donors, many of whom “contribute to” the organization 

“in part because they regard such a contribution as a 

more effective means of advocacy than spending the 

money under their own personal direction.” MCFL, 

479 U.S. at 261; see also NAACP, 357 U.S. at 460, 

462. By deterring future contributions, the application of BCRA’s disclosure requirements would chill 

the constitutionally protected political speech of Citizens United’s supporters. 

d. None of the decisions on which the district 

court relied is sufficient to sustain the disclosure requirements’ application to Citizens United. 

The district court’s reliance on MCFL is misplaced. J.A. 208a. As an initial matter, the Court 

did not squarely address whether donor disclosure 

requirements can constitutionally be applied to 

MCFL corporations, but instead observed that, on 

their own terms, the disclosure provisions of FECA 
55

would extend to such organizations. 479 U.S. at 262. 

MCFL therefore did not determine the bounds of the 

government’s constitutional authority to mandate 

donor disclosure. In any event, the donor disclosure 

provisions at issue in MCFL applied only to “communications that expressly advocate the election or 

defeat of a clearly identified candidate.” Id. at 248-

49. But it is undisputed that Citizens United’s advertisements are not express advocacy or its functional equivalent. Thus, even if an MCFL corporation that engages in express advocacy can be required to disclose its funding sources in order to further the government’s informational or enforcement 

interest, those interests are inapplicable to corporate 

speech that promotes the sale and download of a 

documentary film about a political candidate. 

The district court also invoked a footnote in Bellotti, where the Court hinted that it might view disclosure requirements more favorably than outright 

prohibitions on corporate political speech. J.A. 208a 

(citing Bellotti, 435 U.S. at 791 n.32). But the Court 

has already dismissed that footnote as “dicta.” McIntyre, 514 U.S. at 353-54. Moreover, that dicta “did 

not necessarily apply to [all] independent communications” but is instead confined to disclosure requirements for coordinated expenditures, which are 

not at issue in this case. Id. at 354; see also id. (noting that Buckley—on which the Bellotti footnote relied—“concerned contributions to the candidate or 

expenditures authorized by the candidate”). Finally, 

Bellotti referred to the possible disclosure of the 

“source of advertising,” but it apparently did not contemplate the extensive donor disclosure requirements that BCRA imposes on persons who fund electioneering communications. 435 U.S. at 792 n.32.
56

Nor does Citizens Against Rent Control v. City of 

Berkeley, 454 U.S. 290 (1981), support the district 

court’s conclusion. As in MCFL and Bellotti, the 

Court did not squarely consider the constitutionality 

of the municipal disclosure provision referenced in 

that case. In any event, the disclosure provision in 

Citizens Against Rent Control is readily distinguishable from BCRA’s disclosure requirements because it 

only mandated disclosure of significant contributors 

“twice during the last seven days of a campaign.” Id.

at 294 n.4. In contrast, BCRA imposes substantially 

more onerous requirements that mandate the periodic disclosure of donors funding electioneering 

communications. 2 U.S.C. § 434(f); 11 C.F.R. 

§ 104.20. Moreover, the disclosure requirement in 

Citizens Against Rent Control was a narrowly tailored provision that applied only to committees that 

were formed to support or oppose ballot measures. 

See 454 U.S. at 291, 294 n.4. The reach of BCRA 

§ 201 extends well beyond the electoral setting, extending to any broadcast communication that mentions a candidate for federal office in the period preceding an election. The Court’s passing reference to 

the modest disclosure requirement in Citizens 

Against Rent Control thus has little, if any, bearing 

on BCRA.

Ultimately, the district court’s reliance on these 

decisions seems to be premised on the assumption 

that imposing disclosure requirements is less constitutionally problematic than banning communications 

outright. The district court’s “it could be worse” rationale is a manifestly insufficient basis for upholding the application of BCRA’s disclosure requirements to Citizens United. 
57

3. BCRA’s Reporting Requirements 

Are Unconstitutional As Applied To 

Citizens United. 

BCRA § 201 also imposes a reporting requirement 

that provides that, within 24 hours of each statutory 

“disclosure date,” the person funding the communication must submit a statement to the FEC identifying 

itself as responsible for funding the communication. 

2 U.S.C. § 434(f). The application of that requirement to Citizens United’s advertisements is also unconstitutional. 

The government’s informational interest is inadequate to sustain the application of BCRA’s reporting 

requirements to Citizens United’s advertisements 

because those advertisements promote a documentary movie and reporting their airing to the FEC 

therefore would not provide the electorate with information relevant to their voting decisions. Moreover, the government’s enforcement interest is also 

insufficient because the government has acknowledged that it cannot constitutionally prohibit Citizens United’s advertisements, and there accordingly 

is no possibility that the government will “detect violations” of “more substantive electioneering restrictions” from Citizens United’s reporting. McConnell, 

540 U.S. at 196; see also Davis, 128 S. Ct. at 2775. 

Like the disclaimer and disclosure requirements, 

BCRA’s reporting requirements are therefore unconstitutional as applied to Citizens United.5 

 

5 Although the foregoing analysis is focused on the application of BCRA’s disclaimer, disclosure, and reporting requirements to Citizens United’s advertisements, those requirements 

are also unconstitutional as applied to the movie itself. As explained above (see supra Part I), the movie is not express advo-
58

CONCLUSION 

The judgment of the district court should be reversed. 

Respectfully submitted. 

THEODORE B. OLSON

 Counsel of Record

MATTHEW D. MCGILL

AMIR C. TAYRANI

JUSTIN S. HERRING

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 955-8500 

Counsel for Appellant 

January 8, 2009 

 

[Footnote continued from previous page]

cacy or its functional equivalent. The application of the disclaimer, disclosure, and reporting requirements to the Video On 

Demand distribution of the movie therefore would not further 

the government’s anti-corruption interest. Because the government cannot prohibit the movie under BCRA’s prohibition 

on corporate electioneering communications, its enforcement 

interest also is not implicated. Finally, the government’s informational interest is insufficient to sustain this application of 

the disclaimer, disclosure, and reporting requirements because 

the movie itself contains extensive credits that identify Citizens 

United as responsible for the movie and that disclose the names 

of the individuals who worked on the movie and a number of 

the persons who funded it. The application of BCRA’s disclaimer, disclosure, and reporting requirements to the movie 

would therefore provide viewers with little information not already included in the movie itself. 
APPENDIX 
1a

2 U.S.C. § 434 provides in relevant part: 

§ 434. Reporting requirements 

* * * 

(f) Disclosure of electioneering communications 

(1) Statement required 

Every person who makes a disbursement for the 

direct costs of producing and airing electioneering 

communications in an aggregate amount in excess of 

$10,000 during any calendar year shall, within 24 

hours of each disclosure date, file with the Commission a statement containing the information described in paragraph (2). 

(2) Contents of statement 

Each statement required to be filed under this 

subsection shall be made under penalty of perjury 

and shall contain the following information: 

(A) The identification of the person making the 

disbursement, of any person sharing or exercising 

direction or control over the activities of such person, 

and of the custodian of the books and accounts of the 

person making the disbursement. 

(B) The principal place of business of the person 

making the disbursement, if not an individual. 

(C) The amount of each disbursement of more 

than $200 during the period covered by the statement and the identification of the person to whom 

the disbursement was made. 
2a

(D) The elections to which the electioneering 

communications pertain and the names (if known) of 

the candidates identified or to be identified. 

(E) If the disbursements were paid out of a segregated bank account which consists of funds contributed solely by individuals who are United States 

citizens or nationals or lawfully admitted for permanent residence (as defined in section 1101(a)(20) of 

Title 8) directly to this account for electioneering 

communications, the names and addresses of all contributors who contributed an aggregate amount of 

$1,000 or more to that account during the period beginning on the first day of the preceding calendar 

year and ending on the disclosure date. Nothing in 

this subparagraph is to be construed as a prohibition 

on the use of funds in such a segregated account for a 

purpose other than electioneering communications. 

(F) If the disbursements were paid out of funds 

not described in subparagraph (E), the names and 

addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making the disbursement during the period beginning on 

the first day of the preceding calendar year and ending on the disclosure date. 

(3) Electioneering communication 

For purposes of this subsection— 

(A) In general

(i) The term “electioneering communication” 

means any broadcast, cable, or satellite communication which— 

(I) refers to a clearly identified candidate for 

Federal office; 
3a

(II) is made within— 

(aa) 60 days before a general, special, or runoff 

election for the office sought by the candidate; or 

(bb) 30 days before a primary or preference election, or a convention or caucus of a political party 

that has authority to nominate a candidate, for the 

office sought by the candidate; and 

(III) in the case of a communication which refers 

to a candidate for an office other than President or 

Vice President, is targeted to the relevant electorate. 

(ii) If clause (i) is held to be constitutionally insufficient by final judicial decision to support the 

regulation provided herein, then the term “electioneering communication” means any broadcast, cable, 

or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of 

whether the communication expressly advocates a 

vote for or against a candidate) and which also is 

suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate. 

Nothing in this subparagraph shall be construed to 

affect the interpretation or application of section 

100.22(b) of title 11, Code of Federal Regulations. 

(B) Exceptions 

The term “electioneering communication” does 

not include— 

(i) a communication appearing in a news story, 

commentary, or editorial distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any political party, 

political committee, or candidate; 
4a

(ii) a communication which constitutes an expenditure or an independent expenditure under this 

Act; 

(iii) a communication which constitutes a candidate debate or forum conducted pursuant to regulations adopted by the Commission, or which solely 

promotes such a debate or forum and is made by or 

on behalf of the person sponsoring the debate or forum; or 

(iv) any other communication exempted under 

such regulations as the Commission may promulgate 

(consistent with the requirements of this paragraph) 

to ensure the appropriate implementation of this 

paragraph, except that under any such regulation a 

communication may not be exempted if it meets the 

requirements of this paragraph and is described in 

section 431(20)(A)(iii) of this title. 

(C) Targeting to relevant electorate 

For purposes of this paragraph, a communication 

which refers to a clearly identified candidate for Federal office is “targeted to the relevant electorate” if 

the communication can be received by 50,000 or more 

persons— 

(i) in the district the candidate seeks to represent, in the case of a candidate for Representative in, 

or Delegate or Resident Commissioner to, the Congress; or 

(ii) in the State the candidate seeks to represent, 

in the case of a candidate for Senator. 

(4) Disclosure date

For purposes of this subsection, the term “disclosure date” means— 
5a

(A) the first date during any calendar year by 

which a person has made disbursements for the direct costs of producing or airing electioneering communications aggregating in excess of $10,000; and 

(B) any other date during such calendar year by 

which a person has made disbursements for the direct costs of producing or airing electioneering communications aggregating in excess of $10,000 since 

the most recent disclosure date for such calendar 

year. 

(5) Contracts to disburse 

For purposes of this subsection, a person shall be 

treated as having made a disbursement if the person 

has executed a contract to make the disbursement. 

(6) Coordination with other requirements 

Any requirement to report under this subsection 

shall be in addition to any other reporting requirement under this Act. 

(7) Coordination with Internal Revenue 

Code 

Nothing in this subsection may be construed to 

establish, modify, or otherwise affect the definition of 

political activities or electioneering activities (including the definition of participating in, intervening in, 

or influencing or attempting to influence a political 

campaign on behalf of or in opposition to any candidate for public office) for purposes of the Internal 

Revenue Code of 1986. 

* * * 
6a

2 U.S.C. § 441b provides: 

§ 441b. Contributions or expenditures by 

national banks, corporations, or labor organizations

(a) It is unlawful for any national bank, or any 

corporation organized by authority of any law of 

Congress, to make a contribution or expenditure in 

connection with any election to any political office, or 

in connection with any primary election or political 

convention or caucus held to select candidates for 

any political office, or for any corporation whatever, 

or any labor organization, to make a contribution or 

expenditure in connection with any election at which 

presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident 

Commissioner to, Congress are to be voted for, or in 

connection with any primary election or political 

convention or caucus held to select candidates for 

any of the foregoing offices, or for any candidate, political committee, or other person knowingly to accept or receive any contribution prohibited by this 

section, or any officer or any director of any corporation or any national bank or any officer of any labor 

organization to consent to any contribution or expenditure by the corporation, national bank, or labor organization, as the case may be, prohibited by this 

section. 

(b)(1) For the purposes of this section the term 

“labor organization” means any organization of any 

kind, or any agency or employee representation 

committee or plan, in which employees participate 

and which exists for the purpose, in whole or in part, 

of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. 
7a

(2) For purposes of this section and section 79l(h) 

of Title 15, the term “contribution or expenditure” 

includes a contribution or expenditure, as those 

terms are defined in section 431 of this title, and also 

includes any direct or indirect payment, distribution, 

loan, advance, deposit, or gift of money, or any services, or anything of value (except a loan of money by 

a national or State bank made in accordance with 

the applicable banking laws and regulations and in 

the ordinary course of business) to any candidate, 

campaign committee, or political party or organization, in connection with any election to any of the offices referred to in this section or for any applicable 

electioneering communication, but shall not include 

(A) communications by a corporation to its stockholders and executive or administrative personnel 

and their families or by a labor organization to its 

members and their families on any subject; (B) nonpartisan registration and get-out-the-vote campaigns 

by a corporation aimed at its stockholders and executive or administrative personnel and their families, 

or by a labor organization aimed at its members and 

their families; and (C) the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation, labor organization, membership organization, cooperative, or corporation without capital stock. 

(3) It shall be unlawful— 

(A) for such a fund to make a contribution or expenditure by utilizing money or anything of value 

secured by physical force, job discrimination, financial reprisals, or the threat of force, job discrimination, or financial reprisal; or by dues, fees, or other 

moneys required as a condition of membership in a 

labor organization or as a condition of employment, 
8a

or by moneys obtained in any commercial transaction; 

(B) for any person soliciting an employee for a 

contribution to such a fund to fail to inform such employee of the political purposes of such fund at the 

time of such solicitation; and 

(C) for any person soliciting an employee for a 

contribution to such a fund to fail to inform such employee, at the time of such solicitation, of his right to 

refuse to so contribute without any reprisal. 

(4)(A) Except as provided in subparagraphs (B), 

(C), and (D), it shall be unlawful— 

(i) for a corporation, or a separate segregated 

fund established by a corporation, to solicit contributions to such a fund from any person other than its 

stockholders and their families and its executive or 

administrative personnel and their families, and 

(ii) for a labor organization, or a separate segregated fund established by a labor organization, to solicit contributions to such a fund from any person 

other than its members and their families. 

(B) It shall not be unlawful under this section for 

a corporation, a labor organization, or a separate 

segregated fund established by such corporation or 

such labor organization, to make 2 written solicitations for contributions during the calendar year from 

any stockholder, executive or administrative personnel, or employee of a corporation or the families of 

such persons. A solicitation under this subparagraph 

may be made only by mail addressed to stockholders, 

executive or administrative personnel, or employees 

at their residence and shall be so designed that the 

corporation, labor organization, or separate segregated fund conducting such solicitation cannot determine who makes a contribution of $50 or less as a 
9a

result of such solicitation and who does not make 

such a contribution. 

(C) This paragraph shall not prevent a membership organization, cooperative, or corporation without capital stock, or a separate segregated fund established by a membership organization, cooperative, 

or corporation without capital stock, from soliciting 

contributions to such a fund from members of such 

organization, cooperative, or corporation without 

capital stock. 

(D) This paragraph shall not prevent a trade association or a separate segregated fund established 

by a trade association from soliciting contributions 

from the stockholders and executive or administrative personnel of the member corporations of such 

trade association and the families of such stockholders or personnel to the extent that such solicitation of 

such stockholders and personnel, and their families, 

has been separately and specifically approved by the 

member corporation involved, and such member corporation does not approve any such solicitation by 

more than one such trade association in any calendar 

year. 

(5) Notwithstanding any other law, any method 

of soliciting voluntary contributions or of facilitating 

the making of voluntary contributions to a separate 

segregated fund established by a corporation, permitted by law to corporations with regard to stockholders and executive or administrative personnel, 

shall also be permitted to labor organizations with 

regard to their members. 

(6) Any corporation, including its subsidiaries, 

branches, divisions, and affiliates, that utilizes a 

method of soliciting voluntary contributions or facilitating the making of voluntary contributions, shall 
10a

make available such method, on written request and 

at a cost sufficient only to reimburse the corporation 

for the expenses incurred thereby, to a labor organization representing any members working for such 

corporation, its subsidiaries, branches, divisions, and 

affiliates. 

(7) For purposes of this section, the term “executive or administrative personnel” means individuals 

employed by a corporation who are paid on a salary, 

rather than hourly, basis and who have policymaking, managerial, professional, or supervisory responsibilities. 

(c) Rules relating to electioneering communications

(1) Applicable electioneering communication 

For purposes of this section, the term “applicable 

electioneering communication” means an electioneering communication (within the meaning of section 

434(f)(3) of this title) which is made by any entity described in subsection (a) of this section or by any 

other person using funds donated by an entity described in subsection (a) of this section. 

(2) Exception 

Notwithstanding paragraph (1), the term “applicable electioneering communication” does not include 

a communication by a section 501(c)(4) organization 

or a political organization (as defined in section 

527(e)(1) of Title 26) made under section 434(f)(2)(E) 

or (F) of this title if the communication is paid for exclusively by funds provided directly by individuals 

who are United States citizens or nationals or lawfully admitted for permanent residence (as defined in 

section 1101(a)(20) of Title 8). For purposes of the 

preceding sentence, the term “provided directly by 
11a

individuals” does not include funds the source of 

which is an entity described in subsection (a) of this 

section. 

(3) Special operating rules 

(A) Definition under paragraph (1) 

An electioneering communication shall be 

treated as made by an entity described in subsection 

(a) of this section if an entity described in subsection 

(a) of this section directly or indirectly disburses any 

amount for any of the costs of the communication. 

(B) Exception under paragraph (2) 

A section 501(c)(4) organization that derives 

amounts from business activities or receives funds 

from any entity described in subsection (a) of this 

section shall be considered to have paid for any 

communication out of such amounts unless such organization paid for the communication out of a segregated account to which only individuals can contribute, as described in section 434(f)(2)(E) of this title. 

(4) Definitions and rules 

For purposes of this subsection— 

(A) the term “section 501(c)(4) organization” 

means— 

(i) an organization described in section 501(c)(4) 

of Title 26 and exempt from taxation under section 

501(a) of such title; or 

(ii) an organization which has submitted an application to the Internal Revenue Service for determination of its status as an organization described in 

clause (i); and 
12a

(B) a person shall be treated as having made a 

disbursement if the person has executed a contract to 

make the disbursement. 

(5) Coordination with Title 26 

Nothing in this subsection shall be construed to 

authorize an organization exempt from taxation under section 501(a) of Title 26 to carry out any activity 

which is prohibited under such title. 

(6) Special rules for targeted communications 

(A) Exception does not apply

Paragraph (2) shall not apply in the case of a 

targeted communication that is made by an organization described in such paragraph. 

(B) Targeted communication

For purposes of subparagraph (A), the term “targeted communication” means an electioneering 

communication (as defined in section 434(f)(3) of this 

title) that is distributed from a television or radio 

broadcast station or provider of cable or satellite 

television service and, in the case of a communication which refers to a candidate for an office other 

than President or Vice President, is targeted to the 

relevant electorate. 

(C) Definition 

For purposes of this paragraph, a communication 

is “targeted to the relevant electorate” if it meets the 

requirements described in section 434(f)(3)(C) of this 

title. 
13a

2 U.S.C. § 441d provides: 

§ 441d. Publication and distribution of 

statements and solicitations 

(a) Whenever a political committee makes a disbursement for the purpose of financing any communication through any broadcasting station, newspaper, magazine, outdoor advertising facility, mailing, 

or any other type of general public political advertising, or whenever any person makes a disbursement 

for the purpose of financing communications expressly advocating the election or defeat of a clearly 

identified candidate, or solicits any contribution 

through any broadcasting station, newspaper, magazine, outdoor advertising facility, mailing, or any 

other type of general public political advertising or 

makes a disbursement for an electioneering communication (as defined in section 434(f)(3) of this title), 

such communication— 

(1) if paid for and authorized by a candidate, an 

authorized political committee of a candidate, or its 

agents, shall clearly state that the communication 

has been paid for by such authorized political committee, or 

(2) if paid for by other persons but authorized by 

a candidate, an authorized political committee of a 

candidate, or its agents, shall clearly state that the 

communication is paid for by such other persons and 

authorized by such authorized political committee; 

(3) if not authorized by a candidate, an authorized political committee of a candidate, or its agents, 

shall clearly state the name and permanent street 

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

and state that the communication is not authorized 

by any candidate or candidate’s committee. 
14a

(b) No person who sells space in a newspaper or 

magazine to a candidate or to the agent of a candidate, for use in connection with such candidate’s 

campaign, may charge any amount for such space 

which exceeds the amount charged for comparable 

use of such space for other purposes. 

(c) Specification 

Any printed communication described in subsection (a) of this section shall— 

(1) be of sufficient type size to be clearly readable 

by the recipient of the communication; 

(2) be contained in a printed box set apart from 

the other contents of the communication; and 

(3) be printed with a reasonable degree of color 

contrast between the background and the printed 

statement. 

(d) Additional requirements 

(1) Communications by candidates or authorized persons

(A) By radio

Any communication described in paragraph (1) 

or (2) of subsection (a) of this section which is transmitted through radio shall include, in addition to the 

requirements of that paragraph, an audio statement 

by the candidate that identifies the candidate and 

states that the candidate has approved the communication. 

(B) By television 

Any communication described in paragraph (1) 

or (2) of subsection (a) of this section which is transmitted through television shall include, in addition to 

the requirements of that paragraph, a statement 

that identifies the candidate and states that the can-
15a

didate has approved the communication. Such 

statement— 

(i) shall be conveyed by— 

(I) an unobscured, full-screen view of the candidate making the statement, or 

(II) the candidate in voice-over, accompanied by 

a clearly identifiable photographic or similar image 

of the candidate; and 

(ii) shall also appear in writing at the end of the 

communication in a clearly readable manner with a 

reasonable degree of color contrast between the 

background and the printed statement, for a period 

of at least 4 seconds 

(2) Communications by others 

Any communication described in paragraph (3) of 

subsection (a) of this section which is transmitted 

through radio or television shall include, in addition 

to the requirements of that paragraph, in a clearly 

spoken manner, the following audio statement: 

“________ is responsible for the content of this advertising.” (with the blank to be filled in with the name 

of the political committee or other person paying for 

the communication and the name of any connected 

organization of the payor). If transmitted through 

television, the statement shall be conveyed by an unobscured, full-screen view of a representative of the 

political committee or other person making the 

statement, or by a representative of such political 

committee or other person in voice-over, and shall 

also appear in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at 

least 4 seconds. 
16a

11 C.F.R. § 100.29 provides: 

§ 100.29 Electioneering communication (2 

U.S.C. 434(f)(3)). 

(a) Electioneering communication means any 

broadcast, cable, or satellite communication that: 

(1) Refers to a clearly identified candidate for 

Federal office; 

(2) Is publicly distributed within 60 days before a 

general election for the office sought by the candidate; or within 30 days before a primary or preference election, or a convention or caucus of a political 

party that has authority to nominate a candidate, for 

the office sought by the candidate, and the candidate 

referenced is seeking the nomination of that political 

party; and 

(3) Is targeted to the relevant electorate, in the 

case of a candidate for Senate or the House of Representatives. 

(b) For purposes of this section— 

(1) Broadcast, cable, or satellite communication

means a communication that is publicly distributed 

by a television station, radio station, cable television 

system, or satellite system. 

(2) Refers to a clearly identified candidate means 

that the candidate’s name, nickname, photograph, or 

drawing appears, or the identity of the candidate is 

otherwise apparent through an unambiguous reference such as “the President,” “your Congressman,” or 

“the incumbent,” or through an unambiguous reference to his or her status as a candidate such as “the 

Democratic presidential nominee” or “the Republican 

candidate for Senate in the State of Georgia.” 

(3)(i) Publicly distributed means aired, broadcast, 

cablecast or otherwise disseminated through the fa-
17a

cilities of a television station, radio station, cable 

television system, or satellite system. 

(ii) In the case of a candidate for nomination for 

President or Vice President, publicly distributed

means the requirements of paragraph (b)(3)(i) of this 

section are met and the communication: 

(A) Can be received by 50,000 or more persons in 

a State where a primary election, as defined in 11 

CFR 9032.7, is being held within 30 days; or 

(B) Can be received by 50,000 or more persons 

anywhere in the United States within the period between 30 days before the first day of the national 

nominating convention and the conclusion of the 

convention. 

(4) A special election or a runoff election is a primary election if held to nominate a candidate. A special election or a runoff election is a general election 

if held to elect a candidate. 

(5) Targeted to the relevant electorate means the 

communication can be received by 50,000 or more 

persons— 

(i) In the district the candidate seeks to represent, in the case of a candidate for Representative in 

or Delegate or Resident Commissioner to, the Congress; or 

(ii) In the State the candidate seeks to represent, 

in the case of a candidate for Senator. 

(6)(i) Information on the number of persons in a 

Congressional district or State that can receive a 

communication publicly distributed by a television 

station, radio station, a cable television system, or 

satellite system, shall be available on the Federal 

Communications Commission’s Web site, 

http://www.fcc.gov. A link to that site is available on 
18a

the Federal Election Commission’s Web site, 

http://www.fec.gov. If the Federal Communications 

Commission’s Web site indicates that a communication cannot be received by 50,000 or more persons in 

the specified Congressional district or State, then 

such information shall be a complete defense against 

any charge that such communication constitutes an 

electioneering communication, so long as such information is posted on the Federal Communications 

Commission’s Web site on or before the date the 

communication is publicly distributed. 

(ii) If the Federal Communications Commission’s 

Web site does not indicate whether a communication 

can be received by 50,000 or more persons in the 

specified Congressional district or State, it shall be a 

complete defense against any charge that a communication reached 50,000 or more persons when the 

maker of a communication: 

(A) Reasonably relies on written documentation 

obtained from the broadcast station, radio station, 

cable system, or satellite system that states that the 

communication cannot be received by 50,000 or more 

persons in the specified Congressional district (for 

U.S. House of Representatives candidates) or State 

(for U.S. Senate candidates or presidential primary 

candidates); 

(B) Does not publicly distribute the communication on a broadcast station, radio station, or cable 

system, located in any Metropolitan Area in the 

specified Congressional district (for U.S. House of 

Representatives candidates) or State (for U.S. Senate 

candidates or presidential primary candidates); or 
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(C) Reasonably believes that the communication 

cannot be received by 50,000 or more persons in the 

specified Congressional district (for U.S. House of 

Representatives candidates) or State (for U.S. Senate 

candidates or presidential primary candidates). 

(7)(i) Can be received by 50,000 or more persons

means— 

(A) In the case of a communication transmitted 

by an FM radio broadcast station or network, where 

the Congressional district or State lies entirely 

within the station’s or network’s protected or primary service contour, that the population of the 

Congressional district or State is 50,000 or more; or 

(B) In the case of a communication transmitted 

by an FM radio broadcast station or network, where 

a portion of the Congressional district or State lies 

outside of the protected or primary service contour, 

that the population of the part of the Congressional 

district or State lying within the station’s or network’s protected or primary service contour is 50,000 

or more; or 

(C) In the case of a communication transmitted 

by an AM radio broadcast station or network, where 

the Congressional district or State lies entirely 

within the station’s or network’s most outward service area, that the population of the Congressional 

district or State is 50,000 or more; or 

(D) In the case of a communication transmitted 

by an AM radio broadcast station or network, where 

a portion of the Congressional district or State lies 

outside of the station’s or network’s most outward 

service area, that the population of the part of the 

Congressional district or State lying within the station’s or network’s most outward service area is 

50,000 or more; or 
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(E) In the case of a communication appearing on 

a television broadcast station or network, where the 

Congressional district or State lies entirely within 

the station’s or network’s Grade B broadcast contour, 

that the population of the Congressional district or 

State is 50,000 or more; or 

(F) In the case of a communication appearing on 

a television broadcast station or network, where a 

portion of the Congressional district or State lies 

outside of the Grade B broadcast contour— 

(1) That the population of the part of the Congressional district or State lying within the station’s 

or network’s Grade B broadcast contour is 50,000 or 

more; or 

(2) That the population of the part of the Congressional district or State lying within the station’s 

or network’s broadcast contour, when combined with 

the viewership of that television station or network 

by cable and satellite subscribers within the Congressional district or State lying outside the broadcast contour, is 50,000 or more; or 

(G) In the case of a communication appearing exclusively on a cable or satellite television system, but 

not on a broadcast station or network, that the viewership of the cable system or satellite system lying 

within a Congressional district or State is 50,000 or 

more; or 

(H) In the case of a communication appearing on 

a cable television network, that the total cable and 

satellite viewership within a Congressional district 

or State is 50,000 or more. 
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(ii) Cable or satellite television viewership is determined by multiplying the number of subscribers 

within a Congressional district or State, or a part 

thereof, as appropriate, by the current national average household size, as determined by the Bureau of 

the Census. 

(iii) A determination that a communication can 

be received by 50,000 or more persons based on the 

application of the formula at paragraph (b)(7)(i)(G) or 

(H) of this section shall create a rebuttable presumption that may be overcome by demonstrating that— 

(A) One or more cable or satellite systems did not 

carry the network on which the communication was 

publicly distributed at the time the communication 

was publicly distributed; and 

(B) Applying the formula to the remaining cable 

and satellite systems results in a determination that 

the cable network or systems upon which the communication was publicly distributed could not be received by 50,000 persons or more. 

(c) The following communications are exempt 

from the definition of electioneering communication. 

Any communication that: 

(1) Is publicly disseminated through a means of 

communication other than a broadcast, cable, or satellite television or radio station. For example, electioneering communication does not include communications appearing in print media, including a 

newspaper or magazine, handbill, brochure, bumper 

sticker, yard sign, poster, billboard, and other written materials, including mailings; communications 

over the Internet, including electronic mail; or telephone communications; 
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(2) Appears in a news story, commentary, or editorial distributed through the facilities of any broadcast, cable, or satellite television or radio station, 

unless such facilities are owned or controlled by any 

political party, political committee, or candidate. A 

news story distributed through a broadcast, cable, or 

satellite television or radio station owned or controlled by any political party, political committee, or 

candidate is nevertheless exempt if the news story 

meets the requirements described in 11 CFR 

100.132(a) and (b); 

(3) Constitutes an expenditure or independent 

expenditure provided that the expenditure or independent expenditure is required to be reported under 

the Act or Commission regulations; 

(4) Constitutes a candidate debate or forum conducted pursuant to 11 CFR 110.13, or that solely 

promotes such a debate or forum and is made by or 

on behalf of the person sponsoring the debate or forum; or 

(5) Is paid for by a candidate for State or local office in connection with an election to State or local 

office, provided that the communication does not 

promote, support, attack or oppose any Federal candidate. See 11 CFR 300.71 for communications paid 

for by a candidate for State or local office that promotes, supports, attacks or opposes a Federal candidate. 
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11 C.F.R. § 104.20 provides: 

§ 104.20 Reporting electioneering communications (2 U.S.C. 434(f)). 

(a) Definitions. 

(1) Disclosure date means: 

(i) The first date on which an electioneering communication is publicly distributed provided that the 

person making the electioneering communication has 

made one or more disbursements, or has executed 

one or more contracts to make disbursements, for the 

direct costs of producing or airing one or more electioneering communications aggregating in excess of 

$10,000; or 

(ii) Any other date during the same calendar year 

on which an electioneering communication is publicly 

distributed provided that the person making the 

electioneering communication has made one or more 

disbursements, or has executed one or more contracts to make disbursements, for the direct costs of 

producing or airing one or more electioneering communications aggregating in excess of $10,000 since 

the most recent disclosure date during such calendar 

year. 

(2) Direct costs of producing or airing electioneering communications means the following: 

(i) Costs charged by a vendor, such as studio 

rental time, staff salaries, costs of video or audio recording media, and talent; or 

(ii) The cost of airtime on broadcast, cable or satellite radio and television stations, studio time, material costs, and the charges for a broker to purchase 

the airtime. 

(3) Persons sharing or exercising direction or control means officers, directors, executive directors or 
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their equivalent, partners, and in the case of unincorporated organizations, owners, of the entity or 

person making the disbursement for the electioneering communication. 

(4) Identification has the same meaning as in 11 

CFR 100.12. 

(5) Publicly distributed has the same meaning as 

in 11 CFR 100.29(b)(3). 

(b) Who must report and when. Every person who 

has made an electioneering communication, as defined in 11 CFR 100.29, aggregating in excess of 

$10,000 during any calendar year shall file a statement with the Commission by 11:59 p.m. Eastern 

Standard/Daylight Time on the day following the 

disclosure date. The statement shall be filed under 

penalty of perjury, shall contain the information set 

forth in paragraph (c) of this section, and shall be 

filed on FEC Form 9. Political committees that make 

communications that are described in 11 CFR 

100.29(a) must report such communications as expenditures or independent expenditures under 11 

CFR 104.3 and 104.4, and not under this section. 

(c) Contents of statement. Statements of electioneering communications filed under paragraph (b) of 

this section shall disclose the following information: 

(1) The identification of the person who made the 

disbursement, or who executed a contract to make a 

disbursement, and, if the person is not an individual, 

the person’s principal place of business; 

(2) The identification of any person sharing or 

exercising direction or control over the activities of 

the person who made the disbursement or who executed a contract to make a disbursement; 
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(3) The identification of the custodian of the 

books and accounts from which the disbursements 

were made; 

(4) The amount of each disbursement, or amount 

obligated, of more than $200 during the period covered by the statement, the date the disbursement 

was made, or the contract was executed, and the 

identification of the person to whom that disbursement was made; 

(5) All clearly identified candidates referred to in 

the electioneering communication and the elections 

in which they are candidates; 

(6) The disclosure date, as defined in paragraph 

(a) of this section; 

(7)(i) If the disbursements were paid exclusively 

from a segregated bank account established to pay 

for electioneering communications not permissible 

under 11 CFR 114.15, consisting of funds provided 

solely by individuals who are United States citizens, 

United States nationals, or who are lawfully admitted for permanent residence under 8 U.S.C. 

1101(a)(20), the name and address of each donor who 

donated an amount aggregating $1,000 or more to 

the segregated bank account, aggregating since the 

first day of the preceding calendar year; or 

(ii) If the disbursements were paid exclusively 

from a segregated bank account established to pay 

for electioneering communications permissible under 

11 CFR 114.15, the name and address of each donor 

who donated an amount aggregating $1,000 or more 

to the segregated bank account, aggregating since 

the first day of the preceding calendar year. 

(8) If the disbursements were not paid exclusively from a segregated bank account described in 

paragraph (c)(7) of this section and were not made by 
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a corporation or labor organization pursuant to 11 

CFR 114.15, the name and address of each donor 

who donated an amount aggregating $1,000 or more 

to the person making the disbursement, aggregating 

since the first day of the preceding calendar year. 

(9) If the disbursements were made by a corporation or labor organization pursuant to 11 CFR 

114.15, the name and address of each person who 

made a donation aggregating $1,000 or more to the 

corporation or labor organization, aggregating since 

the first day of the preceding calendar year, which 

was made for the purpose of furthering electioneering communications. 

(d) Recordkeeping. All persons who make electioneering communications or who accept donations 

for the purpose of making electioneering communications must maintain records in accordance with 11 

CFR 104.14. 

(e) State waivers. Statements of electioneering 

communications that must be filed with the Commission must also be filed with the Secretary of State of 

the appropriate State if the State has not obtained a 

waiver under 11 CFR 108.1(b). 

11 C.F.R. § 110.11 provides: 

§ 110.11 Communications; advertising; disclaimers (2 U.S.C 441d). 

(a) Scope. The following communications must 

include disclaimers, as specified in this section: 

(1) All public communications, as defined in 11 

CFR 100.26, made by a political committee; electronic mail of more than 500 substantially similar 

communications when sent by a political committee; 
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and all Internet websites of political committees 

available to the general public. 

(2) All public communications, as defined in 11 

CFR 100.26, by any person that expressly advocate 

the election or defeat of a clearly identified candidate. 

(3) All public communications, as defined in 11 

CFR 100.26, by any person that solicit any contribution. 

(4) All electioneering communications by any person. 

(b) General content requirements. A disclaimer 

required by paragraph (a) of this section must contain the following information: 

(1) If the communication, including any solicitation, is paid for and authorized by a candidate, an 

authorized committee of a candidate, or an agent of 

either of the foregoing, the disclaimer must clearly 

state that the communication has been paid for by 

the authorized political committee; 

(2) If the communication, including any solicitation, is authorized by a candidate, an authorized 

committee of a candidate, or an agent of either of the 

foregoing, but is paid for by any other person, the 

disclaimer must clearly state that the communication is paid for by such other person and is authorized by such candidate, authorized committee, or 

agent; or 

(3) If the communication, including any solicitation, is not authorized by a candidate, authorized 

committee of a candidate, or an agent of either of the 

foregoing, the disclaimer must clearly state the full 

name and permanent street address, telephone 

number, or World Wide Web address of the person 
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who paid for the communication, and that the communication is not authorized by any candidate or 

candidate’s committee. 

(c) Disclaimer specifications.

(1) Specifications for all disclaimers. A disclaimer 

required by paragraph (a) of this section must be 

presented in a clear and conspicuous manner, to give 

the reader, observer, or listener adequate notice of 

the identity of the person or political committee that 

paid for and, where required, that authorized the 

communication. A disclaimer is not clear and conspicuous if it is difficult to read or hear, or if the 

placement is easily overlooked. 

(2) Specific requirements for printed communications. In addition to the general requirement of paragraphs (b) and (c)(1) of this section, a disclaimer required by paragraph (a) of this section that appears 

on any printed public communication must comply 

with all of the following: 

(i) The disclaimer must be of sufficient type size 

to be clearly readable by the recipient of the communication. A disclaimer in twelve (12)-point type size 

satisfies the size requirement of this paragraph 

(c)(2)(i) when it is used for signs, posters, flyers, 

newspapers, magazines, or other printed material 

that measure no more than twenty-four (24) inches 

by thirty-six (36) inches. 

(ii) The disclaimer must be contained in a printed 

box set apart from the other contents of the communication. 

(iii) The disclaimer must be printed with a reasonable degree of color contrast between the background and the printed statement. A disclaimer satisfies the color contrast requirement of this paragraph (c)(2)(iii) if it is printed in black text on a 
29a

white background or if the degree of color contrast 

between the background and the text of the disclaimer is no less than the color contrast between the 

background and the largest text used in the communication. 

(iv) The disclaimer need not appear on the front 

or cover page of the communication as long as it appears within the communication, except on communications, such as billboards, that contain only a 

front face. 

(v) A communication that would require a disclaimer if distributed separately, that is included in 

a package of materials, must contain the required 

disclaimer. 

(3) Specific requirements for radio and television 

communications authorized by candidates. In addition to the general requirements of paragraphs (b) 

and (c)(1) of this section, a communication that is authorized or paid for by a candidate or the authorized 

committee of a candidate (see paragraph (b)(1) or 

(b)(2) of this section) that is transmitted through radio or television, or through any broadcast, cable, or 

satellite transmission, must comply with the following: 

(i) A communication transmitted through radio 

must include an audio statement by the candidate 

that identifies the candidate and states that he or 

she has approved the communication; or 

(ii) A communication transmitted through television or through any broadcast, cable, or satellite 

transmission, must include a statement that identifies the candidate and states that he or she has approved the communication. The candidate shall convey the statement either: 
30a

(A) Through an unobscured, full-screen view of 

himself or herself making the statement, or 

(B) Through a voice-over by himself or herself, 

accompanied by a clearly identifiable photographic or 

similar image of the candidate. A photographic or 

similar image of the candidate shall be considered 

clearly identified if it is at least eighty (80) percent of 

the vertical screen height. 

(iii) A communication transmitted through television or through any broadcast, cable, or satellite 

transmission, must also include a similar statement 

that must appear in clearly readable writing at the 

end of the television communication. To be clearly 

readable, this statement must meet all of the following three requirements: 

(A) The statement must appear in letters equal 

to or greater than four (4) percent of the vertical picture height; 

(B) The statement must be visible for a period of 

at least four (4) seconds; and 

(C) The statement must appear with a reasonable degree of color contrast between the background 

and the text of the statement. A statement satisfies 

the color contrast requirement of this paragraph 

(c)(3)(iii)(C) if it is printed in black text on a white 

background or if the degree of color contrast between 

the background and the text of the statement is no 

less than the color contrast between the background 

and the largest type size used in the communication. 

(iv) The following are examples of acceptable 

statements that satisfy the spoken statement requirements of paragraph (c)(3) of this section with 

respect to a radio, television, or other broadcast, cable, or satellite communication, but they are not the 

only allowable statements: 
31a

(A) “I am [insert name of candidate], a candidate 

for [insert Federal office sought], and I approved this 

advertisement.” 

(B) “My name is [insert name of candidate]. I am 

running for [insert Federal office sought], and I approved this message.” 

(4) Specific requirements for radio and television 

communications paid for by other persons and not 

authorized by a candidate. In addition to the general 

requirements of paragraphs (b) and (c)(1) of this section, a communication not authorized by a candidate 

or a candidate’s authorized committee that is transmitted through radio or television or through any 

broadcast, cable, or satellite transmission, must 

comply with the following: 

(i) A communication transmitted through radio 

or television or through any broadcast, cable, or satellite transmission, must include the following audio 

statement, “XXX is responsible for the content of this 

advertising,” spoken clearly, with the blank to be 

filled in with the name of the political committee or 

other person paying for the communication, and the 

name of the connected organization, if any, of the 

payor unless the name of the connected organization 

is already provided in the “XXX is responsible” 

statement; and 

(ii) A communication transmitted through television, or through any broadcast, cable, or satellite 

transmission, must include the audio statement required by paragraph (c)(4)(i) of this section. That 

statement must be conveyed by an unobscured fullscreen view of a representative of the political committee or other person making the statement, or by a 

representative of such political committee or other 

person in voice-over. 
32a

(iii) A communication transmitted through television or through any broadcast, cable, or satellite 

transmission, must also include a similar statement 

that must appear in clearly readable writing at the 

end of the communication. To be clearly readable, the 

statement must meet all of the following three requirements: 

(A) The statement must appear in letters equal 

to or greater than four (4) percent of the vertical picture height; 

(B) The statement must be visible for a period of 

at least four (4) seconds; and 

(C) The statement must appear with a reasonable degree of color contrast between the background 

and the disclaimer statement. A disclaimer satisfies 

the color contrast requirement of this paragraph 

(c)(4)(iii)(C) if it is printed in black text on a white 

background or if the degree of color contrast between 

the background and the text of the disclaimer is no 

less than the color contrast between the background 

and the largest type size used in the communication. 

(d) Coordinated party expenditures and independent expenditures by political party committees. 

(1)(i) For a communication paid for by a political 

party committee pursuant to 2 U.S.C. 441a(d), the 

disclaimer required by paragraph (a) of this section 

must identify the political party committee that 

makes the expenditure as the person who paid for 

the communication, regardless of whether the political party committee was acting in its own capacity or 

as the designated agent of another political party 

committee. 
33a

(ii) A communication made by a political party 

committee pursuant to 2 U.S.C. 441a(d) and distributed prior to the date the party’s candidate is nominated shall satisfy the requirements of this section if 

it clearly states who paid for the communication. 

(2) For purposes of this section, a communication 

paid for by a political party committee, other than a 

communication covered by paragraph (d)(1)(ii) of this 

section, that is being treated as a coordinated expenditure under 2 U.S.C. 441a(d) and that was made 

with the approval of a candidate, a candidate’s authorized committee, or the agent of either shall identify the political party that paid for the communication and shall state that the communication is authorized by the candidate or candidate’s authorized 

committee. 

(3) For a communication paid for by a political 

party committee that constitutes an independent expenditure under 11 CFR 100.16, the disclaimer required by this section must identify the political 

party committee that paid for the communication, 

and must state that the communication is not authorized by any candidate or candidate’s authorized 

committee. 

(e) Exempt activities. A public communication authorized by a candidate, authorized committee, or 

political party committee, that qualifies as an exempt activity under 11 CFR 100.140, 100.147, 

100.148, or 100.149, must comply with the disclaimer 

requirements of paragraphs (a), (b), (c)(1), and (c)(2) 

of this section, unless excepted under paragraph 

(f)(1) of this section, but the disclaimer does not need 

to state whether the communication is authorized by 

a candidate, or any authorized committee or agent of 

any candidate. 
34a

(f) Exceptions.

(1) The requirements of paragraphs (a) through 

(e) of this section do not apply to the following: 

(i) Bumper stickers, pins, buttons, pens, and 

similar small items upon which the disclaimer cannot be conveniently printed; 

(ii) Skywriting, water towers, wearing apparel, or 

other means of displaying an advertisement of such a 

nature that the inclusion of a disclaimer would be 

impracticable; or 

(iii) Checks, receipts, and similar items of minimal value that are used for purely administrative 

purposes and do not contain a political message. 

(2) For purposes of this section, whenever a separate segregated fund or its connected organization 

solicits contributions to the fund from those persons 

it may solicit under the applicable provisions of 11 

CFR part 114, or makes a communication to those 

persons, such communication shall not be considered 

a type of public communication and need not contain 

the disclaimer required by paragraphs (a) through (c) 

of this section. 

(g) Comparable rate for campaign purposes. 

(1) No person who sells space in a newspaper or 

magazine to a candidate, an authorized committee of 

a candidate, or an agent of the candidate, for use in 

connection with the candidate’s campaign for nomination or for election, shall charge an amount for the 

space which exceeds the comparable rate for the 

space for non-campaign purposes. 
35a

(2) For purposes of this section, comparable rate 

means the rate charged to a national or general rate 

advertiser, and shall include discount privileges usually and normally available to a national or general 

rate advertiser. 

11 C.F.R. § 114.15 provides: 

§ 114.15 Permissible use of corporate and 

labor organization funds for certain electioneering communications. 

(a) Permissible electioneering communications. 

Corporations and labor organizations may make an 

electioneering communication, as defined in 11 CFR 

100.29, to those outside the restricted class unless 

the communication is susceptible of no reasonable 

interpretation other than as an appeal to vote for or 

against a clearly identified Federal candidate. 

(b) Safe harbor. An electioneering communication is permissible under paragraph (a) of this section if it: 

(1) Does not mention any election, candidacy, political party, opposing candidate, or voting by the 

general public; 

(2) Does not take a position on any candidate’s or 

officeholder’s character, qualifications, or fitness for 

office; and 

(3) Either: 

(i) Focuses on a legislative, executive or judicial 

matter or issue; and 

(A) Urges a candidate to take a particular position or action with respect to the matter or issue, or 
36a

(B) Urges the public to adopt a particular position and to contact the candidate with respect to the 

matter or issue; or 

(ii) Proposes a commercial transaction, such as 

purchase of a book, video, or other product or service, 

or such as attendance (for a fee) at a film exhibition 

or other event. 

(c) Rules of interpretation. If an electioneering 

communication does not qualify for the safe harbor 

in paragraph (b) of this section, the Commission will 

consider whether the communication includes any 

indicia of express advocacy and whether the communication has an interpretation other than as an appeal to vote for or against a clearly identified Federal 

candidate in order to determine whether, on balance, 

the communication is susceptible of no reasonable 

interpretation other than as an appeal to vote for or 

against a clearly identified Federal candidate. 

(1) A communication includes indicia of express 

advocacy if it: 

(i) Mentions any election, candidacy, political 

party, opposing candidate, or voting by the general 

public; or 

(ii) Takes a position on any candidate’s or officeholder’s character, qualifications, or fitness for office. 

(2) Content that would support a determination 

that a communication has an interpretation other 

than as an appeal to vote for or against a clearly 

identified Federal candidate includes content that: 

(i) Focuses on a public policy issue and either 

urges a candidate to take a position on the issue or 

urges the public to contact the candidate about the 

issue; or 
37a

(ii) Proposes a commercial transaction, such as 

purchase of a book, video or other product or service, 

or such as attendance (for a fee) at a film exhibition 

or other event; or 

(iii) Includes a call to action or other appeal that 

interpreted in conjunction with the rest of the communication urges an action other than voting for or 

against or contributing to a clearly identified Federal 

candidate or political party. 

(3) In interpreting a communication under paragraph (a) of this section, any doubt will be resolved in 

favor of permitting the communication. 

(d) Information permissibly considered. In evaluating an electioneering communication under this 

section, the Commission may consider only the communication itself and basic background information 

that may be necessary to put the communication in 

context and which can be established with minimal, 

if any, discovery. Such information may include, for 

example, whether a named individual is a candidate 

for office or whether a communication describes a 

public policy issue. 

(e) Examples of communications. A list of examples derived from prior Commission or judicial actions of communications that have been determined 

to be permissible and of communications that have 

been determined not to be permissible under paragraph (a) of this section is available on the Commission’s Web site, http://www.fec.gov. 

(f) Reporting requirement. Corporations and labor 

organizations that make electioneering communications under paragraph (a) of this section aggregating 

in excess of $10,000 in a calendar year shall file 

statements as required by 11 CFR 104.20.