No. 08-205

In The

Supreme Court of the

United States

____________

CITIZENS UNITED, Appellant,

v.

FEDERAL ELECTION COMMISSION, Appellee.

____________

On Appeal from the United States District Court

for the District of Columbia

 ____________

Brief Opposing

Motion to Dismiss or Affirm

____________

James Bopp, Jr.

 Counsel of Record

Richard E. Coleson

Jeffrey P. Gallant

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434

812/235-3685 (facsimile)

Counsel for Citizens United
Corporate Disclosure Statement

Citizens United has no parent corporation, and no

publicly-held company owns ten percent or more of its

stock. Rule 29.6.

(i)
Table of Contents

Corporate Disclosure Statement. ............................ (i)

Table of Authorities. .............................................. (iii)

Argument.................................................................... 1

I. McConnell Did Not Resolve This Case.. ......... 1

II. Only “Campaign” Speech Is Subject to

Disclosure......................................................... 2

III. An “Appeal to Vote” Requires a Clear

Plea for Action.. ............................................... 9

IV. Movies Are Not “Ads”and Are Not Subject to Regulation........................................... 12

Conclusion. ............................................................... 13

(ii)
Table of Authorities

Cases

Buckley v. Valeo, 424 U.S. 1 (1976). .......................... 2

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987). ..... 11

FEC v. Massachusetts Citizens for Life, 

479 U.S. 238 (1986)........................................... 6, 7

FEC v. Wisconsin Right to Life, 

127 S. Ct. 2652 (2007)...................... 1, 2, 4, 5, 9-11

First National Bank of Boston v. Bellotti, 

435 U.S. 765 (1978)............................................... 8

McConnell v. FEC, 

251 F. Supp. 2d 176 (D.D.C. 2003)..................... 12

McConnell v. FEC, 540 U.S. 93 (2003). ........... 1, 4, 12

Nat’l Right to Work Legal and Educ. 

Found. v. Herbert, No. 2:07-CV-809, 

2008 WL 4181336 (D. Utah Sep. 8, 2008)............ 3

North Carolina Right to Life v. Leake, 

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

Turner Broad. Sys., Inc. v. FCC, 

512 U.S. 622 (1994)............................................. 12

United States v. Harriss, 347 U.S. 612 (1954). ..... 8, 9

(iii)
Argument

This case involves three substantial questions not

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

that are answered by the analysis in Buckley v. Valeo,

424 U.S. 1 (1976), and FEC v. Wisconsin Right to Life,

127 S. Ct. 2652 (2007) (“WRTL II”):

(1) Given the First Amendment’s liberty and privacy guarantees and the government’s authority to

regulate elections, where is the line at which the

government may compel disclosure as to independent

communications touching on elections?

(2) In determining whether a communication may

only be “interpret[ed] . . . as an appeal to vote for or

against a specific candidate,” WRTL II, 127 S. Ct. at

2667, can a communication constitute this “appeal to

vote” absent a clear plea for action that can only be

understood as a call to vote for or against a candidate?

(3) May a feature-length movie be regulated as a

campaign “ad,” or is it different in kind and protected

from regulation by the First Amendment?

I. McConnell Did Not Resolve This Case.

While McConnell resolved none of these questions,

the FEC argues that McConnell precludes this asapplied challenge. The Jurisdictional Statement notes

this Court’s unanimous rejection of a near-identical

argument when the WRTL II case first came before

this Court. JS 15.

The FEC argues that as-applied challenges are

precluded except for one that Citizens does not assert,
2

i.e., that it is the sort of socially-disfavored group

needing a blanket exemption from otherwise constitutionally permissible disclosure requirements due to

the probability of donor harm. Although Citizens does

not seek a blanket exemption based on the probability

of harm to donors, this Court has recognized that such

concerns, along with others, must always be considered when disclosure is compelled, whether or not

they warrant blanket exemption. JS 20-21.

Citizens complies with constitutional disclosure requirements, but asserts that the Disclosure Requirements at issue herein are unconstitutional as applied

to “electioneering communications” lacking an “electioneering nature,” WRTL II, 127 S. Ct. at 2667, because they “may reasonably be interpreted as something other than as an appeal to vote for or against a

specific candidate.” Id. at 2670.

II. Only “Campaign” Speech Is

Subject to Disclosure.

Where is the constitutional line dividing expression subject to disclosure from expression retaining

full First Amendment privacy protection? There must

be a line, and it must be bright and speech-protective,

for we deal with “political speech,” id. at 2670, which

is at the core of First Amendment protection.

Only one disclosure line has been drawn by this

Court for independent communications by persons

who are not political committees or candidates. It is

the line where political speech becomes “unambiguously related to the campaign of a particular federal
3

candidate.” Buckley, 424 U.S. at 80 (emphasis added).

1

This disclosure line was not drawn merely to resolve the vagueness of “the phrase, ‘for the purpose of

. . . influencing’ an election or nomination,” id. at 79,

but also to “insure that the reach of [the disclosure

requirement] is not impermissibly broad,” id. at 80

(emphasis added), namely, that “the relation of the

information sought to the purposes of the Act may

[not] be too remote.” Id. The overbreadth concern was

about reaching beyond the constitutionally permissible disclosure line to regulate communications that

were not “unambiguously related to the campaign of a

particular federal candidate.” Id.

Theunambiguously-campaign-related requirement

was implemented by a test, as this Court has always

implemented it, which was the express-advocacy test.

Id. No disclosure could be required for communicaThe Fourth Circuit recognizes this line for all cam1

paign-finance regulation:

“Buckley . . . recognized the need to cabin legislative authority over elections . . . . It . . . demarcat[ed] a boundary between regulable electionrelated activity and constitutionally protected political speech: after Buckley, campaign finance laws

may constitutionally regulate only those actions

that are “unambiguously related to the campaign of

a particular . . . candidate.”

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

(4th Cir. 2008) (quoting Buckley, 424 U.S. at 80). See also

Nat’l Right to Work Legal and Educ. Found. v. Herbert,

No. 2:07-CV-809, 2008 WL 4181336, at *5 (D. Utah Sep. 8,

2008) (same).
4

tions that did not “expressly advocate the election or

defeat of a clearly identified candidate.” Id. (footnote

omitted). So Buckley drew the disclosure line for nonpolitical committee, non-candidate, independent communications at express-advocacy, but that in turn was

based on the unambiguously-campaign-related line.

McConnell facially recognized some electioneering

communications as “the functional equivalent of express advocacy,” 540 U.S. at 206, and facially upheld

the Disclosure Requirements, id. at 196. But it

reserved the question of how to distinguish those ads

that were the functional equivalent of express advocacy from those that were not. Id. at 206 n.88

(“interests that justify the regulation of campaign

speech might not apply to the regulation of genuine

issue ads”).

WRTL II answered that reserved question, establishing the appeal-to-vote test to determine which

electioneering communications were the functional

equivalent of express-advocacy communications. The

test stated 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. If “ads may reasonably be interpreted as

something other than as an appeal to vote for or

against a specific candidate, . . . they are not the

functional equivalent of express advocacy.” Id. at

2670. “[I]n a debatable case, the tie is resolved in

favor of protecting speech.” Id. at 2669 n.7.

This appeal-to-vote test—by its emphasis on

bright-line certitude (“unambiguously”) and focus on

“vote” and “candidate” (“campaign-related”)—is a
5

clear application of the unambiguously-campaignrelated requirement. The FEC agrees. See FEC Mot.

21 (“The fact that appellant’s advertisements are not

unambiguously election-related—i.e. the fact that

they may reasonably be construed as something other

than an appeal to vote against Senator Clinton. . . .”).

So this Court should now decide whether ads that

are not unambiguously campaign related may nonetheless be subject to disclosure requirements under

BCRA. Communications that are not the functional

equivalent of express advocacy under the appeal-tovote test should no more be subject to compelled

disclosure than the non-express-advocacy communications that Buckley protected from disclosure. Just as

the express-advocacy test marked the disclosure line

for independent expenditures, so the appeal-to-vote

test marks the disclosure line for electioneering

communications because both tests implement the

unambiguously-campaign-related requirement beyond

which disclosure may not be required.

But the FEC proclaims that it may go beyond this

line to require disclosure of communications that have

“nothing to do with any candidate election.” FEC Mot.

20. So the Federal Election Commission asserts that,

pursuant to the Federal Election Campaign Act and

the Bipartisan Campaign Reform Act, it may compel

disclosure of communications that are not unambiguously campaign related. In short, when it comes to 2

The FEC argues that though Citizens’ Ads are not un- 2

ambiguously campaign related, they “may influence electoral results.” FEC Mot. 21. The appeal-to-vote test rejects

intent-and-effect inquiries. WRTL II, 127 S. Ct. at 2666.
6

disclosure, the FEC claims there is no constitutional

line.

The FEC points to cases that “postdate Buckley” to

argue that Congressional authority to compel disclosure of communications is broader than Congressional

authority to prohibit certain communications. FEC

Mot. 17-19. But the FEC evades the relevant issue,

which is not whether disclosure is permitted as to

some communications that may not be prohibited. The

issue is whether campaign finance regulation—

whether prohibition or disclosure—is restricted to expenditures for communications that are “unambiguously related to the campaign of a particular candidate.” Buckley, 424 U.S. at 80.

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

238 (1986) (“MCFL”) embraced the unambiguouslycampaign-related requirement, specifically citing the

Buckley passage establishing it. Id. at 248-49. All of

the disclosure of non-prohibited activity that MCFL

referenced fell within the unambiguously-campaignrelated requirement. MCFL said that even though it

eliminated the independent expenditure prohibition

for MCFL-corporations,

an independent expenditure of as little as $250

. . . will trigger the disclosure provisions . . . .

MCFL will be required to identify all contributors who annually provide in the aggregate

$200 in funds intended to influence elections,

will have to specify all recipients of independent

spending amounting to more than $200, and

will be bound to identify all persons making

contributions over $200 who request that the
7

money be used for independent expenditures.

These reporting obligations provide precisely

the information necessary to monitor MCFL’s

independent spending activity and its receipt of

contributions. 

479 U.S. at 262 (emphasis added).

What did MCFL say must be disclosed? First, “independent expenditure[s],” including the “recipients of

independent spending” must be disclosed. Id. “Independent expenditures” have been express-advocacy

communications since Buckley imposed the expressadvocacy construction on them, 424 U.S. at 44 & n.52,

80-81, based on the unambiguously-campaign-related

requirement—which MCFL confirmed. 479 U.S. at

248-49. Second, “contributors . . . [of] funds intended

to influence elections” must be disclosed. Id. at 262.

Such contributions meet the unambiguously-campaign-related requirement under Buckley’s construction, in the disclosure context, of “‘contributions’ . . .

‘for the purpose of . . . influencing’ the nomination or

election of candidates for federal office,” 424 U.S. at

77, which it construed to be either a donation to a candidate, political party, or campaign committee or “earmarked for political purposes.” Id. at 78.

As to the applicability of an informational interest,

MCFL declared that disclosure of the listed unambiguously-campaign-related information was enough:

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

spending activity and its receipt of contributions.” 479

U.S. at 262. So MCFL embraced Buckley’s analysis

that campaign-finance disclosure may only extend to

contributions, expenditures, and entities that are “un-
8

ambiguously related to the campaign of a particular

candidate.” Buckley, 424 U.S. at 80.

First National Bank of Boston v. Bellotti, 435 U.S.

765 (1978), although in the ballot measure context, is

not contrary. Bellotti Court noted that “[i]dentification

of the source of advertising may be required as a

means of disclosure, so that the people will be able to

evaluate the arguments to which they are being subjected.” Id. at 792 n.32. The law at issue barred corporations “from making contributions or expenditures

‘for the purpose of . . . influencing or affecting the vote

on any question submitted to the voters, other than

one materially affecting any of the property, business

or assets of the corporation.’” Id. at 768 (citation omitted). Since Buckley had already found “for the purpose

of influencing” unconstitutionally vague and given it

the express-advocacy construction to implement the

unambiguously-campaign-related requirement, 424

U.S. at 77, 81, it is clear in Bellotti that the “disclosure” of the “source” of any “expenditure” for a communication was only for one that expressly advocated

passage or defeat of a measure, i.e., was unambiguously campaign related.3

The FEC’s citation to United States v. Harriss, 347 3

U.S. 612 (1954), is inapposite. Whatever Congressional

power and interests justify lobbying disclosure are not at

issue here. At issue here is Congress’ regulation of campaign financing under the Federal Election Campaign Act

and the Bipartisan Campaign Reform Act (“BCRA”), which

stem from “[t]he constitutional power of Congress to regulate federal elections,” Buckley, 424 U.S. at 13 (emphasis

added). Furthermore, Harriss construed a lobbyist disclosure act to avoid constitutional difficulties so that it ap-
9

The FEC argues at length over the meaning of

“exacting scrutiny.” FEC Mot. 13-17. Citizens asserts

that strict scrutiny is applicable because this case

deals with core political speech and BCRA’s disclosure

requirements place a substantial burden on that

speech. JS 20-21. However, regardless of the level of

scrutiny, disclosure may only be compelled for communications that are “unambiguously campaign related,” which Citizens’ Ads are not.

Whether the unambiguously-campaign-related

requirement limits government ability to compel disclosure in the campaign-finance context is a substantial question that this Court should decide.

III. An “Appeal to Vote”

Requires a Clear Plea for Action.

WRTL II requires that only electioneering communications “susceptible of no reasonable interpretation

other than as an appeal to vote for or against a specific candidate” are “the functional equivalent of express advocacy,” 127 S. Ct. at 2667, and thereby subject to BCRA’s prohibition on corporate funding. So

first, a communication must be interpreted “as an appeal,” and second, that required appeal must be “to

plies only to persons paid to do lobbying that involves direct contact with Congress, and the person, or a contribution to that person, has the “primary purpose” of such lobbying. Id. at 619, 622. The “principal purpose” test of

Harriss in the lobbying context serves to limit regulation

to that which is unambiguously lobbying related, much as

the “major purpose” test in Buckley limits regulation to

that which is, “by definition, campaign related,” 424 U.S.

at 79, i.e., “unambiguously campaign related.” Id. at 81.
10

vote for or against a specific candidate.” And all

doubts and ties must be resolved in favor of free

speech, with no forbidden considerations of intent and

effect. Id. at 2666-67. 

Applying this test, Citizens’ Movie cannot be

deemed the functional equivalent of express advocacy.

The Movie is a full-length documentary film about a

prominent American politician. It contains no clear

call for action to vote against Senator Clinton and can

reasonably be interpreted as a documentary film on

the public life of a United States Senator. 

But the FEC and the District Court came to a different conclusion by applying a different test, confusing WRTL II’s application of the “appeal to vote” test

with the test itself. The result is a new test with additional “criteria,” which criteria may be offset by a “focus on a genuine legislative issue.” FEC Mot. 22-23.

The FEC is mistaken. As set out in the Jurisdictional

Statement, WRTL II’s appeal-to-vote test is clear and

concise. JS 24. This Court’s application of that test to

the specific ads at issue in WRTL II is not relevant

beyond the context of grassroots lobbying, which Citizens’ Movie is not.

The FEC further states that “specific words constituting an appeal to vote” are not required, and instead

leans heavily on the “as” in WRTL II’s appeal-to-vote

test. FEC Mot. 24-25. But that as has no meaning absent the words that follow it. The communication

must be subject to only one interpretation: “as an appeal to vote for or against a specific candidate,” WRTL

II, 127 S. Ct. at 2667. The words are carefully chosen.

It is helpful to note what is not said. The communication is not to be interpreted as “for or against a spe-
11

cific candidate,” or as “promoting,” “attacking,” “supporting,” or “opposing” (“PASO”) the candidate. Similarly, the question is not whether the communication

may only be interpreted as “focusing” on a candidate

or as “criticizing” a candidate. And the question is not

whether the communication may be interpreted as

“the functional equivalent of express advocacy” because WRTL II was narrowing the broad McConnell

language with careful specificity. Rather, the communication must be interpreted “as an appeal to vote for

or against a specific candidate.” It is impossible to

interpret a communication as an appeal unless there

is some verb calling for action. 

Citizens does not seek to “reintroduce a test akin”

to a “magic words” requirement. FEC Mot. 24. On the

contrary, Citizens has demonstrated, with the illustration of FEC v. Furgatch, 807 F.2d 857 (9th Cir.

1987), how an ad might avoid “magic words” but still

be subject only to an interpretation “as an appeal to

vote for or against a specific candidate” based on a

clear plea for action. JS 26.

Finally, that the Movie does not focus on a single

legislative “issue” is irrelevant. “[P]olitical speech,” or

“issue advocacy,” WRTL II, 127 S. Ct. at 2667, is not

defined as being about some particular legislative issue, as the FEC tries to require. FEC Mot. 24. On the

contrary, issue advocacy, i.e. political speech, is defined by the absence of campaign speech. “Issue advocacy conveys information and educates.” WRTL II,

127 S. Ct. at 2667. “An issue ad’s impact on an election, if it exists at all, will come only after the voters

hear the information and choose—uninvited by the ad

—to factor it into their voting decisions.” Id. 
12

WRTL II’s definition of “issue advocacy” plainly

encompasses Citizens’ Movie. But Citizens was prohibited from broadcasting its Movie simply because it

raised issues relevant to an impending election.

Whether the appeal-to-vote test requires a clear

plea for action to vote for or against a candidate is a

substantial question that this Court should decide.

IV. Movies Are Not “Ads”and

Are Not Subject to Regulation.

Feature-length documentary movies are different

in kind from “ads.” The FEC has not shown that movies pose the same dangers as the ads targeted by Congress in passing BCRA, which ads were subsequently

relied upon by this Court in McConnell. The FEC argues that “the McConnell record included evidence of

broadcast advocacy longer than the traditional 30- or

60-second spot, such as paid, 30-minute ‘infomercials.’” FEC Mot. 26. In fact, however, the district

court pointed out that such infomercials had not been

included in the studies upon which the court relied.

McConnell v. FEC, 251 F. Supp. 2d 176, 305-06, 316-

17 (D.D.C. 2003) (op. of Henderson, J.). Moreover,

even a thirty-minute infomercial is different in kind

from a feature-length film that has a compendium

book, is shown in theaters, and is sold on DVD. 

Unlike “ads,” movies are not imposed unawares on

a captive audience that has chosen to watch a different program. Rather, movies must be selected by a

willing viewer. And unlike the ads in McConnell, the

FEC has not shown that movies were an “electioneering” problem giving rise to a Congressional remedy,

540 U.S. at 127 n. 20, a showing the FEC is required
13

to make. Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 664 (1994).

Feature-length movies were nowhere at issue in

McConnell. Whether they are subject to regulation as

“electioneering communications” remains a substantial question that this Court should decide.

Conclusion

The Court should note probable jurisdiction.

Respectfully submitted,

James Bopp, Jr.,

Counsel of Record

Richard E. Coleson

Jeffrey P. Gallant

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434

812/235-3685 (facsimile)