Response to Motion to Dismiss 1

United States District Court

District of Columbia

Citizens United,

Plaintiff,

v.

Federal Election Commission,

Defendant.

Case No. 07-2240 (ARR, RCL, RWR)

THREE-JUDGE COURT

Plaintiff’s Memorandum of Law Responding to

FEC’s Motion to Dismiss Counts 3 & 4

Citizens United (“CU”) responds to Defendant Federal Election Commission’s Motion to

Dismiss Counts 3 and 4 of the Amended Complaint (#43) and the FEC’s accompanying Memorandum (“Mem.”). As set out below, (I) CU agrees to dismissal of Count 4 without prejudice

because it presently appears to be moot, but (II) Count 3 should not be dismissed because:

• Hillary: The Movie contains no words constituting an “appeal to vote for or against a

specific candidate,” as required by FEC v. Wisconsin Right to Life, 127 S. Ct. 2652, 2667

(2007) (“WRTL II”) (emphasis added);

• Hillary “may reasonably be interpreted as something other than as an appeal to vote for or

against a specific candidate,” WRTL II, 127 S. Ct. at 2670 (emphasis added), i.e., it is a

full-length documentary movie (shown in theaters and sold on DVD) that is the functional

equivalent of a book, not of the “ads” that were the target of the Bipartisan Campaign

Reform Act of 2002 (“BCRA”) and constituted the evidence considered in McConnell v.

FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) (three-judge court) and McConnell v. FEC, 540

U.S. 93 (2003);

• the electioneering communication prohibition, 2 U.S.C. § 441b, is unconstitutional as

applied to a movie that is the functional equivalent of a book, not an “ad”; and

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 1 of 18
Response to Motion to Dismiss 2

• the FEC is presently doing discovery as to whether CU is a media entity, leaving an open

issue as to whether the FEC will assert that CU now has a status that could permit all

broadcasts (as opposed to the FEC’s contrary finding earlier in an advisory opinion).

I. CU Agrees to Dismissal of Count 4 Without Prejudice.

CU did not challenge the electioneering communication prohibition, codified at 2 U.S.C.

§ 441b, as applied to the “Questions” ad, see Am. Compl. Ex. 1 (ad transcript), when it filed its

initial complaint. CU made no such claim because it seemed clear to CU that “Questions” could

not be prohibited under the rule set out by Chief Justice Roberts in the controlling opinion in

WRTL II, 127 S. Ct. at 2667, and the FEC’s new rule implementing WRTL II, see 72 Fed. Reg.

72899, as to the proper scope of “electioneering communication” in BCRA.

CU added Count 4 to the Amended Verified Complaint for Declaratory and Injunctive

Relief (#22), when FEC counsel declared that they were unable to determine whether “Questions” was prohibited under WRTL II and the FEC’s own rule, as set out in the Amended Verified

Complaint (“AVC”):

32. On the evening of December 20, 2007, the FEC filed its

memorandum opposing preliminary injunction (Doc. #18), in which

it stated that “the Commission has not had a sufficient opportunity to

consider whether plaintiff’s third ad (titled ‘Questions’) qualifies as

a WRTL ad under the Commission’s new regulations. Although

plaintiff’s first two proposed ads appear to come within the WRTL

exemption — thus placing Citizens’s United’s constitutional claim

squarely before the Court as applied to those two ads — ‘Questions’

poses a closer question that the Commission has not had an adequate

opportunity to address.” Doc. #18 at 8-9. If the FEC can’t tell by

looking at an ad whether it meets the FEC’s own exception to the

Prohibition, then Citizens United can’t know whether it may even

broadcast the ad without being subject to FEC investigation, enforcement, and penalties. Therefore, CU will not broadcast this ad unless

it receives the judicial relief sought herein and will be irreparably

harmed by violation of its constitutional rights to free speech and

association.

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 2 of 18
Response to Motion to Dismiss 3

So Count 4 challenged the electioneering communications prohibition as applied to “Questions”:

44. As applied to the broadcasting of the ad entitled “Questions,” the Prohibition is unconstitutional because the ad is not

“unambiguously related to the campaign of a particular federal

candidate,” Buckley, 424 U.S. at 80, and because the ad “may

reasonably be interpreted as something other than as an appeal to vote

for or against a specific candidate.” WRTL II, 127 S. Ct. at 2670.

Failing this threshold requirement, the Prohibition does not come

within congressional authority to regulate elections and is overbroad

for sweeping in First Amendment activity without authority.

45. As applied to the ad entitled “Questions,” the Prohibition

is unconstitutional under the First Amendment guarantees of free

expression and association.

Nineteen days later, on January 8, 2008, FEC counsel finally conceded that “on balance,”

“Questions” was protected by 11 C.F.R. § 114.15(c), the rule supposedly implementing WRTL II

as to the proper scope of a regulated “electioneering communication.” Doc. 33 at 17. However,

FEC counsel continued to insist that “the safe harbor provision” of the FEC rule “may not apply

to ‘Questions.’” Id. As may be seen, it is only with great difficulty that FEC counsel was able to

bring itself to decide that “Question” could not be prohibited as an electioneering communication. It should be noted that the FEC Commissioners are presently unable to give an official

advisory opinion as to whether “Questions” is an electioneering communication under its rule or

WRTL II because the FEC continues to lack a quorum of Commissioners for such official acts.

However, on the assumption that FEC counsel are able to provide an official FEC

position that “Questions” is not an electioneering communication for purposes of the prohibition,

and so long as the FEC does not alter this position, CU agrees that Count 4 is now moot.

Consequently, CU agrees that Count 4 should be dismissed without prejudice (only to be revived

if the FEC should alter its position that “Questions” is not an electioneering communication for

purposes of the prohibition). Count 4 should not be dismissed with prejudice, given the equivocation of FEC counsel, the present peculiar circumstances of the FEC Commissioners as outlined

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 3 of 18
Response to Motion to Dismiss 4

above, and the fact that it is being dismissed for mootness, which in no way addresses the merits

of the claim, only the lack of jurisdiction.

II. Count 3 Should Not Be Dismissed.

CU did not challenge the electioneering communication prohibition, codified at 2 U.S.C.

§ 441b, as applied to Hillary: The Movie, when it filed its initial complaint because there were no

plans to broadcast the documentary. However, as set out in the Amended Verified Complaint, CU

got an offer to broadcast the documentary:

28. On December 20, 2007, a company that markets nationwide Video on Demand (“VOD”) broadcasting of programs on cable

television made an offer to Citizens United to broadcast Hillary: The

Movie, for a fee to be paid by Citizens United, to cable viewers

nationwide (or to such markets as remain appropriate when the

judicial relief requested herein is provided). Hillary would be

broadcast under a “Political Movies” component of “Elections ’08,

a new channel sponsored by the cable industry. The contract offered

would be for 4 weeks. A true and correct copy of the current (not

finalized) script of Hillary is filed separately under seal. See Exhibit

2 (under seal). Citizens United expects further opportunities to put

Hillary on television in the near future by other means.

29. This broadcasting would bring Hillary within the

electioneering communication definition because the movie (a) will

be broadcast on cable stations so that it (b) will be receivable by more

than 50,000 persons, in states where caucuses, conventions, or

primary elections will be selecting a Democratic party nominee, (c)

will clearly reference Senator Clinton, a presidential candidate, and

(d) will be made within 30 days before the caucuses, conventions, or

primaries in the states identified in ¶ 17 where she will be on the

ballot.

30. Citizens United intends to accept this offer to broadcast its

documentary, but will not do so unless it receives the judicial relief

requested herein because (a) it will have donors who would have to

be disclosed and it does not wish to comply with the Disclosure

Requirements as to the movie for the reasons stated in ¶¶ 23 & 27 and

(b) the communication would be a prohibited “electioneering

communication” under BCRA because it is not exempt from the

“electioneering communication” prohibition under the FEC’s

regulation at 11 C.F.R. § 114.15 (creating an exception to the

electioneering communication prohibition).

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 4 of 18
Response to Motion to Dismiss 5

So CU added Count 3:

41. As applied to the broadcasting of Hillary, the Prohibition

is unconstitutional because the documentary is not “unambiguously

related to the campaign of a particular federal candidate,” Buckley,

424 U.S. at 80, and because the movie “may reasonably be interpreted

as something other than as an appeal to vote for or against a specific

candidate.” WRTL II, 127 S. Ct. at 2670. Failing this threshold

requirement, the Prohibition does not come within congressional

authority to regulate elections and is overbroad for sweeping in First

Amendment activity without authority.

42. As applied to Hillary, the Prohibition is unconstitutional

under the First Amendment guarantees of free expression and

association.

A. Hillary Contains No “Appeal to Vote,” as WRTL II Requires for Prohibition, and

the Prohibition Is Unconstitutional as Applied to Movies.

FEC counsel argue that this Court “noted” that Hillary “is the functional equivalent of

express advocacy,” Mem. 6 (citation omitted), although, of course, that was for preliminary

injunction purposes. The FEC acknowledges, as it must, that WRTL II’s appeal-to-vote test, 127

S. Ct. at 2667 (“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”), governs whether Hillary may be prohibited as an electioneering communication,

Mem. 6, 10, but proceeds to misinterpret and misapply WRTL II’s test.

First, the WRTL II test specifically required that there be an unambiguous “appeal to

vote”: “[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. See also id. at 2670 (“Because WRTL’s ads may

reasonably be interpreted as something other than as an appeal to vote for or against a specific

candidate, we hold they are not the functional equivalent of express advocacy.” (emphasis

added)).

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 5 of 18
Response to Motion to Dismiss 6

Second, WRTL II expressly required that the search for this unambiguous “appeal to vote”

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

on the substance of the communication rather than amorphous considerations of intent and

effect.” Id. at 2666 (emphasis added). This focus on the actual words of the communication is

also required by WRTL II’s rejection of reliance on “contextual factors.” Id. at 2669.

Third, WRTL II repeatedly required that where there is any doubt as to whether the

necessary unambiguous “appeal to vote” is present in the words of the communication then there

is not an “appeal to vote” because all doubts and debatable words are to be resolved in favor of

the speaker. See id. at 2667, 2669 & n.7, 2674.

Fourth, WRTL II demanded both that there be unambiguous words containing an “appeal

to vote” and that all doubts be resolved in favor of unrestricted speech precisely because of the

dissolving-distinction problem that the Court had earlier identified, in Buckley v. Valeo, 424 U.S.

1 (1976), as requiring the express-advocacy test in the independent expenditure context. WRTL II

mentioned this dissolving-distinction twice, emphasizing its vital importance to the Court’s First

Amendment jurisprudence in this area. 127 S. Ct. at 2659, 2669. The dissolving distinction that

required a bright, speech-protective line was the distinction between (1) “discussion of issues and

candidates,” which is present in Hillary, and (2) “advocacy of election or defeat of candidates,”

which is absent from Hillary:

 [T]he distinction between discussion of issues and candidates and

advocacy of election or defeat of candidates may often dissolve in

practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and

governmental actions. Not only do candidates campaign on the basis

of their positions on various public issues, but campaigns themselves

generate issues of public interest. [Buckley, 424 U.S. at 42 (emphasis

added).]

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 6 of 18
Response to Motion to Dismiss 7

The Court elaborated further on the necessity of a bright line—between (1) “discussion,

laudation, [and] general advocacy” (present in Hillary) and (2) and “solicitation” (absent from

Hillary)—to protect issue advocacy:

(W)hether words intended and designed to fall short of invitation

would miss that mark is a question both of intent and of effect. No

speaker, in such circumstances, safely could assume that anything he

might say upon the general subject would not be understood by some

as an invitation. In short, the supposedly clear-cut distinction between

discussion, laudation, general advocacy, and solicitation puts the

speaker in these circumstances wholly at the mercy of the varied

understanding of his hearers and consequently of whatever inference

may be drawn as to his intent and meaning. [¶] Such a distinction

offers no security for free discussion. In these conditions it blankets

with uncertainty whatever may be said. It compels the speaker to

hedge and trim. [Id. at 43 (emphasis added).]

WRTL II expressly held that this dissolving-distinction problem may not be used to quash the

very intermingled discussion of issues and candidates that is at issue herein: “Discussion of

issues cannot be suppressed simply because the issues may also be pertinent in an election.” 127

S. Ct. at 2669. And it elaborated the point that the dissolving-distinction is a reason to protect,

not restrict, free speech: “‘The Government may not suppress lawful speech as the means to

suppress unlawful speech. Protected speech does not become unprotected merely because it

resembles the latter. The Constitution requires the reverse.’” Id. at 2670 (citation omitted).

WRTL II’s test, then, requires examination of the words of the communication itself to see

if they make an unambiguous “appeal to vote for or against a specific candidate.” This inquiry

must be made without resort to external context or any effort to discern intent and effect. The

inquiry must be made subject to the governing principle that the intermingled “discussion of

issues and candidates” is constitutionally protected, as is “discussion, laudation, [and] general

advocacy.” See supra. The WRTL II test does not include any elements of the application of that

test to grassroots lobbying that WRTL II did after establishing the actual test. See 127 S. Ct. at

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 7 of 18
Response to Motion to Dismiss 8

2667. This is not a grassroots lobbying case about a legislative issue, so it is not at all surprising

that there is no such single, central issue throughout the documentary as would be expected with

grassroots lobbying. But, the documentary does contain the type of issue advocacy that intermingles “discussion of issues and candidates,” see supra, which is equally protected by the WRTL II

test.

So the issue that must be decided in considering the FEC’s Rule 12(b)(6) motion is

whether there are actual words in Hillary that contain WRTL II’s required unambiguous “appeal

to vote,” also known as “advocacy of election or defeat of candidates” or “solicitation,” which

may not be confused with protected “discussion of issues and candidates” or “discussion,

laudation, [and] general advocacy.” See supra.

FEC counsel set out a laundry list of quotations from Hillary, Mem. 6-9, that they believe

all add up to the conclusion that Hillary is “susceptible of no reasonable interpretation other than

as an appeal to vote against her.” Mem.10. But they point to no quotation that actually has words

containing an unambiguous “appeal to vote.” This is unsurprising because none contains “an

appeal to vote.” The test is not whether a series of statements that contain no “appeal to vote” is

perceived by FEC counsel to add up to “an appeal to vote”—based apparently on forbidden

considerations—but whether there are words that contain an unambiguous “appeal to vote.”

Under the proper test, a series of statements that contain no “appeal to vote” may not be added up

to achieve a cumulative result that they individually lack. A series of zeroes adds up to nothing,

not something.

Of course, Hillary “may reasonably be interpreted as something other than as an appeal to

vote for or against a specific candidate,” WRTL II, 127 S. Ct. at 2670. A reasonable interpretation

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 8 of 18
Response to Motion to Dismiss 9

is that it is a full-length, documentary movie about Senator Clinton, and such a movie enjoys all

the protection historically afforded to any book about a public figure.

Hillary is the functional equivalent of a book, not of the 30- or 60-second ads that were

the target of Congress in BCRA and at issue in McConnell. The fact that it is in the modern

medium of a documentary film that can be viewed in a theater, brought home on a DVD, or

watched on television does not vitiate the historical protection afforded to books and their

modern equivalents. If the difference in medium matters when it comes to First Amendment

protection for the functional equivalent of a book, then the government could freely engage in

high-tech “book burnings” without restriction.

Examination of the McConnell record indicates that full-length documentary films were

nowhere in the sights of the campaign finance reform lobby or Congress in promoting and

passing BCRA, nor were they in the consideration of the district court or the Supreme Court in

McConnell. McConnell specifically identified the focus of BCRA as being “advertisements,”

“ads,” and “commercials” see McConnell, 540 U.S. at 126-28, and the opinion nowhere

mentioned a book or a movie as the focus of the case. McConnell specifically identified the sort

of communication that it perceived to be the problem that BCRA addressed, i.e., the Bill

Yellowtail “ad,” which was a brief commercial. Id. at 193 n.78.

In the McConnell three-judge district court, the court’s per curiam memorandum opinion

plainly identified “ads” as being the communications at issue in that facial challenge, actually

equating “electioneering communication” and “so-called ‘issue ads’”: “Section 201 of BCRA

sets forth a primary, and a ‘backup’ definition, of an ‘electioneering communication’ (i.e., socalled ‘issue ads’). McConnell, 251 F. Supp. 2d at 184 (emphasis added). In its finding of fact

regarding BCRA’s disclosure provisions (including findings concerning the FEC’s expert

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 9 of 18
Response to Motion to Dismiss 10

testimony), the court consistently spoke of “ads” and “advertisements,” never movies. See id. at

229-33. Similarly, the three separate opinions are replete with references to “ads” and “advertisements,” but not discussions of movies. For example, Judge Leon specifically identified sham

issue ads as the BCRA target: “In an attempt to prevent actual and apparent corruption arising

from the funding of such sham issue advertisements, Congress enacted a sweeping set of reforms

. . . .” Id. at 757 (opinion of Leon, J.) (emphasis added). And he cited the studies on which the

government relied to defend the electioneering communications prohibition, which studies only

examined advertisements (both “genuine” and “sham”). Id. at 796-97. In fact, Judge Henderson’s

findings of fact specifically pointed to a 30-minute NRA “infomercial” and two 30-minute “news

magazine[s]” that would have been captured by the “electioneering communication” definition,

but which the studies on which the government relied failed to include, and which she said would

have altered the percentage of genuine issue ads captured (for she considered them genuine issue

advocacy) as compared to sham issue ads captured (for substantial overbreadth analysis). Id. at

305-06, 316-17 (opinion of Henderson, J.). Judge Kollar-Kotelly’s opinion likewise confirmed

that the studies offered to justify BCRA’s electioneering communications restrictions were based

on “advertisements.” See, e.g., id. at 719-24 (opinion of Kollar-Kotelly, J.).

A full-length documentary movie shown in theaters, sold on DVD, and with a compendium book on which CU has received an advance royalty on sales from Thomas Nelson

Publishers, AVC ¶ 14 is simply not the same as an “ad,” or even an “infomercial” or a “news

magazine” (which are generally not also shown in theaters and sold as movies on DVDs), even if

the movie is broadcast. Given McConnell’s focus and record, there is no justification for treating

a full-length documentary movie—especially one with neither express advocacy nor “an appeal

to vote”—as in any way being “the functional equivalent of express advocacy.” WRTL II, 127 S.

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 10 of 18
Response to Motion to Dismiss 11

Ct. at 2667. The problem that McConnell identified as being a compelling justification for the

electioneering communication prohibition had to do with ads, not movies. 540 U.S. at 126-28.

There was no record evidence that movies were a problem, so neither McConnell nor the studies

(of ads) on which it relied provide any support for applying the prohibition to a full-length

movie.

The fact that this documentary is unflattering to Senator Clinton does not convert it from

a protected movie into an unprotected “sham issue ad,” any more than Michael Moore’s

criticisms of President George W. Bush in Fahrenheit 9/11 make his movie a “sham issue ad.”

Movies were simply not at issue in McConnell and they may “reasonably be interpreted as

something other than as an appeal to vote for or against a specific candidate”—i.e., they are about

the traditional First Amendment goals of communicating ideas and viewpoints, discussing public

figures and issues, and (usually, it is hoped) making money by sales—so they “are not the

functional equivalent of express advocacy, and therefore fall outside the scope of McConnell’s

holding.” Id. at 2670.

The fact that CU was to pay a fee in connection with the broadcasting of Hillary does not

change the fact that Hillary is the functional equivalent of a book, not an ad. As explained in the

Amended Verified Complaint, CU would pay a fee:

28. On December 20, 2007, a company that markets nationwide Video on Demand (“VOD”) broadcasting of programs on cable

television made an offer to Citizens United to broadcast Hillary: The

Movie, for a fee to be paid by Citizens United, to cable viewers

nationwide (or to such markets as remain appropriate when the

judicial relief requested herein is provided). Hillary would be

broadcast under a “Political Movies” component of “Elections ’08,

a new channel sponsored by the cable industry. The contract offered

would be for 4 weeks. A true and correct copy of the current (not

finalized) script of Hillary is filed separately under seal. See Exhibit

2 (under seal). Citizens United expects further opportunities to put

Hillary on television in the near future by other means.

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 11 of 18
Response to Motion to Dismiss 12

As a matter of law, the presence or absence of a fee has nothing to do with whether a communication is or is not an “electioneering communication.” Initially, the FEC promulgated a rule,

former 11 C.F.R. § 100.29(b)(3)(i), that only communications broadcast “for a fee” were within

the “electioneering communication” definition. This was overturned in Shays v. FEC, 337 F.

Supp. 2d 28 (D.D.C. 2004), aff’d 414 F.3d (D.C. Cir. 2005), reh’g en banc denied, No. 04-5352

(D.C. Cir. Oct. 21, 2005), and the FEC issued a new rule indicating that the payment of a fee was

irrelevant. See 70 Fed. Reg. 75713. And the historically-recognized constitutional protection

afforded to books under freedoms of speech and press has also never turned on whether the book

was published for a fee or whether an author was fortunate enough to get a publisher to foot the

bill. In book publishing there are a variety of arrangements for publication—ranging from books

that are entirely self-published, to books where an author shares the expense and risk with a

publisher, to arrangements where a publisher pays all of the costs—and there is a wide range of

agreements as to the payment of royalties. For constitutional purposes, a self-published book has

every bit of the First Amendment protection that is afforded to a book entirely funded by a

publisher. These same principles apply to Hillary, which is the functional equivalent of a book.

Ignoring WRTL II’s actual “appeal to vote” test, the clear distinction between “ads” and

movies, the broad scope that WRTL II established for issue advocacy, the reasonable interpretation that Hillary has other than as “an appeal to vote,” and the clear constitutional protection for

books and movies, the FEC attempts to substitute elements of WRTL II’s application of its

“appeal to vote” test to grassroots lobbying, which is not at issue here. As the FEC notes, Mem. 6

n.1, CU has already acknowledged that Hillary discusses elections and candidacy and that it is

critical of Senator Clinton in several ways. The FEC lists some examples. Mem. 6-9. But of

course, the WRTL II test does not require that there be no discussion of elections or candidacy in

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 12 of 18
1WRTL sought a preliminary injunction during the 2006 prohibition period, as part of its

ongoing WRTL litigation, to permit it to run this CCPA ad (preliminary injunction was denied

and a decision on the ad was held in abeyance until after WRTL II):

Listen up, parents. Wisconsin requires parental consent before your minor

daughter can have an abortion. But, she can be taken to Illinois for an abortion

that is kept secret from you. Imagine, your daughter can be taken across state lines

for a major surgical procedure without your knowledge or consent. The U.S.

Senate recently passed a bill to protect parents from secret abortions. Fortunately,

Senator Kohl voted for the rights of parents. But, sadly, Senator Feingold did not.

Your help is urgently needed because some Senators are holding up further action

on the bill. Please call Senators Kohl and Feingold at 202-224-3121 and urge

them to stop efforts by the Senate Democratic leadership to hold up a bill which

will prevent secret abortions. That’s 202-224-3121.

Response to Motion to Dismiss 13

order to avoid the prohibition, nor even that a communication not criticize a candidate, but only

that there be an unambiguous “appeal to vote,” which is the one thing the FEC is unable to

demonstrate. The FEC here makes the error of attempting to substitute a particular application of

the WRTL II test to a particular set of facts in the particular context of grassroots lobbying for the

test itself.

As to the presence or absence of criticism, the FEC has specifically settled two cases in

which there was criticism of a candidate but where the FEC agreed that, under WRTL II, these

electioneering communications could not be prohibited. In both of these cases, the FEC and the

intervenors (BCRA prime sponsors Sen. McCain et al.) agreed to a stipulated judgment conceding that the ads at issue were protected issue advocacy under WRTL II’s test. One of these cases

is WRTL III, which held the electioneering communication prohibition unconstitutional as

applied to WRTL’s 2006 Child Custody Protection Act (“CCPA”) advertisement. Wisconsin

Right to Life v. FEC, No. 04-1260, slip op. at 1 (D.D.C. July 23, 2007) (“WRTL III”).1

 The

CCPA ad stated the positions of Senators Feingold and Kohl (the candidate), based on their prior

votes, and characterized their positions in a way that praised the candidate and criticized the

non-candidate. The other case involved a “Crossroads” advertisement that the Christian Civic

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 13 of 18
2CCLM sought judicial protection to run this Crossroads ad (preliminary injunction was

denied and the case dismissed for mootness, which decision the Supreme Court reversed):

Our country stands at the crossroads—at the intersection of how marriage will be

defined for future generations. Marriage between a man and a woman has been

challenged across this country and could be declared unconstitutional at any time

by rogue judges. We must safeguard the traditional definition of marriage by

putting it beyond the reach of all judges—by writing it into the U.S. Constitution.

Unfortunately, your senators voted against the Marriage Protection Amendment

two years ago. Please call Sens. Snowe and Collins immediately and urge them to

support the Marriage Protection Amendment when it comes to a vote in early

June. Call the Capitol switchboard at 202-224-3121 and ask for your senators.

Again, that’s 202-224-3121. Thank you for making your voice heard.

3The safe harbor provision is set out at 11 C.F.R. § 114.15(b), also available at 72 Fed.

Reg. 72914. It provides much of the language on which the FEC relies in its briefing concerning

whether Hillary is prohibited.

Response to Motion to Dismiss 14

League of Maine (“CCLM”) sought to run.2

 This ad stated the candidate’s and non-candidate’s

position on the issue and characterized that position in a way that criticized both. The district

court held the electioneering prohibition unconstitutional as applied to the Crossroads ad.”

Christian Civic League of Maine v. FEC, No. 06-614, slip op. at 1-2 (D.D.C. Aug. 21, 2007)

(“CCLM”). Consequently, there is now no question that ads stating a candidate’s position and

characterizing that position in a way that praises or criticizes the candidate may be fully protected

issue advocacy and excluded from the electioneering communication definition.

Moreover, the FEC has now conceded that the “Questions” ad is not subject to the

prohibition, although it did not concede that it fell within the FEC’s safe harbor provision,3

 and

that ad describes Senator Clinton in several ways that the FEC must surely think are critical of

her “character, qualifications, or fitness for office.” 11 C.F.R. § 114.15(b)(2). So the FEC has

already conceded that whether or not there is an unambiguous “appeal to vote” does not turn on

whether or not there is criticism of the candidate. And when the FEC conceded that “Questions”

met WRTL II’s “appeal to vote” test, Doc. #33 at 17, it also conceded that a communication could

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 14 of 18
Response to Motion to Dismiss 15

meet the “appeal to vote” test without meeting the factors set out in the FEC’s safe harbor, which

is inconsistent with the FEC’s present argument that continues to use the safe-harbor language as

the basis of its argument for why Hillary fails the “appeal to vote” test.

And the FEC’s argument that Hillary “‘does not focus on legislative issues,’” Mem. 9

(citation omitted), is a meaningless argument beyond the grassroots lobbying context. WRTL II in

fact defined “issue advocacy” without resort to a focus on a legislative issue: “Issue advocacy

conveys information and educates. 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.” 127 S. Ct. at 2667. Hillary in fact, discusses a wide range of issues,

as the FEC notes, Mem. 9, doing so in the approved context of the intermingled “‘discussion of

issues and candidates.’” WRTL II, 127 S. Ct. at 2669 (quoting Buckley, 424 U.S. at 42). In a book

or a documentary movie about a public figure, a central issue will be that public figure—What is

she like? What does she think? What has she done?— but that focus has never warranted

government suppression of a book since the passage of the First Amendment, just as it may not

justify suppression of a documentary movie. Talking about public officials, even criticizing them,

is the essence of core First Amendment protection.

In fact, WRTL II was decided in response to the FEC’s and Intervenors’ argument that

criticism was the real indicator of the wrong intent that made an electioneering communication

subject to prohibition and to WRTL’s extended argumentation that criticism of public officials is

at the core, not the periphery, of First Amendment protection, see Brief for Appellee at 1-5,

WRTL II, 127 S. Ct. 2652, which included the following quote:

This struggle of the government to silence the people continues here

as BCRA sponsors, Intervenors herein, defend the “electioneering

communication” prohibition by declaring that quashing criticism is

the true intent behind the provision and thus argue that broadcast ads

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 15 of 18
Response to Motion to Dismiss 16

are sham, not genuine, if the ads (a) “took a critical stance regarding

a candidate’s position on an issue” and (b) “referred to the candidate

by name.” Intervenors’ Br. at 22 (emphasis added). Intervenors’ Brief

is replete with complaints about Senators being criticized for their

positions on a current legislative matter. See id. at 3, 10, 11, 15, 16,

22, 23 n.11, 24, 25 n.14, 27, 28, 36. So is the FEC’s Brief. See FEC

Br. at 10, 11, 19, 20, 33, 44, 48. [Brief for Appellee at 5, WRTL II,

127 S. Ct. 2652.]

WRTL II clearly rejected the FEC’s notion then, as this Court must do now, that if citizens

criticize public officials then the government may restrict their speech. Such pre-Revolutionary

British and European thought was rejected in this Republic with the First Amendment.

In sum, Hillary is not subject to the electioneering communication prohibition, both

because it contains no language expressing the requisite unambiguous “appeal to vote” and

because the evidence on which McConnell relied, as well as that opinion itself, had solely to do

with ads, not full-length movies. The prohibition is unconstitutional as applied to Hillary for both

of these reasons.

B. Dismissal Would Be Improper Because the FEC Is Doing Discovery as to Whether

CU Is a Media Entity, Leaving an Open Issue That Could Permit All Broadcasts.

As stated in the Verified Amended Complaint, CU earlier sought recognition as a media

entity, so that it could broadcast its ads and movies without being subject to the electioneering

prohibition, but was told by the FEC that it did not fit within the press exception:

15. When Citizens United produced Celsius 41.11 in 2004, it

ran national broadcast ads promoting the film. The original version

of the ads had images and sound bites of President George Bush and

Senator John Kerry, but those images and sound bites had to be

deleted from the ads due to the electioneering communication

prohibition. Prior to running the ads, Citizens United received FEC

Advisory Opinion 2004-30, stating that its film and film ads would

qualify as electioneering communications and would not be exempt

under the Press Exemption.

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 16 of 18
Response to Motion to Dismiss 17

Presently, the FEC lacks a quorum of Commissioners to issue any such official determinations,

so obtaining a possibly different advisory opinion is impossible.

Yet the FEC legal counsel have stated in conference with CU counsel that they are doing

discovery, including in a currently outstanding set of interrogatories, as to whether CU is a media

entity so as to fall within the press exception. If the FEC were to take the position that CU is, in

fact, a media entity and that all of its broadcasts are protected from the electioneering communication prohibition by the press exception, then CU could freely broadcast Hillary without

violating the prohibition.

Since the FEC has made this an open question, it cannot consistently seek at this point to

dismiss Count 3, and this Court should deny the motion to dismiss Count 3 on that ground alone.

At a minimum, if this Court were to decide to dismiss Count 3, it should only do so without

prejudice, so that CU could revive Count 3 if the FEC actually asserts that CU is a media entity

and its broadcasts are protected by the media exception.

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 17 of 18
Response to Motion to Dismiss 18

Conclusion

For the reasons stated, Count 4 (re “Questons”) should be dismissed without prejudice,

but Count 3 (re Hillary) should not be dismissed. In the alternative, if this Court decides to

dismiss Count 3, it should do so without prejudice.

Dated: March 24, 2008 Respectfully Submitted,

/s/ James Bopp, Jr. 

James Bopp, Jr., D.C. Bar #CO0041

Richard E. Coleson*

Jeffrey P. Gallant*

Clayton J. Callen*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

* Pro Hac Vice Motion granted

Counsel for Plaintiff

Case 1:07-cv-02240-RCL-RWR Document 46 Filed 03/24/2008 Page 18 of 18