Second PI Motion 1

United States District Court

District of Columbia

Citizens United,

Plaintiff,

v.

Federal Election Commission,

Defendant.

Case No. 07-2240-RCL

 THREE-JUDGE COURT

Second Motion for Preliminary Injunction

Citizens United moves for a preliminary injunction as set out below and for the

reasons set out in the accompanying Memorandum and Amended Verified Complaint for

Declaratory and Injunctive Relief. Fed. R. Civ. P. 65(a).

In its first preliminary injunction motion, Citizens United challenged the constitutionality of (a) § 201 (the “Reporting Requirement”) of the Bipartisan Campaign Reform Act of

2002 (“BCRA”) and (b) BCRA § 311 (the “Disclaimer Requirement”) as applied to

communications that meet the statutory definition of electioneering communications, 2

U.S.C. § 434(f)(3), but are not properly considered electioneering communications for any

purpose, including disclosure, because the “ads may reasonably be interpreted as something

other than as an appeal to vote for or against a specific candidate, . . . are not the functional

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

FEC v. Wisconsin Right to Life, 127 S. Ct. 2652, 2670 (2007) (“WRTL II”), and, specifically,

Citizens United’s planned advertising (the “Ads”) promoting a new documentary shortly to

be released in theaters and in DVD format. Citizens United continues that challenge in its

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 1 of 22
Second PI Motion 2

Amended Complaint and continues to seek the relief requested in the prior preliminary

injunction.

The present preliminary injunction motion additionally challenges the constitutionality of the Disclosure Requirements as applied to a documentary film entitled Hillary: The

Movie. It also challenges the electioneering communication prohibition at BCRA § 203

(“Prohibition”), codified at 2 U.S.C. § 441b, as applied to the Hillary film, as applied to the

“Questions” ad, and facially.

Citizens United submits that it meets the standards for a preliminary injunction, i.e., it

has probable success on the merits, it will be irreparably harmed, others will not be substantially harmed, the public interest will be served, and there is no adequate remedy at law.

Pursuant to Local Rule of Civil Procedure 7(m), Citizens United has conferred with

legal counsel for the FEC regarding this motion. The FEC states that it takes no position on

this motion because of inadequate time to consider it.

Because a preliminary injunction presents no monetary risks to the FEC, Citizens

United requests that bond be set at $1. Fed. R. Civ. P. 65(c).

For the reasons stated in the accompanying Memorandum and Amended Complaint,

Citizens United prays that the Court grant this motion and preliminarily enjoin the FEC from

enforcing the challenged provisions as applied, and the Prohibition facially, until a final

hearing on the merits.

Oral argument is requested on this motion because of the complex legal arguments

involved in this case.

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 2 of 22
Second PI Motion 3

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 pending

Counsel for Plaintiff

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 3 of 22
Second PI Memorandum

United States District Court

District of Columbia

Citizens United,

Plaintiff,

v.

Federal Election Commission,

Defendant.

Case No. 07-2240-RCL

 THREE-JUDGE COURT

Memorandum in Support of

Second Motion for Preliminary Injunction

_______________

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 pending

Counsel for Plaintiff

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 4 of 22
Second PI Memorandum i

Table of Contents

Table of Authorities ......................................................... i

Introduction ............................................................... 1

Facts ..................................................................... 2

Argument ................................................................. 2

I. Plaintiff Has a Substantial Likelihood of Success on the Merits. .......... 3

II. Plaintiff Will Suffer Irreparable Injury Without the Injunction. .......... 12

III. The Injunction Will Not Substantially Injure Others. .................. 14

IV. The Injunction Furthers the Public Interest. .......................... 16

Conclusion ............................................................... 16

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 5 of 22
Second PI Memorandum ii

Table of Authorities

Cases

*Buckley v. Valeo, 424 U.S. 1 (1976) ......................................... 2, 5

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

McConnell v. FEC, 540 U.S. 93 (2003) ...................................... 1-4, 9

Statutes, Rules, and Constitutional Provisions

11 C.F.R. § 114.15 ........................................................ 6-7

2 U.S.C. § 441b ............................................................ 1

Bipartisan Campaign Reform Act of 2002 (“BCRA”) ......................... passim

Pub. L. No. 107-155 ......................................................... 1

*U.S. Const. amend. I .................................................. passim

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 6 of 22
Second PI Memorandum 1

Introduction

Citizens United has filed a prior preliminary injunction motion and memorandum,

which it still wants decided. But a new fact pattern arose on December 20, 2007, which gives

rise to the need for the Amended Complaint that has been filed, providing the new verified

facts and adding counts based thereon. This present preliminary injunction and memorandum

address the new facts and counts and are supplemental to the ones previously filed by

Citizens United. Plaintiff will therefore not burden the Court by cutting and pasting materials

already briefed. Rather, the Court will be cited to the prior memorandum (“First PI Memo”)

for much of the material herein, in order to facilitate the Court’s reading and analysis as to the

new facts, claims, and motion.

Both the First PI Memo and the present one address as-applied challenges—on the

pattern of FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007) (“WRTL II”)—to provisions of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116

Stat. 81, that had been facially upheld in McConnell v. FEC. 540 U.S. 93 (2003). In addition,

the present memorandum addresses a facial challenge to the electioneering communication

prohibition at BCRA § 203 (prohibiting corporations and labor unions from making electioneering communications) for reasons raised in WRTL II.

Specifically, this memorandum addresses the challenges to the constitutionality of

BCRA § 201 (“Disclosure Requirement”) and BCRA § 311 (“Reporting Requirement”),

collectively the “Disclosure Requirements,” as applied to Hillary: The Movie. And it

addresses the challenge to BCRA § 203, the “Prohibition,” codified at 2 U.S.C. § 441b, as

applied to Hillary and the “Questions” ad, and also the facial challenge to the Prohibition.

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 7 of 22
Second PI Memorandum 2

As set out in the Introduction to the First PI Memo, from Buckley v. Valeo, 424 U.S. 1

(1976), to WRTL II, the Supreme Court has required that Congress only regulate communications that are “unambiguously related to the campaign of a particular federal candidate,” id. at

80, because they call for a vote for or against that candidate. See id. (connecting unambiguous

campaign related requirement with solicitation to vote for or against a candidate). Buckley

expressly applied this unambiguously-campaign-related requirement to the disclosure of

expenditures. Id. at 80. Therefore, it has direct application here.

McConnell facially upheld the Disclosure Requirements. 540 U.S. at 194-202. As set

out below, the Disclosure Requirements are unconstitutional as applied to the activities

planned by Citizens United, which activities are not unambiguously campaign related—in

that they do not urge a vote for against a candidate—and so are beyond Congress’ authority to

regulate and are protected by the First Amendment. McConnell also facially upheld the

Prohibition, id. at 206, which WRTL II narrowed, 127 S. Ct. at 2667, and for which WRTL II

left the door open to facial invalidation based on the sort of circumstances that have now

arisen. See id. at 2674 (Alito, J., concurring).

Facts

Citizens United incorporates by reference the facts set out in ¶¶ 5-33 of the verified

Amended Complaint.

Argument

Citizens United refers the Court to the standards governing preliminary injunctions

and the arguments set out in the introductory part of its Argument section in its prior

memorandum. First PI Memo at 9-12.

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 8 of 22
Second PI Memorandum 3

I. Plaintiff Has a Substantial Likelihood of Success on the Merits.

The Court is respectfully referred to Part I.A, of the First PI Memo for argument

concerning the implications of the Supreme Court’s requirement that restrictions on what

WRTL II styled “issue advocacy,” 127 S. Ct. at 2659, 2667, 2671-73, or “political speech,”

id. at 2659-60, 2664-66, 2669, 2671-74, are not permitted unless the speech is “unambiguously related to the campaign of a particular federal candidate,” id. at 80, because it calls for a

vote for or against that candidate. Electioneering speech is referred to in WRTL II as

“campaign speech,” id. at 2659, 2668, 2671-73, to distinguish it from fully-protected

“political speech” or “issue advocacy.”

The Court is referred to Part I.B of the First PI Memo for argument concerning WRTL

II’s mandate that as-applied challenges must be workable and protect core political speech.

The workability and protection requirements have clear applicability to the as-applied

challenges to the Disclosure Requirements, but they govern particularly powerfully the asapplied and facial challenge to the Prohibition, as developed further infra.

The Court is referred to Part I.C of the First PI Memo for argument concerning the

fact that McConnell did not decide the present issues so as to preclude the present as-applied

challenges. Of course, WRTL II itself established that there could be both as-applied and

facial challenges to the Prohibition.

In Part I.D of the First PI Memo, Citizens United explained why its Ads were not

unambiguously campaign related (by soliciting a vote for or against a candidate) and why

they were the sort of highly-protected, non-electioneering, core “political speech” that WRTL

II said could not constitutionally be permitted to fall within the definition of “electioneering

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 9 of 22
1The controlling opinion made this clear by repeatedly stating that ads that are not the

functional equivalent of express advocacy under the no-other-reasonable interpretation test

are to be free from “regulation,” not just prohibition. See WRTL II, 127 S. Ct. at 2671 (“we

reject the contention that issue advocacy may be regulated because express election

advocacy may be”); id. (“A corporate ad expressing support for the local football team could

not be regulated on the ground that such speech is less “core” than corporate speech about an

election”); id. (“This Court has never recognized a compelling interest in regulating ads, like

WRTL’s, that are neither express advocacy nor its functional equivalent. The District Court

below considered interests that might justify regulating WRTL’s ads here, and found none

sufficiently compelling. We reach the same conclusion”); id. at 2664 (“BCRA survives strict

scrutiny to the extent it regulates express advocacy or its functional equivalent”); id. at 2672

(“Issue ads like WRTL’s are by no means equivalent to contributions, and the quid-pro-quo

corruption interest cannot justify regulating them”); id. (“such a prophylaxis-upon-prophylaxis approach to regulating expression is not consistent with strict scrutiny”); id. at 2673

(“the interest recognized in Austin as justifying regulation of corporate campaign speech and

extended in McConnell to the functional equivalent of such speech has no application to issue

advocacy of the sort engaged in by WRTL”); id. at 2672 (“to justify regulation of WRTL’s

ads, this interest must be stretched yet another step to ads that are not the functional equivalent of express advocacy. Enough is enough”); id. at 2659 (“We further conclude that the

interests held to justify restricting corporate campaign speech or its functional equivalent do

not justify restricting issue advocacy”); id. (“we have recognized that the interests held to

justify the regulation of campaign speech and its “functional equivalent” might not apply to

the regulation of issue advocacy”) (citations and quotations omitted); id. at 2671 (“That a

compelling interest justifies restrictions on express advocacy tells us little about whether a

compelling interest justifies restrictions on issue advocacy”).

Second PI Memorandum 4

communication.” Id. at 2667. WRTL II reiterated that such communications could not be

“regulated” or “restricted,”1

 not just that it was forbidden to prohibit them. Given that WRTL

II said that “issue advocacy” or “political speech” is not “campaign speech” or electioneering,

see supra, there is no more justification for regulating such protected speech as an “electioneering communication” by the Disclosure Requirements than there was to regulate it by a

prohibition. If it is not campaign speech (i.e., calling for a vote for or against a candidate),

Congress has no authority to regulate it.

The Disclosure Requirement is also unconstitutional as applied to Hillary: The Movie.

The script of Hillary has been filed under seal because it is copyrighted, intellectual property

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 10 of 22
Second PI Memorandum 5

of Citizens United, who intends to market Hillary in theaters, in broadcasts, on DVDs, and in

a compendium book to be sold with the DVDs. However, the Court is able to review the

script and see that the following representations are accurate. Hillary contains no express

advocacy, so it is not an “independent expenditure.” But it does mention Senator Clinton, a

candidate, and because it will be broadcast to sufficient potential viewers in electioneering

communication periods before presidential primaries it will qualify under the statutory

electioneering communication definition, which makes it subject to the Disclosure Requirements. But while, as a documentary, it discusses Hillary Clinton and has footage of numerous

people discussing her, Hillary is not “unambiguously campaign related,” Buckley, 424 U.S. at

80, by calling for a vote for or against her. See id. at 80 (unambiguously campaign related

requirement connected to calling for a vote in communications). And because it “may

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

specific candidate, . . . [it is] not the functional equivalent of express advocacy, and therefore

fall[s] outside the scope of McConnell’s holding,” WRTL II, 127 S. Ct. at 2670, so that it is

not properly subject to the Disclosure Requirements because it is not properly an electioneering communication. It is, to use WRTL II’s distinction, “political speech” or “issue advocacy”

not “campaign speech” or “electioneering.” See supra. Consequently, Congress has no

justification for requiring disclosure concerning Hillary: The Movie.

Citizens United also challenges the Prohibition as applied to Hillary. While the movie

does not properly fit the electioneering communication definition, so that it ought not to be

prohibited, Citizens United remains at risk for investigation, enforcement, and penalties and

is chilled from broadcasting Hillary. The movie does not fit within the safe harbor that the

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 11 of 22
Second PI Memorandum 6

FEC has created at 11 C.F.R. § 114.15(b) because it neither focuses on a governmental issue

for grassroots lobbying nor proposes a commercial transaction and, moreover, it cannot be

said of the movie that it “(1) Does not mention any election, candidacy, political party,

opposing candidate, or voting by the general public,” or “(2) Does not take a position on any

candidate’s or officeholder’s character, qualifications, or fitness for office.” Id.

Nor is Hillary protected by the FEC’s interpretation of the rule established by WRTL

II. 127 S. Ct. at 2667. The FEC initially states it as follows: “Corporations . . . may make an

electioneering communication . . . unless the communication is susceptible of no reasonable

interpretation other than as an appeal to vote for or against a clearly identified candidate.” 11

C.F. R. § 114.15(a). But in subsection (c), “Rules of interpretation,” the FEC immediately

demoted WRTL II’s test to just part of the FEC test:

(c) Rules of interpretation. If an electioneering communication does not

qualify for the safe harbor in paragraph (b), 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

(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

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 12 of 22
Second PI Memorandum 7

(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), any doubt will be

resolved in favor of permitting the communication. [11 C.F.R.

§ 114.15(c).]

Given the FEC’s test, there is no way for Citizens United to know whether it will be

subject to an investigation, enforcement, and penalties for broadcasting Hillary. First, as

already noted, the movie (a) mentions election-related topics (election, candidacy, party,

voting) and (b) takes a position on a candidate’s character, qualifications and fitness for

office—both of which are listed by the FEC as “indicia of express advocacy.” To be sure,

WRTL II mentioned such matters in applying its no-other-reasonable-interpretation test to a

specific type of issue advocacy, i.e., grassroots lobbying, 127 S. Ct. at 2667, but it did not

substitute this fact-specific application of the test for the test itself. Second, the FEC’s rule

requires certain “content” and restates, for the third time, the WRTL II test. This repeated use

of the test to interpret the test is confusing and demotes the actual WRTL II test to a mere

element in an FEC-created interpretation of the proper test. And the required “content” is

either (i) grassroots lobbying activity or (ii) proposing a commercial transaction, or (iii)

“includ[ing] a call to action . . . other than voting”—none of which applies to Hillary. What

is missing is WRTL II’s recognition that “[i]ssue advocacy conveys information and educates,” id., which it may do without any call to action—as Hillary does.

Citizens United also challenges the Prohibition as applied to the “Questions” ad.

When it filed the first Complaint, Citizens thought that the ad clearly fit within the FEC’s

new rule exempting communications from the Prohibition. But on the evening of December

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 13 of 22
Second PI Memorandum 8

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. This highlights perfectly the

need for the declaratory and injunctive relief sought as to this ad. 

So once again an advocacy group is before this Court seeking declaratory and

injunctive relief from the Prohibition for its planned activity. This return to the courts is

necessary for the sake of Citizens United, the First Amendment, and a system of participatory, self-government where the people are sovereign—but it demonstrates the need for a

facial remedy, as discussed next.

Citizens United also challenges the Prohibition on its face. In BCRA, Congress

mandated that courts “advance on the docket and . . . expedite to the greatest possible extent

the disposition of the action,” 116 Stat. 114, and WRTL II mandated that as-applied challenges must be workable and highly protective of First Amendment rights in order to make

them an adequate remedy—to avoid the necessity of overturning McConnell’s facial

upholding of the prohibition at issue. 127 S. Ct. at 2666-67. WRTL had expressly asked the

Supreme Court in WRTL II to overrule its facial upholding of the electioneering communicaCase 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 14 of 22
Second PI Memorandum 9

tion restrictions in McConnell, 540 U.S. 93, unless the Court provided the relief of both (a)

stating a generally-applicable test to reduce the need for litigation and (b) making as-applied

challenges an adequate remedy for protecting the First Amendment liberties of groups

seeking to broadcast genuine issue ads by limiting the burdens of litigation. Brief for

Appellee at i, 62, 65-70, WRTL II, 127 S. Ct. 2652.

WRTL described to the Supreme Court how the as-applied remedy had been wholly

inadequate in vindicating its First Amendment rights due to the heavy burdens of expensive,

burdensome, and intrusive discovery and litigation, with relief coming only long after the

effective opportunity to run WRTL’s ads had passed. Id. WRTL described the numerous

depositions to which it was subjected and the fact that it “was required to produce a substantial volume of documents about its inner workings, plans, and finances—all information that

an ideological group would otherwise keep private.” Id. at 10 n.19. And WRTL summarized

the future inadequacy of the as-applied remedy—unless the Supreme Court’s holding made it

adequate by limiting how future litigation should be conducted—as follows:

So any citizen group having the temerity to want to run future ads must (1)

plan well in advance to allow ample litigation time (problematic because the

need for grassroots lobbying frequently arises on short notice), (2) retain a

lawyer, (3) endure the invasion of its privacy by a discovery investigation at

the hands of the FEC and Intervenors (which often will include their political

opponents), and (4) pay the legal expenses and costs to endure the scorchedearth litigation practices of the federally-funded FEC and the statutorilypermitted Intervenors in order to get prior permission from a court to run a

constitutionally-protected communication at the core of our system of selfgovernance by the people. [Id. at 66.]

WRTL II took explicit notice of the “chill” resulting from “‘costly, fact-dependent

litigation,’” 127 S. Ct. at 2665-66 (quoting Brief for Appellee [FEC] at 39, Wisconsin Right

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 15 of 22
Second PI Memorandum 10

to Life v. FEC, 546 U.S. 410 (2006) (“WRTL I”)), and set out the example of the burden of

litigation imposed on WRTL in attempting to vindicate its First Amendment liberties:

Consider what happened in these cases. The District Court permitted extensive

discovery on the assumption that WRTL’s intent was relevant. As a result, the

defendants deposed WRTL’s executive director, its legislative director, its

political action committee director, its lead communications consultant, and

one of its fundraisers. WRTL also had to turn over many documents related to

its operations, plans, and finance. Such litigation constitutes a severe burden

on political speech. [Id. at 2666 n.5.]

In response to these identified problems, WRTL II (a) stated a First Amendmentprotective test, id. at 2667, and (b) prescribed how as-applied challenges must be conducted

to assure adequate protection for vital First Amendment liberties. Id. at 2666-67. WRTL II

said that “the proper standard . . . must be objective, focusing on the substance of the

communication.” 127 S. Ct. at 2666. There must be “minimal if any discovery, to allow

parties to resolve disputes quickly without chilling speech through the threat of burdensome

litigation.” Id. There must not be “open-ended . . . factors” that result in “‘complex argument

in a trial court and a virtually inevitable appeal.’” Id. (citation omitted). The litigation “must

give the benefit of any doubt to protecting rather than stifling speech.” Id. at 2667 (citation

omitted). See also id. at 2669 n.7 (restating test and limitations on conduct of as-applied

litigation). In addition to joining the controlling opinion, which sought to make the as-applied

remedy workable, Justice Alito expressly noted that if as-applied challenges didn’t prove

workable the Court would be asked to consider a facial overturning of the Prohibition. Id. at

2674.

That day has come. As shown by this case, potential speakers still cannot know for

certain whether a documentary like Hillary or an ad like “Questions” is protected or unproCase 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 16 of 22
Second PI Memorandum 11

tected speech. They still must bear the expense and burden of hiring a lawyer to vindicate

their rights. As-applied remedies, even when expedited, still are too slow to keep up with the

fast-moving world of issue advocacy and commercial ventures. Citizens United received an

offer to broadcast Hillary on December 20 and would like to be able to immediately respond,

but it cannot because it must await judicial protection. By their very nature, ads and a film of

the sort at issue in this case will be hot commodities immediately before the primaries, which

means that the as-applied remedies that WRTL II provided must be brought in the middle of

the winter holidays when all involved have plans to be out of the office—some for more

extended vacation time. The FEC complains that it is “particularly busy” right now, yet

curiously suggests that Citizens United might have taken the slow and uncertain route of an

advisory opinion. Doc. #18 at 9. The Court may take judicial notice of the widespread news

accounts about whether the FEC will even have enough commissioners to issue advisory

opinions at present. The FEC and the “reform” community may still be counted on to resist,

rather than facilitate, the obtaining of required judicial relief. The FEC’s very opposition to 

consolidating the hearings on the preliminary injunction and the merits is an argument for

delay that proves the inadequacy of the as-applied remedy in situations such as the present.

And rather than acquiescing to WRTL II’s clear message that all doubts must be resolved in

favor of freedom of speech and against censorship, the FEC has reintroduced doubt with its

recent rule—and now by questioning whether the “Questions” ad is subject to the Prohibition.

Enough is enough. Congress’ burdensome experiment in restricting the free involvement of citizens and citizen groups in the marketplace of ideas must be ended. This Court

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 17 of 22
Second PI Memorandum 12

should do what WRTL II indicated might need to be done and facially invalidate the electioneering prohibition.

II. Plaintiff Will Suffer Irreparable Injury Without the Injunction.

In addition to having a high likelihood of success on the merits, Plaintiff will suffer

irreparable harm unless it receives the requested injunctive relief. As noted in the initial

discussion of the implications of WRTL II for the present motion, supra Part I, WRTL forever

lost the opportunity to broadcast its fully protected issue ads because it did not receive a

preliminary injunction. It was plainly irreparably harmed.

Here, too, Plaintiff wishes to engage in First Amendment activities that are “‘both

certain and great . . . actual not theoretical,’” England, 454 U.S. at 297 (citation omitted), are

“of such imminence that there is a ‘clear and present’ need for equitable relief to prevent

irreparable harm,” id. (citation and emphasis omitted), and in which “the injury [is] beyond

remediation.” Id. Plaintiff is barred by criminal penalties from engaging in First Amendment

expression and association activities it wishes to do, which “loss of First Amendment

freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

Elrod v. Burns, 427 U.S. 347, 373 (1976). Plaintiff has decided that it will not do its intended

First Amendment activities as planned unless it receives judicial protection, and such selfcensorship “[i]s a harm that can be realized even without actual prosecution.” Virginia v.

American Bookseller’s Ass’n Inc., 484 U.S. 383, 393 (1988). It has “establish[ed] that [it is]

or will be engaging in constitutionally protected behavior,” which demonstrate[s] that the

allegedly impermissible government action would chill allowable individual conduct.”

England, 454 F.3d at 301. “[Plaintiff’s] ‘First Amendment interests are either threatened or in

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 18 of 22
2The D.C. Circuit has advised looking to the merits in constitutional-rights cases:

[I]n cases involving a claim by movant of interference with protected freedoms or other constitutional rights, the finding of irreparable injury cannot

meaningfully be rested on a mere contention of a litigant, but depends on an

appraisal of the validity, or at least the probable validity, of the legal premise

underlying the claim of right in jeopardy of impairment. It often happens that

when the parties present conflicting claims of rights and conflicting fears of

threatened injury, one from the impact of the activity sought to be restrained,

the other from the impact of any injunctive order, the situation realistically

facing the court is this, that one party or the other will be injured whichever

course is taken. A sound disposition in the interest of justice from the process

of discerning and weighing of pertinent interests must depend on a reflective

and attentive appraisal as to the outcome on the merits. [Delaware & H. Ry.

Co. v. United Transp. Union, 450 F. 3d 603, 619-20 (D.C. Cir. 1971).]

3

In the WRTL II litigation, the FEC actually opposed the preliminary injunction on the

(continued...)

Second PI Memorandum 13

fact being impaired at the time relief is sought.’” Id. (citation omitted). This constitutes

irreparable harm.2

WRTL II expressly rejected a number of arguments by the FEC and Intervenors in that

case that the FEC might resurrect here in arguing that Plaintiff will suffer no irreparable

harm. WRTL II rejected the notion that, because WRTL had the option of doing its issue

advocacy through a political committee (“PAC”) with federal funds, it was not harmed. 127

S. Ct. at 2671 n.9. This means that neither the availability of a federal-funds option nor of an

alleged alter-ego option (which alter-ego notion is erroneous as to PACs and their connected

corporations because they are legally separate entities) removed the harm to WRTL in its

own capacity, using state funds. And WRTL II rejected the notion that a speaker could just

change the message, e.g., by not mentioning a federal candidate, id., because “‘the rule of

protection under the First Amendment [is] that a speaker has the autonomy to choose the

content of his own message.’” Id. (citation omitted).3

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 19 of 22
3

(...continued)

novel theory that this Court’s preliminary injunction would not provide WRTL any effective

protection because in the event WRTL ultimately lost the FEC, or the Attorney General (if a

violation were knowing and willful), could still bring an enforcement action. See Defendant

Federal Election Commission’s Opposition to Plaintiff’s Motion for a Preliminary Injunction

at 40-43, WRTL v. FEC, 466 F. Supp. 2d 195 (D.D.C. 2006) (No. 04-1260). If the FEC’s

novel theory were correct, this Court’s preliminary injunctions would be meaningless, which

the present Plaintiff does not believe is true. And there is no reason to believe that the

Attorney General would not abide by any injunction issued by this Court. Moreover, the

FEC’s novel position is contrary to the position of the four dissenting Justices in WRTL II

who believed that this Court’s preliminary injunction would provide an adequate remedy to

protect a plaintiff’s rights. See WRTL II, 127 S. Ct. at 2704 (Souter, J., joined by Stevens,

Ginsburg & Breyer, JJ.) It is likely that the other Justices would agree that a federal court’s

preliminary injunction is efficacious.

Second PI Memorandum 14

Plaintiff’s harms are irreparable and irremediable by monetary damages at law. Its

rights can only be protected by declaratory and injunctive relief.

III. The Injunction Will Not Substantially Injure Others.

As noted in the discussion of the implications of WRTL II for the present preliminary

injunction motion in Part I of the First PI Memo, WRTL’s broadcast of its fullyconstitutionally-protected issue advocacy would not, and did not, harm anyone. The questions

of harm to others and serving the public interest are, of course, inversely proportional to the

likelihood of success on the merits. As the District of Columbia Circuit said in United

Transportation Union, 450 F.3d at 620, in cases where harms are claimed on both sides, the

Court should look to the merits. See supra n.20. Given the high likelihood of success on the

merits, the likelihood of harm to the FEC or anyone else is proportionally diminished.

Nonetheless, the FEC will doubtless argue that it is harmed if it is denied the

opportunity to enforce a statute, as is it did in its successful effort to deny WRTL’s First

Amendment right to timely broadcast its 2004 anti-filibuster ads. But that generalized “harm”

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 20 of 22
Second PI Memorandum 15

cannot control or it would ban all preliminary injunctions in all cases where the constitutionality of a statute (or a regulation) is challenged, making Federal Rule of Civil Procedure 65

(and its authorizing statute) a meaningless rule as applied to the government. Such a

generalized “harm” will always be present for any agency or other enforcement entity—even

in the context of litigation over highly-protected First Amendment activities. The First

Amendment is antithetical to any such strong presumption of the constitutionality of a federal

statute that would underpin the notion that the FEC is automatically harmed by inability to

enforce a statute that has been credibly challenged as to its compliance with First Amendment

mandates.

Finally, there is no harm to anyone else from the proposed activity. Until BCRA, no

one ever thought that Congress could require disclosure as to First Amendment activity that

is not unambiguously related to the campaign of a candidate for federal office, and postWRTL II that position has both been reaffirmed and the type of speech at issue in this case has

been excluded from the electioneering category. And broadcasting a documentary movie that

seems to be protected under WRTL II, although the FEC’s enforcement policy has blurred the

prior clarity, certainly cannot be a cognizable harm. To be sure, there may be those who

would prefer that Hillary not be broadcast, but there is no cognizable interest to be considered here where Congress’ ability to regulate campaign speech is the foundation for regulation. So any possible perceived “harm” is not cognizable here—especially given the high

likelihood of success on the merits.

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 21 of 22
Second PI Memorandum 16

IV. The Injunction Furthers the Public Interest.

As with harm to others, the question of the public interest follows the likelihood of

success on the merits. Clearly, “[t]he First Amendment, in particular, serves significant

societal interests.” Bellotti, 435 U.S. at 766. It is clearly in the public interest for Americans

to be able to associate and express themselves freely where there is no cognizable governmental interest justifying restriction. And it is in the public interest to receive the information

that Plaintiff will offer in Hillary. Therefore, the requested injunctive relief serves the public

interest.

Conclusion

The Disclosure Requirements are unconstitutional as-applied to Citizens United’s

intended First Amendment activities, as is the Prohibition, and the Prohibition is also

unconstitutional on its face. All the required elements for a temporary restraining order and a

preliminary injunctive relief are met. This Court should expeditiously grant the requested

injunctive relief.

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 pending

Counsel for Plaintiff

Case 1:07-cv-02240-RCL Document 23 Filed 12/21/2007 Page 22 of 22