UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS UNITED, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civ. No. 07-2240 (ARR, RCL, RWR) 

 ) 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

 ) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MOTION 

TO DISMISS COUNTS 3 AND 4 OF THE AMENDED COMPLAINT

The Federal Election Commission respectfully moves this Court for an order dismissing 

Count 3 of the Amended Complaint for failure to state a claim upon which relief can be granted 

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and dismissing Count 4 as 

moot pursuant to Rule 12(b)(1). A memorandum of law in support of this motion and a proposed 

order are attached. 

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David B. Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: February 11, 2008 (202) 694-1650 

 

Case 1:07-cv-02240-RCL-RWR Document 43 Filed 02/11/2008 Page 1 of 13
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS UNITED, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civ. No. 07-2240 (ARR, RCL, RWR) 

 ) 

FEDERAL ELECTION COMMISSION, ) MEMORANDUM OF LAW IN SUPPORT 

 ) OF MOTION TO DISMISS 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION 

TO DISMISS COUNTS 3 AND 4 OF THE AMENDED COMPLAINT

 Defendant Federal Election Commission (“Commission”) submits this memorandum in 

support of its Motion to Dismiss Counts 3 and 4 of the Amended Complaint. Count 3 should be 

dismissed because Plaintiff’s film is susceptible of no reasonable interpretation other than as an 

appeal to vote against Senator Clinton as a candidate for President, and therefore Plaintiff may 

constitutionally be prohibited from using its corporate treasury funds to broadcast it. Count 4 

should be dismissed as moot because there is no case or controversy regarding whether the 

proposed “Questions” ad may be financed with Plaintiff’s corporate funds. 

I. LEGAL BACKGROUND 

The Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-55, as amended by the 

Bipartisan Campaign Reform Act (“BCRA”), Pub. L. No. 107-155, defines an “electioneering 

communication” (“EC”) in the context of a presidential candidate as a “broadcast, cable, or 

satellite communication” that refers to a clearly identified candidate and is made within sixty 

days before a general election or thirty days before a primary election in which that candidate is 

running. See 2 U.S.C. § 434(f)(3)(A)(i). Section 203 of BCRA provides that neither 

 

Case 1:07-cv-02240-RCL-RWR Document 43 Filed 02/11/2008 Page 2 of 13
corporations nor labor unions may use their general treasury funds to produce or broadcast ECs. 

See 2 U.S.C. § 441b(a),(b)(2). However, in FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 

(2007) (“WRTL”), the Supreme Court held that this funding restriction may constitutionally be 

applied only to ECs that are the “functional equivalent of express advocacy,” id. at 2667, which 

the Court’s controlling opinion defined as communications that are “susceptible of no reasonable 

interpretation other than as an appeal to vote for or against a specific candidate.” Id.; see infra

Part III.A.3 (discussing application of WRTL to Hillary: The Movie). 

II. FACTUAL BACKGROUND 

According to the allegations in the Amended Complaint, which are assumed to be true for 

purposes of this motion only, see infra Part III.A.1, Plaintiff Citizens United is a Virginia 

corporation holding tax-exempt status under 26 U.S.C. § 501(c)(4). (Am. Compl. ¶ 5.) Plaintiff 

has produced a film, entitled Hillary: The Movie, which “discusses [Senator Hillary Clinton’s] 

Senate record, her White House record during President Bill Clinton’s Presidency, and her 

presidential bid.” (Id. ¶ 14.) Some of the individuals featured in the film “also express opinions 

on whether she would make a good president.” (Id.) A script of the film is appended to and 

incorporated by reference in the Amended Complaint. (Id. ¶ 28 & Exh. 2.) 

Plaintiff has received an offer from “a company that markets nationwide Video on 

Demand (‘VOD’) broadcasting of programs on cable television . . . to broadcast Hillary: The 

Movie, for a fee to be paid by Citizens United, to cable viewers nationwide.” (Id. ¶ 28.) Plaintiff 

“intends to accept this offer . . . but will not do so” absent injunctive relief because using 

corporate funds to distribute the film nationwide through cable television systems within thirty 

days of a presidential primary would violate the EC funding restriction in 2 U.S.C. § 441b. (See

Am. Compl. ¶¶ 29-30.) 

2

Case 1:07-cv-02240-RCL-RWR Document 43 Filed 02/11/2008 Page 3 of 13
Plaintiff also “intends to fund television ads . . . to promote Hillary: The Movie.” (Id. 

¶ 16.) One of these ads, entitled “Questions,” is a thirty-second advertisement consisting 

primarily of three clips from the film. (See Am. Compl. Exh. 1.) Plaintiff intends to broadcast 

this ad “on Fox News cable, and may broadcast it on major television network stations” (Am. 

Compl. ¶ 18) within thirty days of a presidential primary (id. ¶ 17), thereby rendering it an 

electioneering communication. (Id. ¶¶ 17, 20.) 

III. ARGUMENT 

A. Count 3 Fails to State a Claim on Which Relief Can Be Granted 

1. Standard of Review Under Rule 12(b)(6) 

Dismissal of a complaint is appropriate when, accepting the complaint as true and 

drawing all reasonable inferences in the plaintiff’s favor, the complaint fails as a matter of law to 

state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atlantic Corp. v. 

Twombly, 127 S. Ct. 1955, 1966 (2007) (holding dismissal appropriate “when the allegations in 

a complaint, however true, could not raise a claim of entitlement to relief”); Trudeau v. FTC, 

456 F.3d 178, 193 (D.C. Cir. 2006); Hicks v. Ass’n of Am. Med. Coll., 503 F. Supp. 2d 48, 50-

51 (D.D.C. 2007). Documents or exhibits attached to a complaint may properly be considered 

on a motion to dismiss. In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (“In determining 

whether to dismiss, courts treat documents attached to a complaint as if they are part of the 

complaint.”); Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (noting that 

court may consider on motion to dismiss documents “attached as exhibits or incorporated by 

reference in the complaint”) (citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 

624-25 (D.C. Cir. 1997)). 

3

Case 1:07-cv-02240-RCL-RWR Document 43 Filed 02/11/2008 Page 4 of 13
2. The EC Funding Restriction Is Constitutional As Applied to ECs That Are 

the Functional Equivalent of Express Advocacy 

It is “firmly embedded” in the Supreme Court’s First Amendment jurisprudence that 

corporations and labor unions may constitutionally be prohibited from using their general 

treasuries to fund communications that expressly advocate for or against the election of a 

candidate. McConnell v. FEC, 540 U.S. 93, 203 (2003). In BCRA, Congress broadened this 

prohibition to encompass not just corporate and union express advocacy expenditures (which 

were already prohibited under FECA), but also corporate and union expenditures for 

communications that meet the statutory definition of an EC. See BCRA § 203 (codified as part 

of 2 U.S.C. § 441b). 

Immediately after BCRA was enacted, Citizens United and other organizations filed a 

facial challenge to the constitutionality of the EC funding restriction, arguing that the statute was 

overbroad to the extent that it prohibited corporations from financing non-campaign issue speech 

immediately before an election. The Supreme Court rejected this challenge in McConnell, which 

upheld BCRA § 203 on its face. McConnell, 540 U.S. at 203-09. The Court agreed with the 

plaintiffs that the corporate funding restriction encompassed both campaign advocacy and some 

“issue ads,” but the Court held that the government’s long-recognized and compelling interests in 

regulating corporate-funded express advocacy apply with equal force to the interests in 

regulating corporate-funded speech that is “the functional equivalent of express advocacy.” Id. 

at 205-06. The Court reasoned that, because the EC definition only encompasses 

communications that refer to a specific candidate shortly before an election, the fact that a 

communication meets the statutory criteria “strongly supports” a finding that any given EC is the 

functional equivalent of express advocacy, and, therefore, that the funding restriction’s potential 

“application to pure issue ads” is insubstantial. See id. at 207. Indeed, the Court noted, “[e]ven 

4

Case 1:07-cv-02240-RCL-RWR Document 43 Filed 02/11/2008 Page 5 of 13
if we assumed that BCRA will inhibit some constitutionally protected corporate and union 

speech, that assumption would not justify prohibiting all enforcement of the law.” Id. at 207 

(internal quotation marks omitted). Thus, McConnell held that the EC provision was “amply 

justifie[d],” id. at 208, and the plaintiffs had not “carried their heavy burden” to show the 

funding restriction to be unconstitutional on its face. Id. 

Four years later, in the context of an as-applied challenge to the EC funding restriction, 

the Supreme Court held that the restriction could constitutionally be applied only to ECs that are 

the functional equivalent of express advocacy. See WRTL, 127 S. Ct. at 2664 (“This Court has 

already ruled that BCRA survives strict scrutiny to the extent it regulates express advocacy or its 

functional equivalent. So to the extent the ads in these cases fit this description, the FEC’s 

burden is not onerous; all it need do is point to McConnell and explain why it applies here.”) 

(citing McConnell, 540 U.S. at 206). The controlling opinion in WRTL defined “the functional 

equivalent of express advocacy” as speech that is “susceptible of no reasonable interpretation 

other than as an appeal to vote for or against a specific candidate.” WRTL, 127 S. Ct. at 2667. 

The opinion immediately then listed criteria relevant to the application of this standard and 

explained why the ads at issue in WRTL could be so interpreted: 

Under this test, WRTL’s three ads are plainly not the functional equivalent 

of express advocacy. First, their content is consistent with that of a 

genuine issue ad: The ads focus on a legislative issue, take a position on 

the issue, exhort the public to adopt that position, and urge the public to 

contact public officials with respect to the matter. Second, their content 

lacks indicia of express advocacy: The ads do not mention an election, 

candidacy, political party, or challenger; and they do not take a position on 

a candidate’s character, qualifications, or fitness for office. 

Id. The Commission included these criteria, effectively verbatim, in its regulations 

implementing WRTL. See Electioneering Communications, 72 Fed. Reg. 72,899, 72,914-15 

(Dec. 26, 2007) (to be codified at 11 C.F.R. § 114.15). 

5

Case 1:07-cv-02240-RCL-RWR Document 43 Filed 02/11/2008 Page 6 of 13
In sum, the EC funding restriction is unconstitutional as applied to ECs that are 

susceptible of a reasonable interpretation other than as an appeal to vote for or against a 

candidate, but the restriction is constitutional as applied to ECs that are the functional equivalent 

of express advocacy. 

3. Plaintiff’s Film Is the Functional Equivalent of Express Advocacy 

Count 3 of the Amended Complaint alleges that the EC funding restriction is 

unconstitutional as applied to Hillary: The Movie because “the movie ‘may reasonably be 

interpreted as something other than as an appeal to vote for or against a specific candidate.’” 

(Am. Compl. ¶ 44 (quoting WRTL, 127 S. Ct. at 2670).) However, as this Court has already 

noted, Hillary: The Movie is the functional equivalent of express advocacy. Citizens United v. 

FEC, Civ. No. 07-2240, slip op. at 7-9 (D.D.C. Jan. 15, 2008). 

Plaintiff’s film fails the WRTL standard. See WRTL, 127 S. Ct. at 2667; Citizens United, 

slip op. at 7.1

 First, it “mention[s] an election [or] candidacy”: 

• “[S]he will run on attacking republicans, and being the first woman president — oh 

isn’t that amazing, she’s a woman she can walk and talk.” (Am. Compl. Exh. 2 at 1.) 

• “Hillary Rodham Clinton. Could she become the first female President in the history 

of the United States?” (Id. at 5.) 

• “Hillary Clinton points to her time in the White House as a large part of her 

qualification for the job as President.” (Id.) 

• “Over the past 16 years Hillary Clinton has undoubtedly become one of the most 

divisive figures in America. How this makes her suited to unite the country as the 

next president is troubling to many.” (Id. at 6.) 

• “There are any number of things in the Clinton’s political history worth recalling 

before you go in to potentially vote for a Clinton, in this case a Hillary Clinton.” (Id. 

at 9.) 

 

1

 Plaintiff appears to have conceded this point during briefing on its motion for a 

preliminary injunction. (Pl.’s Mem. in Support of Second Mot. for Prelim. Inj. at 7 (“[T]he 

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 . . . .”).) 

6

Case 1:07-cv-02240-RCL-RWR Document 43 Filed 02/11/2008 Page 7 of 13
• “Hillary’s got an agenda and she’s willing to put up with that to be [P]resident of the 

[U]nited [S]tates, she’s got a to do list when she gets to the White House.” (Id. at 21-

22.) 

• “I’m asking people to look at the record that is undisputed and to come to their own 

conclusions regarding the suitability of Hillary Clinton to acquire the highest office in 

this country.” (Id. at 32.) 

• “As a presidential candidate, Hillary has made other promises that may also prove 

difficult to keep.” (Id. at 39.) 

• “Both Clintons are well aware the war on terror could be [a] key issue in Hillary’s run 

for the presidency.” (Id. at 51-52.) 

• “Sandy Berger was fined, lost his security clearance for 3 years, and disgraced, 

especially in Washington. But he has resurfaced. Reportedly, Berger is now an 

adviser to the presidential campaign of . . . Hillary Rodham Clinton.” (Id. at 57 

(alterations omitted; ellipsis in original).) 

• “I think the American people have a right to as much of a public record as possible 

about Hillary Clinton. Those records should be released before the 2008 elections so 

that we can learn a lot more about exactly how much influence she had in the White 

House, what her positions were in the White House, and how she acted in the White 

House.” (Id. at 60.) 

• “Candidate Clinton claims she is the most experienced.” (Id. at 67.) 

• “It’s worth remembering that a vote for Hillary is a vote to continue 20 years of a 

Bush or a Clinton in the White House.” (Id. at 68.) 

• “Finally, before America decides on our next president, voters should need no 

reminders of . . . what’s at stake — the well being and prosperity of our nation.” (Id. 

at 68–69.) 

Second, Hillary: The Movie “take[s] a position on a candidate’s character, qualifications, 

or fitness for office”:2

• “[S]he is steeped in controversy, steeped in sleaze, that’s why they don’t want us to 

look at her record.” (Id. at 1-2.) 

• “After announcing her bid for the presidency, fellow Democrats including former 

Clinton confidant and Hollywood mogul David Geffen publicly questioned Hillary’s 

integrity and truthfulness.” (Id. at 7.) 

 

2

 Many of the following excerpts also “mention an election [or] candidacy.” 

7

Case 1:07-cv-02240-RCL-RWR Document 43 Filed 02/11/2008 Page 8 of 13
• “So, who is the real Hillary Clinton? Is she a [ ] brilliant trailblazer, poised to make 

history as the first female president, or is she ruthless, cunning, dishonest — willing 

to do anything for power?” (Id. at 8.) 

• “Is Hillary really the most qualified to hit the ground running if elected President? 

After all, she was First Lady for 8 years and now a Senator from New York. 

Referring to her opponents she’s said, quote, ‘there is one job we can’t afford on-thejob training for: that is the job of our next President.’” (Id. at 35-36.) 

• “Hillary says we should elect her president because of her tremendous 

accomplishments in the United States Senate. . . . But is that the legislative gravitas 

and qualifications enough to elect her [P]resident of the [U]nited [S]tates? Is she 

kidding?” (Id. at 36.) 

• “There’s one Hillary who says, ‘I’m gonna bring the troops home right away when 

I’m elected President’ and another Hillary who says, ‘I’m gonna keep troops in Iraq 

indefinitely.’ One of these two women is lying.” (Id. at 47.) 

• “As much as those pardons reveal about Bill, an earlier pardon may have revealed 

even more about Hillary’s character — and her willingness to do anything to get 

elected.” (Id. at 60.) 

• “It[’]s been said and I agree with it that this is the most personal political choice that 

Americans make. They want, they — their personality traits, their — will they 

consider a person that they could trust, that they would like, that they were 

comfortable with, and that’s [where] I think Hillary Clinton as a candidate has great 

defects.” (Id. at 69.) 

• “[I]f she weren’t married to Bill Clinton, what is there that she has accomplished in 

her life-that would lead you to believe that she should become the most powerful 

person in the country?” (Id.) 

• “If she reverts to form, Hillary Clinton will likely be in the future what she has been 

in the past, which is a person, a woman, a politician of the left, and I don’t think that’s 

going to [be] good for the security of the United States.” (Id. at 70.) 

• “I can tell you beyond a shadow of a doubt that uh, the Hillary Clinton that I know is 

not equipped, not qualified to be our commander in chief.” (Id. at 71.) 

• “[W]e must not ever underestimate this woman. We must not ever understate her 

chances of winning. We mustn’t be lolled [sic] into a state of security and 

complacency by the new found moderation that she likes to talk about. And we must 

never forget the fundamental danger that this woman [poses] to every value that we 

hold dear.” (Id. at 71-72.) 

8

Case 1:07-cv-02240-RCL-RWR Document 43 Filed 02/11/2008 Page 9 of 13
• In addition to these oral statements, the film contains multiple visual attacks on 

Senator Clinton’s character — generally in the form of abridged newspaper headlines 

— that are not reflected in the written script. For example, thirty-seven seconds into 

the movie, after a montage of headlines containing the phrase “Mrs. Clinton,” the 

visual zooms in and lingers on the word “perjury” (omitting the remainder of the 

headline). Four seconds later, after a montage of headlines referring to the “First 

Lady,” the visual zooms in and lingers on the word “lies” (again omitting the 

remainder of the headline). 

Finally, Hillary: The Movie fails to qualify for an exemption under WRTL because the 

film “does not focus on legislative issues” or otherwise constitute issue advocacy. Citizens 

United, slip op. at 7-9. The film does not “take a position on [an] issue, exhort the public to 

adopt that position, and urge the public to contact public officials with respect to the matter,” 

WRTL, 127 S. Ct. at 2667, as Plaintiff has already conceded. (See Pl.’s Mem. in Support of 

Second Mot. for Prelim. Inj. at 7 (acknowledging that movie is not “grassroots lobbying activity” 

and includes no call to action other than voting).) The only focuses of the film are Senator 

Clinton’s character and fitness for office and her actions in relation to certain controversies 

during Bill Clinton’s presidency. (See, e.g., Am. Compl. Exh. 2 at 10-35 (discussing, inter alia, 

“travelgate”), 50-67 (discussing, inter alia, Bill Clinton’s presidential pardons).) In the few short 

portions of the film that touch on legislative issues, the film consistently and explicitly ties these 

issues to further critiques of Senator Clinton’s character and fitness for the presidency. (See,

e.g., id. at 46-47 (discussing immigration debate and concluding that “it raised the question can 

you withstand the criticism . . . and if [you’re] gonna whine about people complaining about you, 

that doesn’t suggest presidential stature or character”); id. at 47-49 (discussing Iraq war and 

concluding that Senator Clinton is “not flipping and flopping. [S]he’s lying.”).) The inclusion of 

such issue-based criticisms does not mean that Plaintiff’s movie is genuine issue advocacy. See 

WRTL, 127 S. Ct. at 2667 n.6 (contrasting issue ads in that case with hypothetical ad that 

“condemned [the candidate]’s record on a particular issue” in the McConnell decision). 

9

Case 1:07-cv-02240-RCL-RWR Document 43 Filed 02/11/2008 Page 10 of 13
Moreover, the overwhelming majority of the movie’s advocacy criticizes the character of 

Senator Clinton without reference to any issues at all. Plaintiff’s complaint is thus incorrect as a 

matter of law that Hillary: The Movie is an “issue-advocacy film” (Am. Compl. ¶ 14), as the 

criticisms in the movie are not “issue advocacy” as WRTL used that term. See WRTL, 127 S. Ct. 

at 2667 (describing “genuine issue ad[s]”). The only advocacy in Plaintiff’s film is its opposition 

to the election of Senator Clinton to the presidency. 

Thus, because Hillary: The Movie is nothing but an extensive critique of Senator 

Clinton’s “character, qualifications, and fitness for office” and lacks indicia of genuine issue 

advocacy, the film is, in the words and analysis of WRTL itself, susceptible of no reasonable 

interpretation other than as an appeal to vote against her. Citizens United, slip op. at 8. It is, in 

short, the functional equivalent of express advocacy, to which the EC funding restrictions may 

constitutionally be applied. Id. at 9 (citing McConnell). Accordingly, Count 3 of the Amended 

Complaint fails as a matter of law. 

B. The Court Lacks Subject Matter Jurisdiction Over Count 4 

1. Standard of Review Under Rule 12(b)(1) 

“Article III of the Constitution limits federal courts to the adjudication of actual, ongoing 

controversies between litigants.” Deakins v. Monaghan, 484 U.S. 193, 199 (1988). An “‘actual 

controversy must be extant at all stages of review, not merely at the time the complaint is filed.’” 

Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser v. Newkirk,

422 U.S. 395, 401 (1975)). If a claim becomes moot, no actual controversy exists for Article III 

purposes. Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983) (“Federal courts lack 

jurisdiction to decide moot cases because their constitutional authority extends only to actual 

cases or controversies.”); Spirit of the Sage Council v. Norton, 411 F.3d 225, 230 (D.C. Cir. 

10

Case 1:07-cv-02240-RCL-RWR Document 43 Filed 02/11/2008 Page 11 of 13
2005); Matthews v. District of Columbia, 521 F. Supp. 2d 79, 81-82 (D.D.C. 2007) (quoting Iron 

Arrow); Ctr. for Biological Diversity v. Kempthorne, 498 F. Supp. 2d 293, 296 (D.D.C. 2007) 

(“The court will lack subject matter jurisdiction if the defendant demonstrates that the plaintiff’s 

claim is moot.”) (citing DeFunis v. Odegaard, 416 U.S. 312, 316 (1974)). 

A claim challenging actual or planned government action becomes moot when the 

government indicates that it will not take the action regarding which the plaintiff complains. 

Webster v. Reproductive Health Servs., 492 U.S. 490, 512 (1989) (holding that private plaintiffs’ 

constitutional challenge to anti-abortion statute was moot where government stated it would 

enforce statute only as to government employees, not private parties); Frank v. Minn. Newspaper 

Ass’n, Inc., 490 U.S. 225, 227 (1989) (holding that challenge to application of statute was moot 

where government conceded that statute did not reach challenged application); DeFunis, 416 

U.S. at 316-17 (holding that plaintiff’s suit seeking admission to state law school was moot 

where plaintiff had been admitted and government promised not to revoke admission regardless 

of outcome of case); see also Comm. in Solidarity with People of El Salvador v. Sessions, 929 

F.2d 742, 745 (D.C. Cir. 1991) (finding dismissal as moot proper where government took action 

that plaintiff sought to compel while case was pending); Ctr. for Biological Diversity, 498 F. 

Supp. 2d at 297 (same); Pennington v. U.S. Dept. of Justice, Civ. No. 06-1808, 2007 WL 

2492745, at *1 (D.D.C. Aug. 30, 2007) (same). 

2. Count 4 Is Moot 

Count 4 of the Amended Complaint alleges that the EC funding restriction is 

unconstitutional as applied to “Questions” because “the ad ‘may reasonably be interpreted as 

something other than as an appeal to vote for or against a specific candidate.’” (Am. Compl. 

¶ 44 (quoting WRTL, 127 S. Ct. at 2670).) The Commission agrees that “Questions” is 

11

Case 1:07-cv-02240-RCL-RWR Document 43 Filed 02/11/2008 Page 12 of 13
12

susceptible of a reasonable interpretation as an advertisement that promotes a commercial 

transaction. Therefore, under WRTL, the Commission may not constitutionally enforce — and 

will not attempt to enforce — the EC funding restriction as to “Questions.” This disposes of the 

entire as-applied challenge presented in Count 4; no issues therein remain to be adjudicated. 

Accordingly, there is no actual case or controversy before this Court regarding the financing of 

“Questions,” and the Court lacks jurisdiction over the subject matter of Count 4. See Citizens 

United, slip op. at 5 n.9 (denying Plaintiff’s motion for preliminary injunction regarding 

“Questions” as moot). 

IV. CONCLUSION 

For the foregoing reasons, the Commission respectfully requests that the Court dismiss 

Counts 3 and 4 of the Amended Complaint. 

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: February 11, 2008 (202) 694-1650 

 

Case 1:07-cv-02240-RCL-RWR Document 43 Filed 02/11/2008 Page 13 of 13