UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

CITIZENS UNITED, ) 

 ) 

 Plaintiff, ) 

 ) 

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

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY MEMORANDUM 

 ) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY MEMORANDUM 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

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 

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

Attorney 

COUNSEL FOR DEFENDANT 

 FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

July 11, 2008 (202) 694-1650 

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TABLE OF CONTENTS 

I. THE EC DISCLOSURE REQUIREMENTS ARE SUBSTANTIALLY RELATED 

TO IMPORTANT GOVERNMENT INTERESTS............................................................ 1 

A. Disclosure Requirements Are Subject to Intermediate Scrutiny ............................ 1 

B. Important Government Interests Support EC Disclosure ....................................... 7 

C. The EC Disclosure Requirements Impose Minimal Constitutional Burdens ....... 12 

II. THE EC DISCLAIMER REQUIREMENTS ARE CONSTITUTIONAL....................... 14 

III. PLAINTIFF’S FILM IS THE FUNCTIONAL EQUIVALENT OF EXPRESS 

ADVOCACY.................................................................................................................... 18 

A. No Specific “Words of Advocacy” Are Required for a Communication 

To Be the Functional Equivalent of Express Advocacy ....................................... 18 

B. The Duration of Plaintiff’s Communication Is Irrelevant..................................... 19 

IV. CONCLUSION................................................................................................................. 21 

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TABLE OF AUTHORITIES 

Cases 

Alaska Right to Life Comm. v. Miles, 441 F.3d 773 (9th Cir. 2006) (“ARTL”)...............................4 

Bates v. Little Rock, 361 U.S. 516 (1960)........................................................................................3 

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999) (“ACLF”).................. 3-4, 6 

Buckley v. Valeo, 424 U.S. 1 (1976).....................................................................2-3, 5, 7-9, 11, 13 

Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir. 2003)................................... 4-5, 9 

Cal. Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172 (9th Cir. 2007)....................................4, 9 

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980)................14 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) ................................................ 8-9 

Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008)...................................................... 5-6 

Comm’n on Indep. Colls. & Univs. v. N.Y. Temp. State Comm’n on Regulation of Lobbying, 

534 F. Supp. 489 (N.D.N.Y. 1982)....................................................................................10 

Davis v. FEC, No. 07-320, 2008 WL 2520527 (U.S. June 26, 2008) ............................... 2-3, 5, 13 

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ............................................................................19 

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”) ..........................4, 9 

FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (“WRTL”).............5-6, 11, 13, 18-20 

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978)........................................................ 8-9 

Gibson v. Florida Legislative Comm., 372 U.S. 539 (1963) ...........................................................3 

Majors v. Abell, 361 F.3d 349 (7th Cir. 2004)...........................................................................6, 15 

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

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003)............................................. 13, 16, 19-20 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)................................................... 6-7, 13 

Meese v. Keene, 481 U.S. 465 (1987)............................................................................................17 

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NAACP v. Alabama, 357 U.S. 449 (1958).......................................................................................3 

Nat’l Ass’n of Mfrs. v. Taylor, 549 F. Supp. 2d 68 (D.D.C. 2008)................................................11 

Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104 (2d Cir. 2001).............................................. 15-16 

N.C. Right to Life Fund for Indep. Political Expenditures v. Leake, 524 F.3d 427 

(4th Cir. 2008)......................................................................................................................5 

United States v. Harriss, 347 U.S. 612 (1954) .......................................................................... 9-10 

Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184 (2008)............................17 

Zauderer v. Office of Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S. 626 (1985) .................14 

Statutes and Regulations 

2 U.S.C. § 434................................................................................................................................16 

2 U.S.C. § 434(f)..............................................................................................................................5 

2 U.S.C. § 434(f)(3)(A)(i)........................................................................................................ 19-20 

2 U.S.C. § 438(a)(4).......................................................................................................................12 

2 U.S.C. § 441d(a)(3)...............................................................................................................14, 16 

2 U.S.C. § 441d(d)(2) ....................................................................................................................16 

11 C.F.R. § 104.20(c)(7)..................................................................................................................5 

11 C.F.R. § 104.20(c)(9)..................................................................................................................5 

11 C.F.R. § 110.11(b)(3)..........................................................................................................14, 16 

11 C.F.R. § 110.11(c)(4)................................................................................................................16 

Bipartisan Campaign Reform Act, Pub. L. No. 107-155 (“BCRA”)....................1-2, 4-5, 7, 11, 15 

Cal. Gov’t Code § 84211 ............................................................................................................. 4-5 

Federal Election Campaign Act (“FECA”)............................................................ 3, 8-9, 13, 16, 19 

Other Authorities 

154 Cong. Rec. S6006 (daily ed. June 24, 2008).............................................................................1 

Fed. R. Civ. P. 56(c) ................................................................................................................ 16-17 

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H.R. Rep. No. 107-131, pt. 1 (2001)..............................................................................................15 

Pew Research Center, On the Campaign Trail: Media and Public Focused Mainly on 

Democrats (July 3, 2008), http://pewresearch.org/pubs/887/news-interest-oil-prices ......14 

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Defendant Federal Election Commission (“Commission”) submits this reply 

memorandum in further support of its Motion for Summary Judgment. Plaintiff seeks to return 

the nation to the state of affairs that existed before Congress passed and the Supreme Court 

upheld the Bipartisan Campaign Reform Act, Pub. L. No. 107-155 (“BCRA”). Prior to BCRA, 

corporations ran advertisements attacking candidates for federal office without disclosing either 

their own identities or the identities of those who financed the advertising. In upholding 

BCRA’s disclosure requirements for electioneering communications (“ECs”), the Supreme Court 

in McConnell v. FEC, 540 U.S. 93 (2003), rejected such corporations’ attempts to “hide 

themselves” and held that important government interests in providing information to the public 

and enforcing corporate funding restrictions “amply” justified the disclosure provisions. These 

government interests apply to all ECs, including Plaintiff’s communications, particularly in light 

of the minimal burdens that EC disclosure imposes. Thus, the government’s and the public’s 

interests in disclosure clearly outweigh any burdens on Plaintiff, and the EC disclosure 

requirements are constitutional. And because Plaintiff’s film is susceptible of no reasonable 

interpretation other than as an appeal to vote against Senator Hillary Clinton, BCRA’s corporate 

funding restriction is constitutional as applied to that film.1

I. THE EC DISCLOSURE REQUIREMENTS ARE SUBSTANTIALLY RELATED 

TO IMPORTANT GOVERNMENT INTERESTS 

A. Disclosure Requirements Are Subject to Intermediate Scrutiny 

As the Commission discussed in its opening brief, the constitutional standard relevant 

here is “exacting scrutiny,” which, in the context of First Amendment challenges to disclosure 

requirements, is intermediate scrutiny: The disclosure requirements must be substantially related 

 

1

 The Commission reiterates and incorporates by reference herein the facts set forth in the 

Commission’s Statement of Material Facts as to Which There Is No Genuine Dispute (“Def.’s 

Facts”), except to add that the Commission’s quorum has been restored. See 154 Cong. Rec. 

S6006 (daily ed. June 24, 2008). 

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to important government interests. (Def.’s Mem. at 11-14.)2

 McConnell applied this standard 

specifically to the EC disclosure statutes at issue here, upholding them in light of “important 

state interests.” McConnell, 540 U.S. at 196; see infra Part I.B. Plaintiff provides no contrary 

analysis of McConnell’s holding on this point. Furthermore, less than one month ago, the 

Supreme Court reaffirmed this standard, reiterating its prior holdings that “there must be ‘a 

“relevant correlation” or “substantial relation” between the governmental interest and the 

information required to be disclosed,’ and the governmental interest ‘must survive exacting 

scrutiny.’” Davis v. FEC, No. 07-320, 2008 WL 2520527, at *12 (U.S. June 26, 2008) (quoting 

Buckley v. Valeo, 424 U.S. 1, 64 (1976)). This is identical to the meaning of the “exacting 

scrutiny” test that the Commission has argued should apply throughout this case. (Def.’s First 

P.I. Opp. at 11 (“[T]he compelled disclosure [must] bear a ‘substantial relation’ to an important 

government interest . . . .”); Def.’s Mem. at 11 (same); Def.’s Second P.I. Opp. at 16 (“BCRA’s 

disclosure requirements are constitutional as to all ECs because the requirements substantially 

relate to the government’s important interests . . . .”).) Thus, although the standard was already 

clear before Davis was decided, there is now no reasonable basis on which to argue that strict 

scrutiny applies to disclosure requirements. 

Nonetheless, Plaintiff claims that Davis actually distinguished between what Plaintiff 

calls “the relevant-and-substantial-relation requirement” and “exacting scrutiny” by placing the 

word “and” between these phrases. (Pl.’s Resp. at 22.) Plaintiff makes the same argument 

 

2

 The Commission cites to the filings in this case as follows: Def.’s Mem. of L. in Supp. of 

Its Mot. for Summ. J. and in Opp. to Pl.’s Mot. for Summ. J. (Docket No. 55) (“Def.’s Mem.”); 

Pl.’s Mem. in Supp. of Summ. J. Mot. (Docket No. 52) (“Pl.’s Mem.”); Pl.’s Statement of 

Undisputed Material Facts (Docket No. 52) (“Pl.’s Facts”); Pl.’s Mem. Opp. FEC’s Summ. J. 

Mot. & Replying on [Its] Own Summ. J. Mot. (Docket No. 61) (“Pl.’s Resp.”); Def.’s Mem. in 

Opp. to Pl.’s Mot. for Prelim. Inj. (Docket No. 18) (“Def.’s First P.I. Opp.”); Def.’s Mem. in 

Opp. to Pl.’s Second Mot. for Prelim. Inj. (Docket No. 33) (“Def.’s Second P.I. Opp.”). 

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regarding Buckley itself (Pl.’s Resp. at 4-5, 28 n.21), based on that opinion’s summary of the 

Court’s prior holdings: “[W]e have required that the subordinating interests of the State must 

survive exacting scrutiny. We also have insisted that there be a ‘relevant correlation’ or 

‘substantial relation’ between the governmental interest and the information required to be 

disclosed.” Buckley, 424 U.S. at 64 (emphasis added). But the “and” in Davis and the “also” in 

Buckley cannot bear the weight that Plaintiff places on them. The relevant sentences in Buckley

synthesize several earlier cases in which the Court had analyzed the constitutionality of 

disclosure requirements, drawing together the “exacting scrutiny” of NAACP v. Alabama, 357 

U.S. 449, 463 (1958), the “relevant correlation” of Bates v. Little Rock, 361 U.S. 516, 524 

(1960), and the “substantial relation” of Gibson v. Florida Legislative Comm., 372 U.S. 539, 546 

(1963)). See Buckley, 424 U.S. at 64. In such a context, the natural reading of the word “also” is 

that the Buckley Court was merely indicating its references to multiple prior decisions in crafting 

its analytical framework. Davis, in turn, simply condenses Buckley’s two sentences into a single 

sentence comprising two independent clauses. See Davis, 2008 WL 2520527, at *12 (quoting 

Buckley, 424 U.S. at 64). Plaintiff cites no caselaw supporting its reading of these clauses as two 

distinct requirements. There is, however, a wealth of precedent interpreting exacting scrutiny as 

a “substantial relation” test, which is the standard applicable here. (See Def.’s Mem. at 11-12 

(citing, inter alia, Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 202 (1999) 

(“ACLF”) (“In [Buckley v. Valeo], we stated that ‘exacting scrutiny’ is necessary when 

compelled disclosure of campaign-related payments is at issue. We nevertheless upheld, as 

substantially related to important governmental interests, the recordkeeping, reporting, and 

disclosure provisions of the Federal Election Campaign Act [“FECA”].”).) 

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In addition to attempting to graft a new test onto the exacting scrutiny analysis, Plaintiff 

cites California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir. 2003), and Justice 

Thomas’s opinion concurring in the judgment in ACLF for the proposition that strict scrutiny is 

warranted. (Pl.’s Resp. at 25, 29.) Justice Thomas’s concurrence, which was joined by no other 

Justice, is of course not controlling. Getman did apply strict scrutiny, but, as the cases we have 

cited previously demonstrate, the great weight of authority is to the contrary. Indeed, the Ninth 

Circuit itself has observed that Getman’s application of strict scrutiny was questionable under 

McConnell. Cal. Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172, 1177 & n.5 (9th Cir. 2007) 

(noting, on appeal after remand, that Getman applied strict scrutiny despite “a lack of clarity 

regarding the appropriate level of scrutiny,” and that McConnell “may have changed the legal 

landscape,” but applying strict scrutiny “because we are bound by the ‘law of the case’”).3

 

Furthermore, Getman involved a state statute that required the disclosing political committees to 

file periodic reports disclosing nearly all of their income and disbursements, regardless of source 

or purpose — a significantly more burdensome requirement than any imposed by BCRA’s EC 

disclosure provisions. See Randolph, 507 F.3d at 1187-89 (distinguishing between political 

committee reporting and reporting regarding source and amount of specific disbursements); see 

also FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 253-54, 262 (1986) (“MCFL”) 

(finding political committee reporting requirements burdensome as-applied but noting continued 

application of independent expenditure reporting requirements); compare Cal. Gov’t Code 

 

3

 As Plaintiff notes (Pl.’s Resp. at 29), the Ninth Circuit “assume[d] without deciding” that 

strict scrutiny applied in Alaska Right to Life Comm. v. Miles, 441 F.3d 773, 788 (9th Cir. 2006) 

(“ARTL”), but this was because the Court was uncertain regarding whether McConnell applied to 

the case, and because the statutes were constitutional under any standard of scrutiny. ARTL, 441 

F.3d at 787-88; see also Cal. Pro-Life Council v. Randolph, 507 F.3d at 1177 n.5 (discussing 

scrutiny applied in ARTL). The ARTL court nonetheless made clear that “‘[e]xacting scrutiny,’ in 

the words of Buckley, required that a ‘substantial relation’ be shown ‘between the governmental 

interest and the information required to be disclosed.’” ARTL, 441 F.3d at 787. 

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§ 84211 with 2 U.S.C. § 434(f) and 11 C.F.R. § 104.20(c)(7),(9). In any event, as the Fourth 

Circuit has plainly stated, in a decision post-dating Getman, “having a substantial relation to an 

important state interest is all that is required by Buckley and McConnell.” N.C. Right to Life 

Fund for Indep. Political Expenditures v. Leake, 524 F.3d 427, 440 (4th Cir. 2008). 

Plaintiff makes three additional arguments for the application of strict scrutiny, none of 

which has merit. Plaintiff’s first argument is that the Court in FEC v. Wisconsin Right to Life, 

Inc., 127 S. Ct. 2652 (2007) (“WRTL”) applied strict scrutiny to “regulation” of ECs, and, 

according to Plaintiff, such “regulation” includes disclosure. (Pl.’s Resp. at 25, 27 & n.20.) 

However, as the Commission has discussed previously and this Court preliminarily held, 

disclosure was not at issue in WRTL. See Citizens United v. FEC, 530 F. Supp. 2d 274, 280-81 

(D.D.C. 2008); see also Def.’s Mem. at 8-10 & n.5 (noting that WRTL plaintiff disclaimed any 

challenge to disclosure requirements). It is, therefore, highly implausible that the word 

“regulation” in WRTL tacitly decided a disclosure issue that was not before the Court. Citizens 

United, 530 F. Supp. 2d at 280-81 (“Under Citizens’ reading of WRTL, anything that is not 

[subject to the EC funding restriction] cannot be constitutionally regulated by Congress under 

BCRA. We do not believe WRTL went so far.”); see also Def.’s Mem. at 10 (explaining that 

WRTL turned, in part, on whether EC funding restriction was a “complete ban” or a 

“regulation”). Thus, WRTL is simply irrelevant to the question of what scrutiny to apply to the 

EC disclosure provisions.4

Second, Plaintiff argues that, in Supreme Court opinions, “[c]onfusing synonyms are 

often used without any intent to change the analysis,” and “[s]o the fact that McConnell spoke of 

 

4

 In addition to misinterpreting WRTL as applying strict scrutiny to disclosure, Plaintiff 

asserts that WRTL “is the latest, and controlling, word on the subject.” (Pl.’s Resp. at 30.) This 

is inaccurate; Davis, which applied intermediate scrutiny, is the “latest word” on the subject of 

disclosure. See supra pp. 2-3. 

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‘important state interests’ instead of ‘compelling state interests’ in upholding the electioneering 

communication reporting and disclaimer requirements facially cannot alter WRTL II’s 

subsequent statement of the law.” (Pl.’s Resp. at 27-28.) Because this argument is premised on 

the same misinterpretation of WRTL discussed above, it must fail. In addition, Plaintiff’s attempt 

to conflate intermediate scrutiny with strict scrutiny — on the grounds that constitutional tests 

sometimes use “confusing” terminology — is contrary to a fundamental legal principle: The 

Supreme Court must be presumed to mean what it says, unless and until it revisits its own 

opinions. See Citizens United, 530 F. Supp. 2d at 278. 

Finally, Plaintiff cites McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995), for the 

proposition that the EC disclaimer requirements are subject to strict scrutiny. (Pl.’s Resp. at 23-

24.) But McIntyre presented a unique situation thoroughly distinguishable from the disclaimers 

in the instant case.5

 Indeed, McIntyre expressly limited its holding to “leaflets of the kind Mrs. 

McIntyre distributed” and disclaimed any application to “communications uttered over the 

broadcasting facilities of any radio or television station.” McIntyre, 514 U.S. at 338 n.3. As the 

Supreme Court subsequently explained, the crucial aspect of McIntyre was that the plaintiff was 

an individual distributing a pamphlet by hand to other individuals: It was “a one-on-one 

communication.” ACLF, 525 U.S. at 199. Citizens United’s communications, in contrast, are 

televised (not in-person), and they are distributed by an organization (not an individual). 

“Several cases, signally McIntyre itself, expressly or implicitly contrast the fragility of the small 

independent participant in political campaigns with large corporations or other organizations.” 

Majors v. Abell, 361 F.3d 349, 355 (7th Cir. 2004) (citing, inter alia, ACLF, and upholding 

disclaimer statute). Thus, because Plaintiff’s communications lack the determinative 

 

5

 The Commission discussed in its opening brief why McIntyre is inapplicable to the EC 

reporting requirements. (Def.’s Mem. at 13-14.) 

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characteristics of those in McIntyre, Plaintiff’s as-applied challenge to the EC disclaimer 

requirements should be evaluated under the same standard as the remainder of the disclosure 

requirements. See McConnell, 540 U.S. at 231 (upholding disclaimer provisions in light of 

“important governmental interest”); infra Part II (analyzing constitutionality of EC disclaimer 

provisions). 

B. Important Government Interests Support EC Disclosure 

The Commission identified in its opening brief two important government interests 

served by EC disclosure: (1) providing information to the public, and (2) facilitating 

enforcement of the EC funding restrictions. (Def.’s Mem. at 18-25.) Plaintiff does not respond 

to the Commission’s enforcement interest,6

 which alone is sufficient to warrant this Court’s 

upholding the application of the EC disclosure provisions to all ECs, including those exempt 

from the BCRA’s corporate financing restriction (“WRTL ads”). (See id. at 22-25.) 

As to the interest in providing information regarding ECs to the public, Plaintiff does not 

explain how depriving the public of such information would further First Amendment objectives. 

See McConnell, 540 U.S. at 197 (upholding EC disclosure in light of “First Amendment interests 

of individual citizens seeking to make informed choices in the political marketplace” (internal 

quotation marks omitted)). Instead, Plaintiff asserts that this interest only applies to 

communications that are “unambiguously campaign related.” (See Pl.’s Resp. at 1-21, 38-39.) 

The Commission has discussed at length why Plaintiff’s argument is manifestly inconsistent with 

Supreme Court caselaw in a number of areas, including not only ECs themselves, but also other 

 

6

 Plaintiff states that the informational and enforcement interests identified in Buckley

regarding campaign contributions do not apply here. (Pl.’s Resp. at 32-33.) This does not 

respond to the Commission’s argument; the Commission has never asserted that its interests in 

enforcing limits on direct contributions to candidates or providing information about candidate 

contributions apply to disclosure of WRTL advertisements. (See Def.’s Mem. at 18-25 

(discussing Commission’s interests in EC disclosure).) 

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First Amendment–protected activities such as ballot-initiative advocacy and lobbying. (See 

Def.’s Mem. at 14-18.) Yet Plaintiff now claims that even in these areas — indeed, in all

mandatory disclosure contexts — the government’s informational interest is limited to disclosure 

regarding “unambiguous” advocacy for or against some person or topic. (See Pl.’s Mem. at 13-

17.) This novel argument lacks merit. 

Plaintiff derives its proposed restriction from Buckley, where the Court construed 

particular statutory language, to avoid problems of vagueness, as applying only to 

“communications that in express terms advocate the election or defeat of a clearly identified 

candidate for federal office.” Buckley, 424 U.S. at 44. In McConnell (which Plaintiff neglects to 

discuss in this context), the Court made absolutely clear that Buckley’s narrowing was not a 

constitutional limit; it “was the product of statutory interpretation rather than a constitutional 

command.” McConnell, 540 U.S. at 191-92. Thus, the very premise of Plaintiff’s argument — 

i.e., that Buckley’s statutory construction established a constitutional requirement that the EC 

statutes also must meet — has been conclusively rejected by the Supreme Court. 

Despite the lack of foundation for its argument in the FECA context, Plaintiff expands its 

“unambiguously campaign related” argument to other areas of protected speech in which the 

Supreme Court has upheld disclosure requirements. Disclosure related to ballot initiatives, 

according to Plaintiff, must be “unambiguously related to the ballot-initiative campaign,” and 

disclosure regarding lobbying must be unambiguously related to lobbying. (Pl.’s Resp. at 14, 

17.) For the former proposition, Plaintiff cites First Nat’l Bank of Boston v. Bellotti, 435 U.S. 

765 (1978), and Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981), arguing that 

they must have applied Buckley’s (non-existent) constitutional requirement sub silentio because 

each case included construction of a statute that contained a phrase that Buckley had construed in 

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the context of FECA. (Pl.’s Resp. at 16-17.)7

 There is no logic to this argument. Buckley’s 

statutory construction of “contributions” to “committees” under FECA simply had nothing to do 

with the “contributions” to state “committees” under the statute in Citizens Against Rent Control, 

where the Court employed no narrowing construction at all, much less the FECA-specific 

construction applied in Buckley. See Citizens Against Rent Control, 454 U.S. at 298-99 

(analyzing statute without reference to Buckley’s construction of FECA). Buckley’s construction 

of FECA’s “influencing” requirement was likewise completely unrelated to the “influencing” 

provision in Bellotti’s state statute. Bellotti, 435 U.S. at 775-95 (conducting constitutional 

analysis without reference to Buckley’s statutory construction); see also Def.’s Mem. at 16-17. 

Thus, Plaintiff’s unsupported importation of its faulty interpretation of Buckley into later cases is 

nothing more than an attempt to lift that interpretation to legitimacy by its bootstraps. The 

proper application of Bellotti and Citizens Against Rent Control to this case is in their 

recognition of the importance and constitutionality of disclosure in situations where the 

disclosures relate to funds constitutionally exempt from substantive limitations. (Def.’s Mem. at 

15-17.) 

As to lobbying, Plaintiff makes two other flawed arguments. First, Plaintiff claims that 

United States v. Harriss, 347 U.S. 612, 625 (1954), the seminal case upholding lobbying 

 

7

 Plaintiff also cites (Pl.’s Resp. at 14-16) Getman, which applied a narrow-tailoring 

analysis to disclosure statutes. See 328 F.3d at 1101. The court’s analysis, however, was 

premised on the application of strict scrutiny, which, as discussed above, has been called into 

question by the Ninth Circuit itself and not followed elsewhere. See supra Part I.A; Cal. ProLife Council v. Randolph, 507 F.3d at 1177 & n.5. As for Plaintiff’s extended discussion (Pl.’s 

Resp. at 18-21) of MCFL, the Commission respectfully refers the Court to the Commission’s 

opening brief, which (a) discussed MCFL’s recognition of the government’s enforcement interest 

in the context of disclosure regarding communications that were constitutionally exempt from 

funding regulations, and (b) explained that, because the communications at issue in MCFL

contained express advocacy, the case had no occasion to consider or impose an “unambiguously 

campaign related” requirement on all disclosure regimes. (See Def.’s Mem. at 15-17, 23-24.) 

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10

disclosure requirements, adopted a constitutionally mandated statutory construction similar to the 

Buckley construction from which Plaintiff draws its “unambiguously campaign related” 

requirement. (Pl.’s Resp. at 17 n.15.) But Harriss did not do so; the Court in that case found 

that the text of the statute itself, along with its legislative history, pointed to a construction of the 

statute that was not impermissibly vague. See Harriss, 347 U.S. at 620-23 (“It is . . . clear that 

Congress would have intended the Act to operate on [a] narrower basis, even if a broader 

application . . . were not permissible.”). Thus, no constitutional narrowing was required, and 

there is no merit to Plaintiff’s claim that the Court applied a constitutional requirement that 

lobbying disclosure must be unambiguously related to direct lobbying. Indeed, numerous 

subsequent decisions have interpreted Harriss as recognizing the governmental interest in 

providing information to the public about those attempting to influence government policy. (See

Def.’s Mem. at 21 & n.13 (collecting cases).) 

This governmental interest gives rise to Plaintiff’s second argument, which is that the 

Commission cannot claim to have a disclosure interest “any time a speaker attempts to persuade 

the public.” (See Pl.’s Resp. at 11.) Plaintiff’s hyperbole misunderstands Harriss and its 

progeny, which establish that the government is constitutionally permitted to require those 

engaging in non-campaign issue advocacy to disclose who they are and who is funding their 

operations, so that the public may know “the sources of pressure on government officials, thus 

better enabling the public to assess their performance.” Comm’n on Indep. Colls. & Univs. v. 

N.Y. Temp. State Comm’n on Regulation of Lobbying, 534 F. Supp. 489, 494-95 (N.D.N.Y. 

1982). This is not a constitutional “line” created by the Commission (Pl.’s Resp. at 12-13); it is 

the law of the land, as recognized by federal and state courts throughout the country, and fully 

applicable here. (See Def.’s Mem. at 21 & n.13.) 

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11

Plaintiff’s final argument against the Commission’s interest in providing information to 

the public is that the “Federal Election Commission” cannot have an interest under the “Federal 

Election Campaign Act” in disclosure of communications that are not unambiguously related to 

an “election.” (Pl.’s Resp. at 10-12 & n.10, 17.) ECs exempt from the corporate funding 

restriction under WRTL, however, are not necessarily unrelated to an election. Indeed, the EC 

provisions only come into play when broadcast communications clearly identify a candidate in 

the immediate pre-election timeframe, WRTL, 127 S. Ct. at 2669 n.7 (“[K]eep in mind that this 

test is only triggered if the speech meets the brightline requirements of BCRA § 203 in the first 

place.”), and the “‘distinction between discussion of issues and candidates and advocacy of 

election or defeat of candidates may often dissolve in practical application.’” WRTL, 127 S. Ct. 

at 2669 (quoting Buckley, 424 U.S. at 42); see also McConnell, 540 U.S. at 193 (“[A]lthough . . . 

advertisements do not urge the viewer to vote for or against a candidate in so many words, they 

are no less clearly intended to influence the election.”). When the Court in WRTL acknowledged 

that elements of issue advocacy and electoral advocacy could exist in the same message, it did 

not suggest that the First Amendment prohibited disclosure about such messages or that there 

was no public interest in learning about their funding. See WRTL, 127 S. Ct. at 2667. Thus, 

Plaintiff’s request for relief as to all WRTL ads (see Am. Compl. ¶¶ 35(a), 36(a)) is contrary to 

Congress’s interest in protecting the “First Amendment interests of individual citizens seeking to 

make informed choices in the political marketplace,” McConnell, 540 U.S. at 197 (internal 

quotation marks omitted), by helping “the public . . . . gain[ ] access to the very information 

Congress sought to have revealed.” Nat’l Ass’n of Mfrs. v. Taylor, 549 F. Supp. 2d 68, 77 

(D.D.C. 2008), appeal docketed, No. 08-5085 (D.C. Cir.) (denying preliminary injunction 

against enforcement of lobbying disclosure statute). Congress has assigned to the Commission 

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the duty of providing information to the public regarding all ECs, see 2 U.S.C. § 438(a)(4) 

(requiring Commission to make all filings publicly available within forty-eight hours of receipt), 

and Plaintiff has provided no legally tenable argument refuting the importance of this 

governmental interest. 

In sum, the Commission’s unrebutted enforcement interest and its interest in providing 

information to the public are important and substantially related to disclosure regarding ECs. 

These interests are not limited to unambiguously campaign-related communications, but rather 

apply in full to all communications that meet the statutory definition of an EC. 

C. The EC Disclosure Requirements Impose Minimal Constitutional Burdens 

As the Supreme Court has noted, the EC disclosure requirements “do not prevent anyone 

from speaking.” McConnell, 540 U.S. at 201 (internal quotation marks and alteration omitted). 

Accordingly, any First Amendment burden arising from the requirements must be a second-hand 

burden related to unwillingness of the disclosing party to identify itself or its donors. The 

Commission has acknowledged that such a burden may rise to a constitutionally significant level 

in cases where the disclosure will cause the disclosing party to be subject to “threats, harassment, 

and reprisals.” (Def.’s Mem. at 25-27 (quoting McConnell, 540 U.S. at 198-99).) Plaintiff, 

however, now disavows any allegation that its donors will be subject to such harassment. (Pl.’s 

Resp. at 34-35.)8 This concession ends the case, for, as far as the Commission is aware, no court 

 

8

 Its concession notwithstanding, Plaintiff has hedged its bets throughout this case by 

referring to some “retaliation” below the threshold recognized by the Supreme Court, repeatedly 

claiming that “[o]ne of the chief concerns with the Reporting Requirement is the disclosure of 

donors who may then be subject to various forms of retaliation by political opponents.” (Pl.’s 

Facts ¶ 35; Pl.’s Mem. in Supp. of Prelim. Inj. Mot. at 8; Am. Compl. ¶ 23.) As recently as its 

opening summary judgment brief, Plaintiff stated that “Citizens has . . . affirmed its reasonable 

belief that . . . retaliation is a concern . . . .” (Pl.’s Mem. at 28; see also id. (discussing evidence 

of retaliation submitted by McConnell plaintiffs); Pl.’s Statement of Material Issues & 

Objections to Def.’s Statement of Undisputed Facts ¶ 28 (alleging that Plaintiff “ha[s] prominent 

political opponents in influential positions”).) 

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has ever sustained an as-applied challenge to a facially valid disclosure statute on any basis other 

than threats, harassment, and reprisals. 

Lacking any such basis for its claim, Plaintiff argues that disclosure is per se an 

unconstitutional burden. (Pl.’s Resp. at 22, 35.) In support, Plaintiff cites Buckley’s statement 

that “compelled disclosure, in itself, can seriously infringe on privacy of association and belief 

guaranteed by the First Amendment.” Buckley, 424 U.S. at 64; Davis, 2008 WL 2520527, at *12 

(quoting Buckley).9

 Plaintiff interprets this statement as holding that “compelled disclosure in 

this candidate election campaign context is a per se burden on First Amendment privacy rights.” 

(Pl.’s Resp. at 22 (emphasis added).) Neither Buckley nor Davis, however, says any such thing; 

each case says that disclosure “can” be a burden. In fact, Buckley immediately followed this 

statement by analyzing whether the allegations of burden were supported by evidence showing a 

“reasonable probability that the compelled disclosure . . . will subject [the plaintiffs] to threats, 

harassment, or reprisals.” See Buckley, 424 U.S. at 64-74 (quotation at 74). Finding the 

evidence insufficient to demonstrate such a probability, Buckley upheld FECA’s disclosure 

provisions. Id. at 74. The McConnell Court employed the same mode of analysis and arrived at 

the same conclusion. See McConnell, 540 U.S. at 197-99; see also McConnell v. FEC, 251 F. 

Supp. 2d 176, 246-49 (D.D.C. 2003) (per curiam). In Davis, the Court did not even reach the 

issue of constitutional burdens, for the government’s sole interest in the disclosure provisions at 

issue was the administration of contribution limits that the Court had struck down facially. See 

Davis, 2008 WL 2520527, at *12. Unlike in the instant case — where the EC statute has been 

 

9

 Plaintiff also cites McIntyre and WRTL. (Pl.’s Resp. at 35-36.) As discussed above, 

Plaintiff’s reliance on McIntyre is inapposite because of the “one-on-one” nature of the 

communication at issue therein, see supra pp. 6-7, and WRTL’s discussion of the burden arising 

from the EC funding restriction is irrelevant to consideration of the EC disclosure requirements, 

see supra p. 5. 

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upheld on its face and the Commission has important informational and enforcement interests in 

its disclosure requirements — there simply was no constitutional governmental interest in Davis 

in continuing to require the disclosures. Thus, none of these cases supports Plaintiff’s claims 

regarding “per se burdens,” while those that have addressed the issue have held that the 

government’s interests were sufficient to justify disclosure in the absence of evidence of threats, 

harassment, and reprisals.10 (See also Def.’s Mem. at 26 & n.16 (collecting cases).) 

Accordingly, Citizens United’s failure to present such evidence is fatal to its case. 

II. THE EC DISCLAIMER REQUIREMENTS ARE CONSTITUTIONAL 

As discussed above, the EC disclaimer requirements are subject to intermediate scrutiny. 

See supra pp. 6-7. The government’s interest in providing information to the public is at least as 

strong in the context of disclaimers as it is in reporting, for, without the EC disclaimers, 

television ads mentioning candidates could be run shortly before elections without any indication 

of whether the ads were funded by a candidate (or his or her opponent). See 2 U.S.C. 

§ 441d(a)(3); 11 C.F.R. § 110.11(b)(3) (requiring to be printed on screen that EC is “not 

authorized by any candidate or candidate’s committee”). This lack of disclaimers could cause 

 

10 In addition to claiming a per se burden, Plaintiff alleges that it “was chilled from 

broadcasting its Ads at the most opportune time. . . . [T]he marketability of a movie about 

Senator Clinton has declined with the decline of her political fortunes . . . .” (Pl.’s Resp. at 36-

37.) To the extent a decrease in the “marketability” of a DVD states a constitutional claim, such 

a claim would be analyzed under the lesser standard of scrutiny applicable to commercial speech. 

See Zauderer v. Office of Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S. 626, 651-52 (1985); 

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 562-63 (1980) 

(“The Constitution . . . accords a lesser protection to commercial speech than to other 

constitutionally guaranteed expression.”). As to the broadcasting of Plaintiff’s film regarding 

Senator Barack Obama (Pl.’s Resp. at 37), the Commission notes again that Plaintiff could be 

advertising the film right now without any restrictions or disclosure requirements until July 29 

(see Def.’s Facts ¶ 12) but apparently is not doing so, even though public interest in Senator 

Obama is extremely high. See Pew Research Center, On the Campaign Trail: Media and Public 

Focused Mainly on Democrats (July 3, 2008), http://pewresearch.org/pubs/887/news-interest-oilprices (tracking public interest in, and news coverage of, candidates). 

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significant confusion among the public as to the source of the advertising; for example, the 

public may believe that ads explicitly or implicitly criticizing the candidate (such as Plaintiff’s 

“Questions” ad) are actually “attack” ads run by the opposing candidate. See generally H.R. 

Rep. No. 107-131, pt. 1, at 50-51 (2001) (describing, in report on BCRA, sources of viewer 

confusion in issue advertisements that mention candidates). The reporting requirements alone do 

not solve this problem: 

[T]he very thing that makes reporting less inhibiting than notice in the ad 

itself — fewer people are likely to see the report than the notice — makes 

reporting a less effective method of conveying information . . . . It’s as if 

cigarette companies, instead of having to disclose the hazards of smoking 

in their ads, had only to file a disclosure statement with the Food and Drug 

Administration. 

Majors, 361 F.3d at 353 (upholding disclaimer requirement for campaign advertising); see also

McConnell, 540 U.S. at 197 (characterizing plaintiffs’ claims as attempts to “hide themselves 

from the scrutiny of the voting public” (internal quotation marks omitted)). Accordingly, 

requiring self-identification in the ads is crucial to furthering the important (indeed, compelling) 

informational interests underlying the disclaimer requirements, and Plaintiff provides no 

argument to the contrary. 

Plaintiff asserts two burdens arising from the disclaimer requirements. First, Plaintiff 

claims that “the challenged disclaimer provision, which takes at least 4 seconds to intone, so 

limits Citizens’ 10-second ads that they are effectively restricted. And the disclaimer seriously 

limits a 30-second ad.” (Pl.’s Resp. at 23.) These are merely conclusory allegations: There is 

no evidence in the record of this case showing, as a factual matter, that corporations wishing to 

run WRTL ads are “effectively restricted” or “seriously limit[ed]” from doing so. The 

Commission also is not aware of any legal support for Plaintiff’s proposition that the time 

required to speak the disclaimer is of constitutional dimension. See Nat’l Elec. Mfrs. Ass’n v. 

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Sorrell, 272 F.3d 104, 116 (2d Cir. 2001).11 Indeed, McConnell upheld the disclaimer 

requirements despite the evidence in the record of that case regarding the importance of each 

second of political advertising. See McConnell, 251 F. Supp. 2d at 530 (quoting political 

consultant’s testimony that “[i]t is amazing how short thirty seconds really is when you are 

trying to craft a political ad”). Thus lacking factual support or legal authority, Plaintiff’s 

allegation of burden fails. 

 Plaintiff’s second argument is that 

[p]utting the same disclaimer on an ad that WRTL II said is not the 

functional equivalent of express advocacy as one would put on an ad that 

is functionally equivalent to express advocacy tells the public that this is 

really the functional equivalent of express advocacy, i.e., a campaign ad, 

an electioneering ad. That misleads the public. . . . The government may 

not compel misleading speech. 

(Pl.’s Resp. at 37.) The disclaimers about which Plaintiff complains are the spoken words 

“Citizens United is responsible for the content of this advertising,” see 2 U.S.C. § 441d(d)(2); 11 

C.F.R. § 110.11(c)(4), and the printed words “Not authorized by any candidate or candidate’s 

committee,” see 2 U.S.C. § 441d(a)(3); 11 C.F.R. § 110.11(b)(3). In effect, therefore, Plaintiff 

argues that the viewing public (a) knows that a disclaimer stating that the ad is “not authorized 

by any candidate” means that the ad has nonetheless been statutorily defined as “electioneering,” 

(b) knows that some “electioneering” is the functional equivalent of express advocacy, but (c) is 

incapable of realizing when a given ad is not the functional equivalent of express advocacy. 

Even if this claim were plausible on its face, Plaintiff could only be awarded summary judgment 

thereon if there were undisputed evidence in the record supporting its factual premises. Fed. R. 

 

11 Although Plaintiff attempts to distinguish Sorrell as relating to “securities . . . tobacco 

labeling . . . and the like” (Pl.’s Resp. at 38), Plaintiff neglects to mention that Sorrell

specifically included FECA provisions in its discussion of why the space and time used to satisfy 

disclaimer requirements do not constitute a constitutional burden. Sorrell, 272 F.3d at 116 

(citing 2 U.S.C. § 434). 

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Civ. P. 56(c); see Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1193-94 

(2008) (holding that plaintiffs’ “sheer speculation” regarding “mere possibility” that “voters will 

be confused” was “fatal flaw” in challenge to statute regarding candidate ballot listings); Meese 

v. Keene, 481 U.S. 465, 484 (1987) (rejecting disclaimer challenge where, inter alia, plaintiff 

had “no evidence” to support his claim that “a partially informed audience” might misunderstand 

disclaimer). There is no such evidence. 

 Furthermore, as the Commission discussed in its opening brief, the Supreme Court 

rejected this same claim regarding “misleading” disclaimers in Meese. (Def.’s Mem. at 32.) 

Plaintiff attempts to distinguish Meese on the grounds that the plaintiff there could add an 

explanation of “propaganda” to his movies, while Citizens United cannot explain 

“electioneering” in its ads. (Pl.’s Resp. at 37.)12 This misstates the Court’s holding, which 

included that the plaintiff was free to explain “propaganda” outside his films: “[T]he Act allows 

appellee to combat any . . . bias simply by explaining — before, during, or after the film, or in a 

wholly separate context — that [the reason for the propaganda label] does not necessarily 

undermine the integrity or the persuasiveness of its advocacy.” Meese, 481 U.S. at 481. Citizens 

United is free to do the same here. In any event, the numerous other rationales under which 

Meese rejected that First Amendment challenge apply in full to Citizens United’s disclaimer 

arguments. (See Def.’s Mem. at 32.) 

 

12 Plaintiff also states that the public will be more misled by the EC disclaimer than it was 

by the “propaganda” disclaimer at issue in Meese. (Pl.’s Resp. at 37.) This assertion fails for the 

same lack of evidence discussed above regarding whether the public is “misled.” 

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III. PLAINTIFF’S FILM IS THE FUNCTIONAL EQUIVALENT OF EXPRESS 

ADVOCACY 

A. No Specific “Words of Advocacy” Are Required for a Communication To Be 

the Functional Equivalent of Express Advocacy 

The Commission has discussed at length the ways in which Plaintiff’s film fails the test 

for exemption set out in WRTL, including the film’s indicia of express advocacy and its absence 

of discussion regarding legislative issues. (Def.’s Mem. at 37-45.) Plaintiff now appears to 

concede that its film does not focus on “some public issue” (Pl.’s Resp. at 45), but Plaintiff 

maintains that, under WRTL, indicia of express advocacy can only be found if the 

communication contains “some verb calling for some action.” (Id. at 42.) As we have shown 

(Def.’s Mem. at 39-41), the history of the Supreme Court’s express-advocacy jurisprudence and 

the text of WRTL itself reject such a wooden analysis. Instead, they mandate a holistic 

examination of the communication to determine whether it is, on the whole, susceptible of no 

reasonable interpretation other than as an appeal to vote for or against a specific candidate. (Id.) 

When WRTL analyzed the content of WRTL’s ads for “indicia of express advocacy,” the Court 

reviewed whether the ads “mention an election, candidacy, political party, or challenger,” and 

whether they “take a position on a candidate’s character, qualifications, or fitness for office,” not 

whether the ads contain specific words exhorting viewers to vote for or against a candidate. See

WRTL, 127 S. Ct. at 2667. WRTL simply never states that the communication must contain a 

verb-based appeal to vote to be subject to the EC funding restriction. In sum, WRTL means what 

it says: The absence of issue discussion, plus “indicia of express advocacy” (not, as Plaintiff 

would have it, “words of express advocacy”), indicates that a communication is the functional 

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equivalent of express advocacy. See WRTL, 127 S. Ct. at 2667.13 Because Plaintiff’s film does 

not focus on any issue and contains pervasive attacks on Senator Clinton’s “character, 

qualifications, [and] fitness for office,” id., it is not constitutionally exempt from the EC funding 

restriction. 

B. The Duration of Plaintiff’s Communication Is Irrelevant 

Plaintiff asserts, without any citation to authority, that “movies, like books, retain their 

historic First Amendment protection against government regulation. The movie may not be 

prohibited for this reason alone.” (Pl.’s Resp. at 41.) As the Commission noted in its opening 

brief, however, neither FECA nor McConnell draw any distinction between film-length 

communications and shorter advertisements. (Def.’s Mem. at 44 & n.24 (citing 2 U.S.C. 

§ 434(f)(3)(A)(i); McConnell, 540 U.S. at 209).) Furthermore, contrary to the assertion in 

Plaintiff’s response (Pl.’s Resp. at 40), the Commission has already cited to the portions of the 

McConnell district court opinion in which one of the judges discussed thirty-minute 

“infomercials” at length, and a second judge rejected the proposition that there was a significant 

difference between these thirty-minute communications and the thirty-second communications 

comprising the bulk of the record. (See Def.’s Mem. at 44 (citing McConnell, 251 F. Supp. 2d at 

 

13 As for Plaintiff’s renewed discussion (Pl.’s Resp. at 43) of FEC v. Furgatch, 807 F.2d 

857 (9th Cir. 1987), the Commission notes that not only is the case irrelevant here (see Def.’s 

Mem. at 41 n.21), but also that Plaintiff’s attempt to divine from Furgatch — a twenty-year-old 

Ninth Circuit case that neither WRTL nor any other opinion of the Court has ever cited or 

discussed — what the Supreme Court “could not have intended” in WRTL is a purely speculative 

endeavor. (Pl.’s Resp. at 43) 

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547-48, 906).)14 Thus, there can be no doubt that the Supreme Court was aware of 

communications longer than thirty-second advertisements when it decided McConnell, and there 

is nothing in that opinion indicating that the length of the communication was of any 

constitutional relevance.15 Rather, Congress crafted, and the Supreme Court upheld, a bright-line 

definition of ECs. See McConnell, 540 U.S. at 194 (noting that EC definition is “both easily 

understood and objectively determinable). Neither that definition nor the Constitution contains 

any exception for film-length communications. 

 

14 Judge Kollar-Kotelly described the thirty-minute communications, which the NRA had 

asserted were issue speech, as follows: 

The NRA created an advertising campaign in which “infomercials” would 

be run from September 1, 2000 to November 6, 2000. Two of the NRA's 

objectives were to “influence political elections where Republican seats 

are jeopardized” and “increase awareness of key gun issues as the 

Presidential election approaches.” Wayne LaPierre also testifies that the 

NRA “hoped [an NRA infomercial critical of Presidential candidate Al 

Gore] would impact the election.” When asked if the advertisement was 

designed in part to persuade viewers that they ought to vote against Gore, 

LaPierre testified: “We're happy if it did that. And, yeah, we're thrilled if 

it did that.” LaPierre thought that the Gore infomercials would have a 

“positive” political impact on the election: “Positive impact would mean a 

vote . . . against Al Gore.” 

McConnell, 251 F. Supp. 2d at 547-48 (citations omitted; brackets and ellipsis in original). 

15 Also of little relevance are Plaintiff’s references to the theatrical-release, DVD, and 

“compendium book” versions of its film. (See, e.g., Pl.’s Resp. at 40.) By definition, these 

communications are not ECs, see 2 U.S.C. § 434(f)(3)(A)(i), and WRTL held that “contextual 

factors,” such as an entity’s other communications, “should seldom play a significant role” in 

determining whether that entity’s EC is the functional equivalent of express advocacy. See 

WRTL, 127 S. Ct. at 2668-69. Plaintiff’s reliance on such extrinsic evidence is directly at odds 

with its position that “context . . . is now an improper consideration in determining either express 

advocacy or its functional equivalent.” (Pl.’s Resp. at 15.) 

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IV. CONCLUSION 

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

Commission’s motion for summary judgment and deny Plaintiff’s motion for summary 

judgment. 

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: July 11, 2008 (202) 694-1650 

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