1

“Disclosure Requirements” refers to both § 201 (“Reporting Requirement”) and BCRA

§ 311 (“Disclaimer Requirement”) of the Bipartisan Campaign Reform Act of 2002 (“BCRA”).

The Reporting Requirement is codified at 2 U.S.C. § 434(f). The Disclaimer Requirement is

codified at 2 U.S.C. § 441d(a). See also 11 C.F.R. § 110.11. “Ads” refers to the three adds for

which Citizens United has sought judicial relief herein. “Prohibition” refers to BCRA § 203’s

prohibition on corporate electioneering communications, 2 U.S.C. § 441b, as limited by FEC v.

Wisconsin Right to Life, 127 S. Ct. 2652 (2007) (“WRTL II”).

2As to Count 3, the FEC has filed [FEC]’s Motion to Dismiss Counts 3 & 4 of the Amended

Complaint (Doc. 43), which has received no ruling.

SJ Motion 1

United States District Court

District of Columbia

Citizens United,

Plaintiff,

v.

Federal Election Commission,

Defendant.

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

Plaintiff’s Summary Judgment Motion

Citizens United (“Citizens” moves for summary judgment in its favor on Count 1 (Disclosure

Requirements1

 as applied to its Ads and all communications not the “functional equivalent of express

advocacy” under the appeal-to-vote test of FEC v. Wisconsin Right to Life, 127 S. Ct. 2652, 2667

(2007) (“WRTL II”), Count 2 (Disclosure Requirements as applied to Hillary: The Movie), and

Count 3 (Prohibition as applied to Hillary).2 Fed. R. Civ. P. 56.

As to Count 4 (Prohibition as applied to “Questions” ad), Citizens “agree[d] to dismissal of

Count 4 without prejudice because it presently appears to be moot.” Doc. 46 at 1 (Pl.’s Mem. Law

Responding to FEC’s Mot. Dismiss Counts 3 & 4), to which the FEC agreed. Doc. 49 at 1.

As to Count 5 (Prohibition facially), the addition of this count was based on the FEC’s initial

inability to determine whether the “Questions” ad was prohibited. Now that the FEC has determined

the ad not to be prohibited Citizens considers Count 5 moot. If this jurisdiction permitted the

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 1 of 64
SJ Motion 2

dismissal of individual counts, Citizens would dismiss Count 5 without prejudice. As this is

impossible, Citizens hereby advises the Court of its intent to abandon the count and asks the Court

to consider the count moot and not rule on it.

In support of this motion, Citizens United files contemporaneously its Memorandum in Support

of Plaintiff’s Summary Judgment Motion, Plaintiff’s Statement of Undisputed Material Facts

(“SUMF”), and Affidavit of David N. Bossie, LCvR 7(h). A draft order is provided. LCvR 7(c). Oral

argument on this motion is requested. LCvR 7(f).

May 16, 2008

Respectfully submitted,

/s/ James Bopp, Jr. 

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

Richard E. Coleson*

Jeffrey P. Gallant*

Clayton J. Callen*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

 * pro hac vice motion granted

Counsel for Plaintiff

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 2 of 64
SJ Memo

United States District Court

District of Columbia

Citizens United,

Plaintiff,

v.

Federal Election Commission,

Defendant.

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

 

Memorandum in Support of

Plaintiff’s Summary Judgment Motion

_______________

May 16, 2008

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

812/235-3685 facsimile

 *pro hac vice motion granted

Counsel for Plaintiff

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 3 of 64
SJ Memo i

Table of Contents

Table of Authorities ........................................................... ii

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

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

Argument .................................................................... 6

I. All Campaign Restrictions Must Be “Unambiguously Campaign Related”

and Disclosure Provisions and Prohibitions Require Strict Scrutiny. ............... 8

II. McConnell Did Not Preclude As-Applied Challenges. ......................... 23

III. Disclosure Imposes Substantial Burdens. ................................... 25

IV. The Disclosure Requirements and Prohibition Are Unconstitutional as Applied. .... 33

A. The Ads Are Not Unambiguously Campaign Related ....................... 33

B. Hillary Is Not Unambiguously Campaign Related. ......................... 33

Conclusion .................................................................. 45

Plaintiff’s Statement of Undisputed Material Facts

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 4 of 64
SJ Memo ii

Table of Authorities

Cases

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) .............................. 16

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) .................................... 27

American Civil Liberties Union of Nevada v. Heller, 378 F.3d 979 (9th Cir. 2004) .......... 13

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990) ................... 18, 19

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

California Pro-Life Council v. Getman, 328 F.3d 1088 (9th Cir. 2003) ................... 38

Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006) ............... 13

Christian Civic League of Maine v. FEC, No. 06-614, slip op. (D.D.C. Aug. 21, 2007) ...... 17

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) .................. 11-12, 33

Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008) ..................... 24

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) .................................. 37-38

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) .................... 10, 11, 17

*FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007) ............................... 1

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ................... 11-12, 22

Gonzales v. Carhart, 127 S. Ct. 1610 (2007) ....................................... 24

Marks v. United States, 430 U.S. 188 (1977) ........................................ 1

*McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) ........................ 28, 34, 40

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

McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) .................... 22, 27, 29

New York Times v. Sullivan, 376 U.S. 254 (1964) .................................... 15

North Carolina Right to Life v. Leake, ___ F.3d ___, No. 07-1438, 2008 WL 1903462 (4th

Cir. May 1, 2008) ...................................................... 20-22

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 5 of 64
SJ Memo iii

San Jose Silicon Valley Chamber of Commerce PAC v. San Jose, No. 06-0425) (N.D. Cal.

Sep. 20, 2006) ............................................................ 13

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) .................................... 41

Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184 (2008) .... 24

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006) .................................. 7

Wisconsin Right to Life v. FEC, No. 04-1260, slip op. (D.D.C. July 23, 2007) ............. 16

Statutes, Rules, and Constitutional Provisions

2 U.S.C. § 431(17) .......................................................... 9, 12

2 U.S.C. § 434(f)(3) .......................................................... 1, 3

2 U.S.C. § 441b .............................................................. 10

11 C.F.R. § 100.29 ............................................................. 3

11 C.F.R. § 100.29(b)(3)(i) ..................................................... 41

11 C.F.R. § 110.11 ............................................................. 3

11 C.F.R. § 114.15(b) ......................................................... 43

11 C.F.R. § 114.15(b)(1) ........................................................ 4

11 C.F.R. § 114.15(b)(2) ........................................................ 4

11 C.F.R. § 114.15(b)(3)(ii) ...................................................... 4

Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81 passim

Fed. R. Civ. P. 56(c) ........................................................... 6

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

U.S. Const. art. I, § 4 ........................................................... 8

Other Authorities

70 Fed. Reg. 75713 ........................................................... 42

Brian Dougherty, Disclosure Flaw, reasononline, Mar. 1996 ........................... 31

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 6 of 64
SJ Memo iv

Brian Dougherty, How campaign finance law hurts participation in politics, reasononline,

Apr. 2001 ............................................................... 32

Club for Growth PAC, FEC Advisory Opin. Req., AO 2007-33 .......................... 5

Dick M. Carpenter II, Disclosure Costs: Unintended Consequences of Campaign Finance

Reform (2007) ......................................................... 30, 31

William McGeveran, Mrs. McIntyre’s Checkbook: Privacy Costs of Political Contribution

Disclosure, 6 U. Pa. J. Const. L. 1 (2003) ................................... 28-30

Bradley A. Smith, A Moderate, Modern Campaign Reform Agenda, 12 NEXUS 3 (2007) .... 30

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 7 of 64
3This principal opinion (“WRTL II”) is by Chief Justice Roberts (Justice Alito joining). This

opinion states the holding. Marks v. United States, 430 U.S. 188, 193 (1977) (Absent majority

opinion, holding is position taken by those concurring on narrowest grounds.)

4WRTL II uses “political speech” to indicate the protected speech numerous times. Id. at

2659 (twice), 2660, 2664, 2665 (thrice), 2666 (twice), 2669, 2671-74.

SJ Memo 1

Introduction

As FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007) (“WRTL II”),3

 was an as-applied

challenge to a provision of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No.

107-155, 116 Stat. 81, facially upheld in McConnell v. FEC, 540 U.S. 93 (2003), this case also

challenges, as applied, a BCRA provision facially upheld in McConnell. While McConnell

facially upheld the corporate electioneering communications Prohibition, WRTL II limited the

scope of regulable electioneering communications to those meeting both the statutory definition

(2 U.S.C. § 434(f)(3)) and WRTL II’s appeal-to-vote test. 127 S. Ct. at 2667 (“susceptible of no

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

Those not the “functional equivalent of express advocacy” under WRTL II’s test are protected

“political speech” or “issue advocacy.” Id. at 2659.4

WRTL II’s appeal-to-vote test is the latest application of the constitutional first principle recognized in Buckley v. Valeo, 424 U.S. 1 (1976), that campaign finance laws may only regulate

communications that are “unambiguously related to the campaign of a particular federal candidate,” id. at 80, i.e., “unambiguously campaign related.” Id. at 81. Buckley expressly applied this

unambiguously-campaign-related requirement to the disclosure of expenditures. Id. at 80. So it

has direct application here. McConnell facially upheld the “Disclosure Requirements” (see

Motion at 1 n.1), 540 U.S. at 194-202, but they are unconstitutional as applied to communications that are not unambiguously campaign related under WRTL II’s test.

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 8 of 64
5Scripts for the Ads (“Wait,” “Pants,” and “Questions”) are in Plaintiff’s Statement of

Undisputed Material Facts. SUMF ¶¶ 26-28.

SJ Memo 2

So Citizens United (“Citizens”) seeks declaratory and permanent injunctive relief from the

Disclosure Requirements as applied to (a) communications that are not unambiguously campaign

related under WRTL II’s appeal-to-vote test, (b) Citizens’ Ads,5 and (c) Hillary: The Movie. And

Citizens seeks declaratory and injunctive relief from the electioneering communication Prohibition as applied to Hillary: The Movie, which the FEC insists is not protected under WRTL II.

Facts

The facts summarized here are set out in Plaintiff’s Statement of Undisputed Material Facts

(“SUMF”). Citizens is a nonprofit, ideological corporation. A principal means by which Citizens

fulfills its purposes is through the production and distribution of documentary films. See SUMF

¶¶ 5-9 (information about other films). In January 2008, Citizens released a feature-length

documentary film on Senator Hillary Clinton, entitled Hillary: The Movie, that is being shown in

theaters and sold on DVDs. It includes numerous interviews and scenes of Senator Clinton at

public appearances. It is about 90 minutes in length. It does not expressly advocate Senator

Clinton’s election or defeat, but it discusses her Senate record, her White House record during

President Bill Clinton’s presidency, and her presidential bid. Some interviewees opine on

whether she would make a good president. A compendium book has been published.

When Citizens produced Celsius 41.11: The Temperature at Which the Brain Begins to Die

(responding to Michael Moore’s documentary Fahrenheit 9/11) in 2004, it ran national broadcast

ads promoting the film. The original version of the ads had images and sound bites of President

George Bush and Senator John Kerry, but those images and sound bites were deleted due to the

electioneering communication Prohibition. Prior to running the ads, Citizens received FEC

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 9 of 64
6The Disclaimer Requirement mandates (1) a spoken statement that “Citizens United is

responsible for the content of this advertising” and (2) a written statement appearing on screen

stating (a) “the name and permanent street address, telephone number or . . . Web address of the

person who paid for the communication,” (b) a statement that the communication is “not

authorized by any candidate or candidates committee,” and (c) a “clearly readable” statement that

“Citizens United is responsible for the content of this advertising.” 11 C.F.R. § 110.11(a)-(c).

SJ Memo 3

Advisory Opinion 2004-30, stating that its film ads would qualify as electioneering communications and would not be exempt under the Press Exemption.

Citizens intends to fund three television Ads to promote Hillary that will be “electioneering

communications” and burdened by the Disclosure Requirements. See 2 U.S.C. § 434(f)(3); 11

C.F.R. § 100.29. Citizens intends to broadcast the 30-second ad “Questions” on Fox News cable,

and may broadcast it on major television network stations. Citizens intends to broadcast the 10-

second ads “Wait” and “Pants” on major television network stations, but not on Fox News. The

disclaimer language mandated by FEC rule, see 11 C.F.R. § 110.11, takes about 4 seconds to

narrate, making 10-second ads virtually impossible and 30-second ads difficult to do with significant time for substantive communication.6

 The Ads reference www.hillarythemovie.com, which

promotes showings of Hillary in theaters and sales of Hillary on DVD.

Citizens intends to begin broadcasting its ads during electioneering communication periods

when it gets the relief requested herein. If Senator Clinton becomes the presidential nominee of

her party, Citizens plans to run the Ads on Fox News cable (and possibly other outlets) within 30

days before the Democratic National Committee Convention (the electioneering communication

period is July 29 to August 28, 2008) and within 60 days of the November general election (the

electioneering communication period is September 5 to November 4, 2008). At these times, the

Ads will also meet the electioneering communication definition. Citizens believes that these are

the times when the public’s interest in Senator Clinton will be at its peak, which is the key to

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 10 of 64
7They will not be prepared until the movie is completed because they will be based on scenes

from the documentary. Nor can Citizens seek an advisory opinion on these ads because they are

neither begun nor completed and because the FEC is, for the foreseeable future, unable to issue

advisory opinions due to an insufficient number of commissioners. These ads will also be run

during electioneering communication periods and subject to the Disclosure Requirements.

8Citizens believes that all of the ads meet the requirements of the recently-enacted FEC rule

recognizing a commercial-transaction, safe-harbor exception to the electioneering communication prohibition because each (a) “[p]roposes 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,” 11 C.F.R. § 114.15(b) (3)(ii); (b) “[d]oes not mention any election, candidacy,

political party, opposing candidate, or voting by the general public,” id. at § 114.15(b)(1); and (c)

“[d]oes not take a position on any candidate’s or officeholder’s character, qualifications, or

fitness for office.” Id. at § 114.15(b)(2). 

9Seven days after this suit was filed, the FEC was unsure whether the “Questions” was a

protected ad—under its regulatory test or WRTL II’s appeal-to-vote test—and declared that it

needed more time to make up its mind. Doc. 19 at 8 (Opp’n to Mot. for Consol’n). Seventeen

days later, the FEC finally concluded that the 30-second ad was protected under WRTL II. Doc.

33 at 17 (Opp’n to 2d Mot. for Prelim. Inj.).

SJ Memo 4

maximizing box office and DVD sales for Hillary. Citizens is in the process of making a

documentary film about presidential candidate Senator Barack Obama, which it intends to have

ready for release by June 2008. Citizens will have ads that are substantially similar to the Ads for

Hillary to promote its Senator Obama documentary, but it cannot offer its ads for judicial review

in advance because they are not prepared.7

The Ads may not be prohibited. The FEC concedes that the two 10-second ads fit its

regulatory commercial transaction exception, but says that “Questions” falls outside the safe

harbor. Doc 33 at 17 (Opp’n to 2d Mot. for Prelim. Inj.).8 But the FEC concedes that “on

balance” “Questions” is protected from prohibition under WRTL II’s appeal-to-vote test. Id.9

 The

Ads remain subject to the Disclosure Requirements because the FEC refused to exclude

electioneering communications that are not unambiguously campaign related under WRTL II’s

appeal-to-vote test. See http://www.fec.gov/law/law_rulemakings.shtml#ec07 (rulemaking

documents including requests to eliminate disclosure for ads protected by WRTL II).

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 11 of 64
10While Citizens relies primarily on constitutional arguments, there is no evidence that

Congress intended to apply the Disclosure Requirements to communications meeting the

electioneering communication definition but precluded from the scope of regulable communications because they are not unambiguously campaign related under WRTL II.

11On November 15, 2007, Club for Growth PAC (“CFG- PAC”) requested an FEC advisory

opinion granting an exemption from disclaimer requirements for 10- and 15-second televised

independent expenditure ads. CFG-PAC stated that the disclaimers “severely curtail[]” its speech

as 31.6% to 36.9% of 10-second ads would be consumed by the spoken disclaimer. CFG- PAC

also noted how such short “TV spots are important in the current media landscape with multiplication of viewing choices, increased competition from the Internet, and ever increasing costs.”

CFG-PAC, Advisory Opin. Req., AO 2007-33, available at www. fec.gov (Pending Advisory

Opinion Requests). The request was placed on the agenda for the Commission’s January 24,

2008 meeting. The draft advisory opinion submitted by the FEC Office of General Counsel

argued against the exemption. See FEC Office of General Counsel, Draft AO, Agenda Doc. No.

08-03, available at www. fec.gov (Pending Advisory Opinion Requests). Of course, the FEC

lacks sufficient commissioners to issue a formal advisory opinion.

SJ Memo 5

Citizens does not believe that the Disclosure Requirements are constitutional as applied to

communications that are not unambiguously campaign related under WRTL II’s appeal-to-vote

test, including its Ads and Hillary. It will neither assume the disclosure burdens nor broadcast its

communications absent the requested judicial relief. If it were to comply with the Disclaimer

Requirement, it would be (a) required to mislead the public by identifying its speech as “electioneering” (by compliance with the “electioneering communication” Disclosure Requirements),

which the speech is not under WRTL II, and (b) deprived of valuable time in its short and

expensive broadcast Ads without constitutional or congressional authority.10 Adding the

disclaimer would preclude Citizens from running its 10-second ads11 and would require it to

revise its 30-second ad so as to be much less effective for the constitutionally-protected purposes

that it serves. If Citizens were to comply with the Reporting Requirement it would be (1)

required to mislead the public by reporting its speech as “electioneering”; (2) deprived of

valuable time and resources in complying with reporting requirements without constitutional or

congressional authority; and (3) in Citizens’ belief based on long experience, subjected to a

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 12 of 64
SJ Memo 6

substantially reduced number of donors and amount of donations because many potential donors

do not wish to be publicly identified for legitimate reasons. Citizens also believes that Hillary is

not unambiguously campaign related, but Citizens is chilled from broadcasting the movie

because the FEC insists that it fails WRTL II’s appeal-to-vote test.

Argument

Summary judgment “should be rendered if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The undisputed

fact pattern is simple—Citizens is chilled from doing communications that would subject it to the

Disclosure Requirements. On the purely legal issues, Citizens is entitled to judgment.

In denying a preliminary injunction, this Court indicated that it did not believe that Citizens

had likely success on the merits. The Court did not accept that, as this Court put it, WRTL II had

“narrowed the permissible scope of what could be considered an electioneering communication”

so that communications that are not the functional equivalent of express advocacy under WRTL

II’s appeal-to-vote test could not be regulated. Doc. 38 at 11. The points on which the Court

relied are set out next with indications of where the points are addressed. Citizens respectfully

invites the Court to consider these points in light of the responses.

First, this Court said that “the only issue in [WRTL II] was whether speech that did not

constitute the functional equivalent of express advocacy could be banned . . . .” Id. In Part I,

Citizens responds that WRTL II protected speech that is not “the functional equivalent of express

advocacy,” 127 S. Ct. at 2667—which WRTL II called “political speech” or “issue advocacy,” as

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 13 of 64
12Political speech is used in WRTL II as a synonym for issue advocacy, see supra, n.4, and as

an antonym to campaign speech or express advocacy. See, e.g., 127 S. Ct. at 2659.

SJ Memo 7

distinguished from “campaign speech” or “express advocacy”12—employing an analysis that it

expressly applied to disclosure in Buckley, 424 U.S. 1, and that logically extends beyond the

Prohibition at issue in WRTL II to the Disclosure Requirements presently at issue.

Second, this Court said that McConnell precludes as-applied challenges, i.e., while

McConnell “left open the issue that was presented in WRTL, reserving it for decision on an asapplied basis,” the Disclosure Requirements were “sustained” as to “the ‘entire range of

electioneering communications.’” Doc. 38 at 11 (citation omitted). In Part II, Citizens responds

that the Supreme Court unanimously rejected just such an argument in Wisconsin Right to Life v.

FEC, 546 U.S. 410 (2006) (“WRTL I”) (per curiam), and that the “entire range of electioneering

communications” does not rightly include those held not to be the functional equivalent of

express advocacy under WRTL II’s appeal-to-vote test. WRTL II, 127 S. Ct. at 2667.

Third, this Court said that “in the past the Supreme Court has written approvingly of

disclosure provisions triggered by political speech even though the speech itself was constitutionally protected under the First Amendment.” Doc. 38 at 11. As may be seen in Part I, no cited case

approves disclosure as to speech that is not unambiguously campaign related.

Fourth, this Court said that Citizens had not provided evidence that there would be “reprisals,” so that it was not within the class of socially disfavored groups that are free from any

disclosure as to contributors. Doc. 38 at 12. In Part III, Citizens explains that this statement indicates a misunderstanding of Citizens’ argument and that binding precedent recognizes disclosure

costs and requires that they always be considered in strictly scrutinizing disclosure burdens.

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 14 of 64
SJ Memo 8

I. All Campaign Restrictions Must Be “Unambiguously Campaign Related”

and Disclosure Provisions and Prohibitions Require Strict Scrutiny.

This Court denied a preliminary injunction in part on the basis that only the Prohibition was

at issue in WRTL II. But WRTL II reaffirmed the Court’s unambiguously-campaign-related

requirement, which the Supreme Court expressly applied to disclosure of expenditures in

Buckley, 424 U.S. at 80. As discussed at the end of this Part, the unambiguously-campaignrelated requirement was just employed by the Fourth Circuit as the foundation for deciding an

election-law case. That Buckley-WRTL II constitutional analysis must be applied here.

Constitutional analysis should begin with the Constitution, which mandates that “Congress

shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. This “‘guarantee

has its fullest and most urgent application precisely to the conduct of campaigns for political

office.’” Buckley, 424 U.S. at 15 (citation omitted). If “Congress shall make no law,” how may

government regulate election-related First Amendment activities? Buckley identified the answer

as “[t]he constitutional power of Congress to regulate federal elections.” Id. at 13 (footnote

omitted) (emphasis added) (citing U.S. Const. art. I, § 4).

This authority is self-limiting. If the government tries to regulate speech and association not

clearly related to election campaigns, it goes beyond its authority. Key to Buckley’s analysis is its

question of whether “the relation of the information sought to the purpose of the Act [regulating

elections] may be too remote,” and, therefore, “impermissibly broad.” Id. at 80 (emphasis added).

The Court requires that government restrict its election-related laws to reach only First Amendment activities that are “unambiguously related to the campaign of a particular federal candidate,” id. at 80 (emphasis added), in short, “unambiguously campaign related.” Id. at 81.

This unambiguously-campaign-related requirement reaffirms and clarifies an earlier

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 15 of 64
13An “independent expenditure” is an express-advocacy communication that is not coordinated with a candidate so as to become a contribution. See 2 U.S.C. § 431(17).

SJ Memo 9

formulation of the requirement where the Court established the standard of review as requiring

both “exacting scrutiny” (i.e., strict scrutiny) and “also . . . that there be a ‘relevant correlation’

[footnote omitted] or ‘substantial relation’ [footnote omitted] between the governmental interest

and the information required to be disclosed.” Id. at 64 (emphasis added). This “relevant correlation” or “substantial relation” was applied by the Court to require that regulated activity must be

“unambiguously related to the campaign of a particular federal candidate.” Id. at 80.

Buckley applied this requirement to (1) expenditure limitations, id. at 42-44; (2) PAC status

and disclosure, id. at 79; (3) non-PAC disclosure of contributions and independent expenditures,13 id. at 79-81; and (4) contributions. Id. at 23 n.24, 78 (“So defined, ‘contributions’ have a

sufficiently close relationship to the goals of the Act, for they are connected with a candidate or

his campaign.”). Because Buckley expressly applied this requirement to disclosure of expenditures, id. at 80, it has direct application here.

Buckley employed two tests to implement the unambiguously-campaign-related requirement.

First, to implement the requirement for PAC status, the Court created the major purpose test for

“political committees”: “To fulfill the purposes of the Act [i.e., regulating elections] they need

only encompass organizations that are under the control of a candidate or the major purpose of

which is the nomination or election of a candidate. Id. at 79. “Expenditures of candidates and of

‘political committees’ so construed can be assumed to fall within the core area sought to be

addressed by Congress. They are, by definition, campaign related.” Id. at 79 (emphasis added).

This test assures that expenditures are “unambiguously related to the campaign of a particular

federal candidate.” Id. at 80. Second, to implement the requirement as to expenditures, the Court

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 16 of 64
SJ Memo 10

created the express-advocacy test, i.e., whether a communication contains explicit words

expressly advocating the election or defeat of a clearly identified candidate. Id. at 44, 80.

The reason for the requirement and these two derivative tests is twofold. First, they limit

congressional power to the constitutional authority to regulate elections. See id. at 13. Second,

they protect the people’s core political speech in their sovereign, self-government role, which

must not be burdened. The Court noted a dissolving-distinction problem as requiring a bright,

speech-protective line between (1) “discussion of issues and candidates” and (2) “advocacy of

election or defeat of candidates”:

 [T]he distinction between discussion of issues and candidates and advocacy of election or

defeat of candidates may often dissolve in practical application. Candidates, especially

incumbents, are intimately tied to public issues involving legislative proposals and

governmental actions. Not only do candidates campaign on the basis of their positions on

various public issues, but campaigns themselves generate issues of public interest. [Id. at

42 (emphasis added).]

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

laudation, [and] general advocacy” and (2) “solicitation”—to protect issue advocacy:

(W)hether words intended and designed to fall short of invitation would miss that mark is

a question both of intent and of effect. No speaker, in such circumstances, safely could

assume that anything he might say upon the general subject would not be understood by

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

laudation, general advocacy, and solicitation puts the speaker in these circumstances

wholly at the mercy of the varied understanding of his hearers and consequently of

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

no security for free discussion. In these conditions it blankets with uncertainty whatever

may be said. It compels the speaker to hedge and trim. [Id. at 43 (emphasis added).]

In FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) (“MCFL”), the Court again

recognized the unambiguously-campaign-related requirement. First, it applied the express advocacy test to implement the requirement as applied to the prohibition on corporate and union independent expenditures at 2 U.S.C. § 441b. MCFL, 479 U.S. at 249. Second, MCFL reiterated the

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SJ Memo 11

major purpose test, which implements the requirement as to PAC status. Id. at 253, 262 (major

purpose test determined by express-advocacy “independent spending”).

The requirement was affirmed in First National Bank of Boston v. Bellotti, 435 U.S. 765

(1978), which held that corporations could not be precluded from making either contributions or

expenditures for or against ballot initiatives because “[r]eferenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections

simply is not present in a popular vote on a public issue.” Id. at 790 (citations omitted). The

requirement was affirmed again in Citizens Against Rent Control v. Berkeley, 454 U.S. 290

(1981) (“CARC”), which applied “exacting scrutiny,” id. at 294 (“Placing limits on contributions

which in turn limit expenditures plainly impairs freedom of expression”), to a limit on contributions to a ballot initiative committee and held it unconstitutional because it d[id] not advance a

legitimate governmental interest significant enough to justify its infringement of First Amendment rights.” Id. at 298.

In denying preliminary injunction, the present Court relied on MCFL, CARC, and Bellotti for

the proposition that “the Supreme Court has written approvingly of disclosure provisions triggered by political speech even though the speech itself was constitutionally protected under the

First Amendment.” Doc. 38 at 11-12. But no case authorizes disclosure of communications that

are not “unambiguously campaign related,” Buckley, 424 U.S. at 81, i.e., not the “functional

equivalent of express advocacy” under WRTL II’s appeal-to-vote test. 127 S. Ct. at 2667. MCFL

spoke approvingly of disclosure of independent expenditures, which are unambiguouslycampaign-related. See 479 U.S. at 252-53 (“person that during a year makes independent

expenditures”; “unincorporated organizations whose major purpose is not campaign advocacy,

but who occasionally make independent expenditures” (emphasis added)). An “independent exCase 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 18 of 64
SJ Memo 12

penditure” is an expenditure “expressly advocating the election or defeat of a clearly identified

candidate . . . .” 2 U.S.C. § 431(17). This definition is consistent with the express advocacy construction that Buckley imposed on disclosure restrictions in the process of implementing the

unambiguously-campaign-related requirement. 424 U.S. at 80.

Nor does CARC support the idea that the government may regulate transactions that are not

unambiguously campaign related. CARC dealt with contributions to a campaign committee,

which are unambiguously-campaign-related: “The issue on appeal is whether a limitation of $250

on contributions to committees formed to support or oppose ballot measures violates the First

Amendment.” 454 U.S. at 291. Buckley, construed “contributions” to meet the unambiguouslycampaign-related requirement. See 424 U.S. at 23 n.24, 78.

Bellotti provides no support for regulation beyond the unambiguously-campaign-related

requirement because it dealt with a statute that barred “associations and . . . corporations . . . from

making contributions or expenditures ‘for the purpose of . . . influencing or affecting the vote,’”

435 U.S. at 767-78 (citation omitted), and Buckley construed “‘contributions’ and ‘expenditures’

. . . ‘for the purpose of influencing’” to meet the unambiguously-campaign-related requirement,

424 U.S. at 77-81, so that the scope of “contributions” was narrowly limited and “expenditures”

were limited to express advocacy. See supra at 9-10. These cases support Citizens’ argument and

provide no authority for regulating core political speech that is neither a contribution nor express

advocacy (nor the functional equivalent of express advocacy under WRTL II’s test).

While McConnell, 540 U.S. 93, declared “the express advocacy restriction . . . an endpoint

of statutory interpretation, not a first principle of constitutional law,” the express advocacy test

was created to implement the unambiguously-campaign-related requirement, which is a first

principle of constitutional law. McConnell expressly recognized this by quoting Buckley’s explaCase 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 19 of 64
14Since McConnell, several courts have embraced the express advocacy construction as an

indispensable tool in dealing with vague or overbroad provisions. For example, the Ninth Circuit

in American Civil Liberties Union of Nevada v. Heller, 378 F.3d 979, 985 (9th Cir. 2004),

followed the Sixth Circuit in endorsing the express advocacy test as the appropriate tool where a

provision is vague and overbroad:

Nevertheless, as stated recently by the Sixth Circuit, McConnell “left intact the ability of

courts to make distinctions between express advocacy and issue advocacy, where such

distinctions are necessary to cure vagueness and over-breadth in statutes which regulate

more speech than that for which the legislature has established a significant governmental

interest.” Anderson v. Spear, 356 F.3d 651, 664-65 (6th Cir. 2004).

See also Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006); San Jose

Silicon Valley Chamber of Commerce PAC v. San Jose, No. 06-0425) (N.D. Cal. Sep. 20, 2006)

(Order Granting Pl.’s Mot. for Summ. J. and Den. Defs.’ Mot. for Summ. J.).

15McConnell also expressly recognized the existence of “issue advocacy,” which it described

as “‘discussion of political policy generally or advocacy of the passage or defeat of legislation,’”

id. at 205 (quoting Buckley, 424 U.S. at 48), and of “genuine issue ads” that it recognized likely

lay beyond Congress’ ability to regulate. Id. at 206 n.88. Issue advocacy, i.e., ordinary political

speech, is not unambiguously campaign related, as WRTL II recognized. See infra.

SJ Memo 13

nation that the express advocacy construction was done “‘[t]o insure that the reach’ of the disclosure requirement was ‘not impermissibly broad.’” Id. at 191 (quoting Buckley, 424 U.S. at 80).

McConnell also implicitly endorsed the unambiguously-campaign-related requirement when it

stated that “[i]n narrowly reading the FECA provisions in Buckley to avoid problems of vagueness and overbreadth, we nowhere suggested that a statute that was neither vague nor overbroad

would be required to toe the same express advocacy line.” Id. at 192. So where a restriction on

First Amendment liberties is vague or overbroad (for reaching beyond things unambiguously

campaign related) it must toe the express advocacy line,14 or its “functional equivalent.” Id. at

206. McConnell’s facial upholding of the prohibition on electioneering communications only “to

the extent that [they] . . . are the functional equivalent of express advocacy,” id., is another

reaffirmation of the unambiguously-campaign-related requirement.15

WRTL II applied the unambiguously-campaign-related requirement to eliminate overbreadth

in the regulation of BCRA’s new “electioneering communications” when it stated its test for

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SJ Memo 14

functional equivalence: “[A]n ad is the functional equivalent of express advocacy only if the ad is

susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific

candidate.” 127 S. Ct. at 2667. WRTL II reiterated the requirement when it said that the corporateform corruption interest does not “extend[] beyond campaign speech.” Id. at 2672 (emphasis

added). WRTL II’s appeal-to-vote test is the application of the unambiguously-campaign-related

requirement to electioneering communications, just as the express advocacy test was the Court’s

application of the requirement to independent expenditures. In light of WRTL II, there is no longer

a free-standing “functional equivalent of express advocacy” test, McConnell, 540 U.S. at 206,

because functional equivalence is now determined by WRTL II’s test.

WRTL II also reaffirmed that the purpose of the unambiguously-campaign-related requirement—and its appeal-to-vote test applying it—is twofold. Negatively, it confines government

within the pale of its constitutional authority to regulate elections. See supra at 10. Positively, it

protects what the Court calls “political speech” or “issue advocacy.” 127 S. Ct. at 2659. WRTL II

explained that “[i]ssue advocacy conveys information and educates,” id. at 2667, and reaffirmed

Buckley’s statement that the dissolving-distinction problem, see supra at 10, requires a speechprotective, bright-line test that resolves all doubts in favor of free speech:

[W]e have acknowledged at least since Buckley . . . that “the distinction between discussion

of issues and candidates and advocacy of election or defeat of candidates may often dissolve

in practical application.” 424 U.S., at 42. Under the test set forth above, that is not enough

to establish that the ads can only reasonably be viewed as advocating or opposing a

candidate in a federal election. “Freedom of discussion, if it would fulfill its historic function

in this nation, must embrace all issues about which information is needed or appropriate to

enable the members of society to cope with the exigencies of their period.” Thornhill v.

Alabama, 310 U.S. 88, 102 (1940). Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is

implicated, the tie goes to the speaker, not the censor. [Id. at 2669.]

Note that what WRTL II referred to as constitutionally-protected “political speech” or “issue

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SJ Memo 15

advocacy,” see, e.g., 127 S. Ct. at 2659, does not require “focus on legislative issues,” as the

present Court seemed to believe in its preliminary injunction analysis. Doc. 38 at 7. Nowhere in

WRTL II’s appeal-to-vote test is there any requirement that the communication focus on legislative issues in order to be protected “political speech” or “issue advocacy.” WRTL II did observe, in

applying its appeal-to-vote test to grassroots lobbying, that WRTL’s communications focused on

legislative issues. 127 S. Ct. at 2667. But to make that a requirement for the appeal-to-vote test or

for qualifying as protected “political speech” or “issue advocacy” is to confuse a constitutional

test with the fact-bound application of the test in a particular case. To qualify as protected “political speech,” a communication needs only to be “speech about public issues more generally, or

‘issue advocacy,’ that mentions a candidate for federal office,” id. at 2659, or to “convey[] information and educate[],” id. at 2667, or to be a “discussion of issues and candidates” that falls short

of express “advocacy of election or defeat of candidates.” Id. at 2669 (quoting Buckley, 424 U.S.

at 42). Since WRTL II reaffirmed “‘the fundamental rule of protection under the First Amendment,

that a speaker has the autonomy to choose the content of his own message,’” id. at 2671 (citation

omitted), no restriction may be imposed on what constitutes “political speech” or “issue advocacy.” The speaker is free to engage in its speech without government restriction unless there is a

constitutionally-cognizable reason and means to restrict it, which there is not if the speech is not

unambiguously campaign related under the Supreme Court’s tests applying that requirement. In

effect, then, “political speech” or “issue advocacy” is defined by the absence of either express

advocacy or WRTL II’s “appeal to vote,” not the presence of some topic.

Lest there be any doubt as to the necessity of speech-protective lines, WRTL II reiterated that

“the benefit of any doubt [goes] to protecting rather than stifling speech,” id. at 2667 (citing New

York Times v. Sullivan, 376 U.S. 254, 269-70 (1964)), “in a debatable case, the tie is resolved in

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16The ad stated:

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

have an abortion. But, she can be taken to Illinois for an abortion that is kept secret from

you. Imagine, your daughter can be taken across state lines for a major surgical procedure

without your knowledge or consent. The U.S. Senate recently passed a bill to protect

parents from secret abortions. Fortunately, Senator Kohl voted for the rights of parents. But,

sadly, Senator Feingold did not. Your help is urgently needed because some Senators are

SJ Memo 16

favor of protecting speech,” id. at 2669 n.7, and “the benefit of the doubt [goes to] speech, not

censorship.” Id. at 2674. In other words, free speech about public issues, especially political ones,

is so essential to our system of government that it is better to allow some theoretically-regulable

speech to go unrestricted than to chill public debate. This approach is akin to criminal jurisprudence, which finds it better to let some guilty persons go free than to convict innocents, except

that chilling free speech affects not only the lone speaker, but also her hearers and our very system

of government. WRTL II reaffirmed the statement in Ashcroft v. Free Speech Coalition, 535 U.S.

234 (2002), that “‘[t]he Government may not suppress lawful speech as the means to suppress

unlawful speech. Protected speech does not become unprotected merely because it resembles the

latter. The Constitution requires the reverse.’” Id. at 2670 (quoting Ashcroft, 535 U.S. 234 at 255).

To do otherwise would “‘turn[] the First Amendment upside down.’” Id. (citation omitted).

Two post-WRTL II cases further develop the scope of protection for ordinary political speech

in the context of electioneering communications—showing applications of the WRTL II appeal-tovote test and the underlying unambiguously-campaign-related requirement. In both of these cases,

the FEC and the intervenors (BCRA prime sponsors Sen. McCain et al.) agreed to a stipulated

judgment conceding that the ads at issue were protected political speech under WRTL II’s test.

WRTL III held the electioneering communication Prohibition unconstitutional as applied to

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

FEC, No. 04-1260, slip op. at 1 (D.D.C. July 23, 2007) (“WRTL III”).16 The CCPA ad stated the

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holding up further action on the bill. Please call Senators Kohl and Feingold at 202-224-

3121 and urge them to stop efforts by the Senate Democratic leadership to hold up a bill

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

17The ad stated:

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

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

this country and could be declared unconstitutional at any time by rogue judges. We must

safeguard the traditional definition of marriage by putting it beyond the reach of all

judges—by writing it into the U.S. Constitution. Unfortunately, your senators voted against

the Marriage Protection Amendment two years ago. Please call Sens. Snowe and Collins

immediately and urge them to support the Marriage Protection Amendment when it comes

to a vote in early June. Call the Capitol switchboard at 202-224-3121 and ask for your

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

18As noted, supra at 9, Buckley applied the unambiguously-campaign-related requirement to

the definitions of contributions, expenditures, and political committees in both prohibition and

disclosure contexts.

SJ Memo 17

positions of Senators Feingold and Kohl (the candidate), based on their prior votes, and characterized their positions. The other case involved an ad that the Christian Civic League of Maine

sought to run.17 This ad stated the candidates’ position on the issue and characterized that position.

The district court held the electioneering prohibition unconstitutional as applied to the ad.

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

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

criticizing or praising that position may be fully protected political speech.

The unambiguously-campaign-related requirement is the unifying constitutional principle and

analysis of the governing precedents here—Buckley, MCFL, McConnell, and WRTL II. It has been

applied by the Supreme Court as a threshold test—regardless of the level of scrutiny18—to assure

that restrictions based on government-asserted interests in regulating elections under Article I, § 4

of the Constitution are closely and clearly related to that authority. See, e.g., Buckley, 424 U.S. at

80-81. It has been applied to determine whether the Government has a sufficient interest. See

WRTL II, 127 S. Ct. at 2667 (“This Court has never recognized a compelling interest in regulating

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19While it is true that only the Prohibition was at issue in WRTL II, the opinion consistently

employed broader terminology consistent with the application of the unambiguously-campaignrelated requirement that was occurring, repeatedly stating that ads that are not the functional

equivalent of express advocacy under the appeal-to-vote test are to be free from both “restriction”

and “regulation.” 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

SJ Memo 18

ads, like WRTL’s, that are neither express advocacy nor its functional equivalent.”), 2672 (corporate-form corruption interest does not “extend[] beyond campaign speech”), see also McConnell,

540 U.S. at 167, 170 (First Amendment activity must “benefit directly federal candidates” for corruption interest to exist under intermediate scrutiny). And any tailoring analysis as to the relation

of a restriction to the governmental interest in regulating corruption relating to elections must logically establish that the restriction has a close and clear nexus to elections. Cf. Buckley, 424 U.S.

at 80 (“too remote” statement may be viewed as either a threshold test or as a tailoring analysis).

The unambiguously-campaign-related requirement mandates that the Disclosure Requirements not be applied to ordinary “political speech,” WRTL II, 127 at 2659, because such speech is

not unambiguously campaign related. WRTL II requires that ordinary political speech—communications that are neither express advocacy nor its functional equivalent under the appeal-to-vote

test—must be free from all electioneering communication “regulation,” not just the electioneering

communication prohibition.

19 From the way that WRTL II was decided, it is clear that the Court

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not the functional equivalent of express advocacy.”); 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”).

20The nature of WRTL was argued in the Brief of Family Research Council, Free Market

Foundation, and Home School Legal Defense Association as Amici Curiae in Support of

Appellee, WRTL II, 540 U.S. 93, prepared by the Stanford Constitutional Law Center, which

argued that all nonprofits should be exempted from the electioneering communication prohibition because the government had no corporate-form interest as applied to nonprofits. The nature

of the funds that WRTL proposed to use for its ads, if necessary to obtain judicial relief, was

raised in Count II of WRTL’s complaint, which offered to use funds from a separate bank

account containing only funds raised for the purpose from individuals, which option would have

eliminated the corporate-form interest.

21Only corporations (and unions for parity) are prohibited from making electioneering

communications, based on the corporate-form interest. See McConnell, 540 U.S. at 205.

SJ Memo 19

was deciding the case based on the nature of the communication (which has broad ramifications),

not the nature of WRTL (which would apply only in the Prohibition context). The Court could

have ruled for WRTL based on (1) the nature of WRTL, (2) the nature of the funds used, or (3)

the nature of the ads. The Court chose to decide on the basis of the nature of the ads, although all

three options were argued.20 A decision based on the nature of WRTL or of its funds would

necessarily have addressed the applicability of the corporate-form interest, i.e., whether there

could be a prohibition.21 WRTL II’s decision based on the nature of the ads addresses the proper

scope of the electioneering communication, i.e., are these ads the functional equivalent of express

advocacy, which is unambiguously campaign related? WRTL argued that its ads were not the

functional equivalent of express advocacy. The Court agreed. Even when WRTL II addressed the

corporate-form interest, it did so based on the nature of WRTL’s ads, not the nature of WRTL:

“We hold that the interest recognized in Austin [v. Mich. State Chamber of Commerce, 494 U.S.

652 (1990),] as justifying regulation of corporate campaign speech and extended in McConnell to

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22WRTL II would not be expected to construe phrases of the “electioneering communication”

definition II because McConnell decided that the “definition of ‘electioneering communication’

raises none of the vagueness concerns that drove our analysis in Buckley,” 540 U.S. at 194, and

upheld the provisions facially. Id. at 201-02, 207. There were no vague phrases such as “relative

to” and “purpose of influencing” that Buckley construed to require express advocacy, as

McConnell noted. Id. at 191 (citations omitted).

SJ Memo 20

the functional equivalent of such speech has no application to issue advocacy of the sort engaged

in by WRTL.” WRTL II, 127 S. Ct. at 2673 (emphasis added). So although WRTL II never

formally construed the actual statutory definition of “electioneering communication” at 2 U.S.C.

§ 434(f)(3),22 its analysis went to the permissible scope of “electioneering communication,”

employing the unambiguously-campaign-related requirement that Buckley employed in the

expenditure disclosure context. Since the unambiguously-campaign-related requirement is not

limited to the Prohibition context, and arose in the disclosure context, there is no reason to limit

WRTL II’s appeal-to-vote construction of the scope of “electioneering communication” to the

Prohibition context. So all statutes concerning “electioneering communications” should be limited

to the permissible scope established by WRTL II, i.e, to communications that are the functional

equivalent of express advocacy under WRTL II’s appeal-to-vote test. Ordinary political speech is

not unambiguously campaign related and must be exempted from all regulation.

In North Carolina Right to Life v. Leake, ___ F.3d ___, No. 07-1438, 2008 WL 1903462 (4th

Cir. May 1, 2008), a federal appellate court has recently applied the unambiguously-campaignrelated requirement in a cogent, extended analysis that provides guidance for the present application of it. Leake dealt with both the express advocacy test and the major purpose test, as governing

applications of the unambiguously-campaign-related requirement. Leake expressly anchored its

analysis in Buckley’s requirement that “campaign finance laws may constitutionally regulate only

those actions that are ‘unambiguously related to the campaign of a particular . . . candidate.’” 2008

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SJ Memo 21

WL 1903462, at *5 (quoting Buckley, 424 U.S. at 80). The Fourth Circuit first applied this

requirement to the question of “whether North Carolina’s method for determining if a communication ‘supports or opposes the nomination or election of one or more clearly identified candidates’ unconstitutionally regulates issue advocacy.” Id. at *3. The court noted that the Supreme

Court has only recognized two categories of communications meeting the unambiguouslycampaign-related requirement, namely, express advocacy and the functional equivalent of express

advocacy as determined under WRTL II’s appeal-to-vote test. Id. at *5-7. Noting that the support/oppose test at issue fit neither category, the court held it unconstitutional for “stray[ing] too

far from the regulation of elections into the regulation of ordinary political speech,” which is

“democracy’s lifeblood.” Id. at *8. The court wrote that only the Supreme Court’s two carefully

defined categories (express advocacy and its functional equivalent) “struck [the proper] balance”

and “ensured that potential speakers would have clear notice as to what communications could be

regulated, ensuring that political expression would not be chilled.” Id. Deciding that the support/oppose test was not amenable to the saving “express advocacy” construction, id. at *8-9, the

Fourth Circuit held that the support/oppose provision “‘unquestionably chill[s] a substantial

amount of political speech’ and declar[ed] the statute unconstitutionally overbroad and vague” on

its face. Id. at *9 (quoting WRTL II, 127 S. Ct. at 2666).

Leake next considered North Carolina’s PAC definition, which in relevant part imposed PAC

burdens on groups making or receiving “‘contributions’” or making “‘expenditures’” and having

“‘a major purpose to support or oppose the nomination or election of one or more clearly

identified candidates.’” Id. at *10 (citation omitted). The Fourth Circuit’s “analysis . . . beg[an] at

precisely the same point,” i.e., Buckley’s unambiguously-campaign-related requirement, id. at *11,

which it held requires that the test for PAC status be “the major purpose,” not “a major purpose,”

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23McConnell’s use of “ important state interests” in its facial analysis of the Disclosure

Provisions, 540 U.S. at 196, is not to the contrary because it was simply using a synonym for

what were necessarily “compelling state interests” since Buckley employed strict scrutiny.

SJ Memo 22

of the organization. Id. This test “is best understood as an empirical judgment as to whether an

organization primarily engages in regulable, election-related speech,” which “ensure[s] that the

burdens facing a political committee largely f[a]ll on election-related speech, rather than on protected political speech.” Id. The Leake decision also contains a helpful discussion of the constitutional first-principles underlying the unambiguously-campaign-related requirement.

In addition to the unambiguously-campaign-related requirement, strict scrutiny governs the

constitutional analysis in the present case. Buckley required “exacting scrutiny” of disclosure

provisions, 424 U.S. at 64, which it referred to as the “strict test,” id. at 66, and by which it meant

“strict scrutiny.” See WRTL II, 127 S. Ct. at 2669 n.7 (Buckley’s use of “exacting scrutiny,” 424

U.S. at 44, was “strict scrutiny.”); see also McIntyre v. Ohio Elections Commission, 514 U.S. 334

(1995) (disclaimer case) (“When a law burdens core political speech, we apply ‘exacting scrutiny,’ and we uphold the restriction only if it is narrowly tailored to serve an overriding state

interest. See, e.g., [First National Bank of Boston v. ]Bellotti, 435 U.S. [765], 786 [(1978)].”);

Bellotti, 435 U.S. at 786, 795 (“exacting scrutiny” is strict scrutiny).23

In sum, this case is governed by the Buckley-WRTL II analysis, which requires that campaign

finance laws reach only communications that are unambiguously campaign related. In the

electioneering communication context, this requirement is only met by communications that both

fit the statutory definition and are the functional equivalent of express advocacy under WRTL II’s

appeal-to-vote test. The burden is on the government to justify the Disclosure Requirements by

proving both that Congress has a compelling interest in regulating speech that is not unambiguously campaign related and that the Disclosure Requirements are narrowly tailored to such an

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SJ Memo 23

interest—all as applied to the communications at issue here. And the FEC has the burden of

proving that Hillary is unambiguously campaign related under WRTL II’s appeal-to-vote test so

that it may be prohibited.

II. McConnell Did Not Preclude As-Applied Challenges.

In its memorandum denying preliminary injunction, this Court said that McConnell precluded

as-applied challenges to the Disclosure Requirements, i.e., while McConnell “left open the issue

that was presented in WRTL, reserving it for decision on an as-applied basis,” the Disclosure

Requirements were “sustained” as to “the ‘entire range of electioneering communications.’

Citizens’s advertisements obviously are within that range.” Doc. 38 at 11 (citation omitted).

The Supreme Court unanimously rejected just such an argument in WRTL I, 546 U.S. 410. In

that case, the FEC had also urged that certain language in McConnell precluded all as-applied

challenges to the electioneering communication Prohibition. The Court, within a week of oral

argument, reversed:

We agree with WRTL that the District Court misinterpreted the relevance of our

“uphold[ing] all applications of the primary definition” of electioneering communications.

[540 U.S.] at 190, n. 73. Contrary to the understanding of the District Court, that footnote

merely notes that because we found BCRA’s primary definition of “electioneering

communication” facially valid when used with regard to BCRA’s disclosure and funding

requirements, it was unnecessary to consider the constitutionality of the backup definition

Congress provided. Ibid. In upholding § 203 against a facial challenge, we did not purport

to resolve future as-applied challenges. [546 U.S. at 411-12.]

The Court did so in the face of (a) the FEC’s argument that the logic of the electioneering

communications prohibition precluded exceptions and (b) broadly-worded facial-analysis

language in McConnell to the effect that the Court had “uph[eld] stringent restrictions on all

election-time advertising that refers to a candidate because such advertising will often convey [a]

message of support or opposition.” 540 U.S. at 239 (emphasis in original). Such broad language

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SJ Memo 24

about “all” electioneering communications being subject to prohibition because some were

unambiguously campaign related did not mean that the Court would not protect ordinary political

speech, or issue advocacy, in an as-applied challenges.

WRTL I may, in fact, be viewed in the context of the Roberts Court’s encouragement of asapplied challenges. See, e.g., Gonzales v. Carhart, 127 S. Ct. 1610 (2007) (upholding federal

partial-birth abortion ban; “In these circumstances the proper means to consider exceptions is by

as-applied challenge.”); Washington State Grange v. Washington State Republican Party, 128 S.

Ct. 1184 (2008) (upholding Washington’s open primary system against facial challenge but

leaving open “as applied challenge[s]”); Crawford v. Marion County Election Board, 128 S. Ct.

1610 (2008) (insufficient evidence to sustain facial challenge to Indiana’s voter identification

law). The Supreme Court has, of course, allowed greater flexibility in bringing facial challenges,

such as McConnell, in the First Amendment context, but this special solicitude for First Amendment cases heightens the ability to bring as-applied challenges rather than reducing the possibility.

WRTL II reiterated the Court’s rejection of the notion that “McConnell left ‘no room’ for as

applied challenges,” 127 S. Ct. at 2659 (citation omitted), and protected issue advocacy by

applying the appeal-to-vote test to implement the unambiguously-campaign-related requirement

as applied to the electioneering communication Prohibition. Id. at 2667. Therefore, any broadlyworded facial-analysis language in McConnell’s discussion of the Disclosure Requirements means

neither that the present as-applied claim is precluded nor that it has already been decided by the

logic of McConnell. Moreover, McConnell itself warned against an overbroad reading of the

language of a particular case: “We have long rigidly adhered to the tenet never to formulate a rule

of constitutional law broader than is required by the precise facts to which it is to be applied for

the nature of judicial review constrains us to consider the case that is actually before us,” 540 U.S.

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SJ Memo 25

at 192 (citation and quotation indicators omitted).

McConnell did not “purport to resolve future as-applied challenges” with regard to the

present challenge, which is based on the proper scope of the same “electioneering communication” definition in the disclosure context. McConnell’s facial upholding of the Disclosure

Requirements as to the “entire range of electioneering communications” does not rightly include

those held not to be the functional equivalent of express advocacy under WRTL II’s appeal-to-vote

test. WRTL II, 127 S. Ct. at 2667. McConnell’s analysis of the Disclosure Requirements did not

even address the distinction between ads that are the functional equivalent of express advocacy

and “political speech” or “issue advocacy,” let alone decide whether Congress could require

disclosure as to communications that are not truly electioneering. But from the discussion in Part

I, it is clear that, after WRTL II’s narrowing of the scope of regulable “electioneering communications,” McConnell’s upholding of the Disclosure Requirements for electioneering communications should now apply only to ads that are truly the functional equivalent of express advocacy

under WRTL II’s appeal-to-vote test. Finally, it is doubtful that Congress ever intended that

disclosure be required beyond whatever scope the Supreme Court might impose on “electioneering communication” to save it from overbreadth.

III. Disclosure Imposes Substantial Burdens.

As noted in the Introduction, this Court said that Citizens had not provided evidence that

there would be “reprisals,” so that it was not within the class of socially disfavored groups that are

free from any disclosure as to contributors. Doc. 38 at 12. As the FEC was urging this interpretation of what Citizens was asserting, it is not surprising that the Court might think that this was

Citizens’ argument, but it is not. Citizens only challenges here disclosure as to communications

that are not unambiguously campaign related, not as to those that are. Citizens believes that it and

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SJ Memo 26

its donors must be free of any burden for choosing to associate for the purpose of amplified,

collective speech that is not unambiguously campaign related under WRTL II’s appeal-to-vote test.

Citizens asserts that disclosure imposes its own unique burdens that are real and recognized

in precedent as always essential to the constitutional analysis of any disclosure provision. Among

these are fear of reprisal and a reduction in donors and donations. So no court should apply

cursory review because only “mere” disclosure is at issue. In fact, Buckley rejected any notion that

“mere” disclosure imposes no substantial First Amendment burden by subjecting the expenditure

disclosure provision at issue in that case to strict scrutiny. See supra at 22.

And Buckley plainly recognized the inherent burdens of compelled disclosure on freedom of

speech and association: “We have long recognized that significant encroachments on First

Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere

showing of some legitimate governmental interest.” Buckley, 424 U.S. at 64 (emphasis added).

“The Court’s decisions involving associational freedoms establish that the right of association is a

‘basic constitutional freedom’ (citation omitted) that is ‘closely allied to freedom of speech and a

right which, like free speech lies at the foundation of a free society.’” Id. at 25. Buckley recognized this concern as inherent in compelled disclosure (whether or not it rises to the level of

harassment proven by certain historically unpopular groups to wholly exempt them from disclosure) because “compelled disclosure, in itself, can seriously infringe on privacy of association and

belief guaranteed by the First Amendment.” Id. at 64 (emphasis added). Buckley recognized an

inherent risk of a “deterrent effect,” id. at 65, and the fact that disclosure is inherently an “invasion of privacy.” Id. at 66. And Buckley concluded its strict scrutiny of the disclosure provisions at

issue by expressly repeating these inherent burdens and stating that they must be considered in the

constitutional analysis when considering disclosure:

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SJ Memo 27

It is undoubtedly true that public disclosure of contributions to candidates and political

parties will deter some individuals who otherwise might contribute. In some instances,

disclosure may even expose contributors to harassment or retaliation. These are not

insignificant burdens on individual rights, and they must be weighed carefully against the

interests which Congress has sought to promote by this legislation. [Id. at 68 (emphasis

added).]

And Chief Justice Burger responded to this statement of the majority with examples:

Examples come readily to mind. Rank-and-file union members or rising junior executives

may now think twice before making even modest contributions to a candidate who is

disfavored bythe union or management hierarchy. Similarly, potential contributors may well

decline to take the obvious risks entailed in making a reportable contribution to the opponent

of a well-entrenched incumbent. This fact of political life did not go unnoticed by the

Congress:

“The disclosure provisions really have in fact made it difficult for challengers to challenge

incumbents.” 120 Cong. Rec. 34392 (1974) (remarks of Sen. Long). [Buckley, 424 U.S.

at 237 (Burger, C.J., concurring in part and dissenting in part).]

In McIntyre, 514 U.S. 334, the Supreme Court again recognized the reality of disclosure

burdens: “The decision in favor of anonymity may be motivated by fear of economic or official

retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s

privacy as possible.” Id. at 342-43. “On occasion, quite apart from any threat of persecution, an

advocate may believe her ideas will be more persuasive if her readers are unaware of her

identity.” Id. at 343.

In 2003, the D.C. Circuit accepted affidavits from labor organizations stating “that releasing

the names of hundreds of volunteers, members, and employees will make it more difficult for

the organization to recruit future personnel” against the FEC assertion that this was “speculative,” AFL-CIO v. FEC, 333 F.3d 168, 176 (D.C. Cir. 2003), applied strict scrutiny, id., and

stopped release of this (and other) information by striking down an FEC rule requiring public

release of all investigation materials upon conclusion of an investigation. Id. at 179.

So Citizens does not have to prove disclosure burdens because they are already recognized

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SJ Memo 28

as a matter of law in binding precedent. However, Citizens has provided an illustration of the

disclosure costs already recognized and affirmed its reasonable belief that it will be subject to

similar loss of donors and donations and that retaliation is a concern—in addition to the inherent

“invasion of privacy.” In the Amended Verified Complaint, Citizens illustrated the concern that

donors may be subject to various forms of retaliation by political opponents with a news account

particularly relating to President and Senator Clinton. Doc. 22 at ¶ 23 (SUMF ¶ 35). Citizens’

President also verified that the Disclosure Requirements “will, in Citizens United’s belief based

on long experience, substantially reduce the number of donors and amount of donations to

Citizens United because many potential donors do not wish to be publicly so identified for a

variety of legitimate reasons.” Id. at ¶ 27 (SUMF ¶ 39).

Evidence of such burdens was put in the McConnell record by the National Rifle Association, the Associated Builders and Contractors, the Associated General Contractors of America,

the U.S. Chamber, and the ACLU. McConnell v. FEC, 251 F. Supp. 2d 176, 227-29 (D.D.C.

2003) (per curiam). The evidence ranged from large numbers of contributions at just below the

disclosure trigger amount, to vandalism after disclosure, to non-contribution because of

concerns about a group’s ability to retain confidentiality, to concerns about employers, neighbors, other business entities, and others knowing of support for causes that are not popular

everywhere and the results of such disclosure. Id.

A 2003 law review article provides many helpful insights into the privacy costs of disclosure, including autonomy and dignity costs and a chilling effect. William McGeveran, Mrs.

McIntyre’s Checkbook: Privacy Costs of Political Contribution Disclosure, 6 U. Pa. J. Const. L.

1 (2003). The author noted the popularity of disclosure provisions “despite two countervailing

trends.” Id. at 2. “First, is the rising concern in nearly every other area of the law about informaCase 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 35 of 64
SJ Memo 29

tion privacy.” Id. Second, are “recent Supreme Court decisions about anonymous political

activity.” Id. at 3 (citing, inter alia, McIntyre, 514 U.S. 334). The article concluded that

“excessive disclosure is an unwise policy,” id. at 7, noting that everything has changed with the

glut of readily-searchable, digitized information:

Because of combined cultural and technological forces, we now live in an age when

everyone from prospective employers to prospective dates conducts do-it-yourself background checks with Internet search engines. Dramatically increased computerization has

created digitized archives of personal data that are larger, more publicly accessible, and

more easily searched and analyzed than ever before. In the last five years, campaign

contribution disclosure suddenly joined the trend of online compilation and availability.

this change in technology qualitatively transformed the nature of disclosure laws. No

longer can a contributor assume that disclosed information is unlikely to be seen by

anyone. The law remains the same, but its effect is entirely different. [Id. at 11-12.]

The same article identified “two intertwined privacy costs” of disclosure. Id. at 16. “The

concrete costs occur when disclosure leads to specific negative results for the contributor.” Id.

“Individuals also have a direct but abstract interest in shaping their identity in the world, rooted

in rights of dignity and autonomy.” Id. Among the concrete costs, the author notes that disclosure could “bear negative consequences on many professions. Those who rely on trust and

identification with others to do their work—such as ministers, psychotherapists, or schoolteachers—may find their roles undermined if congregants, patients, or parents know and judge

their personal political activity.” Id. Journalists, judges, and gays in the military are others who

are mentioned in the article as persons for whom “professional penalties [resulting from

disclosure] are a significant deterrent against contributing for persons with few other options for

political expression.” Id. at 17-18. “The conversion of political information to unwanted

commercial purposes” is another problem detailed. Id. at 18. The author cites Charles Fried for

the argument “that the formation of relationships, an essential aspect of autonomy, requires that

an individual control the selective revelation of personal information to others.” Id. at 19

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SJ Memo 30

(citation omitted). And the article notes that “the fragmentary information derived from

disclosure reports could be quite misleading,” citing examples of giving to a conservative

religious group to support one, but not all, of its agenda items or giving “to a liberal Democrat

because your brother went to school with him.” Id. (citation omitted).

The same 2003 article notes that “[t]here is very little empirical evidence to determine how

often or how much the prospect of disclosure discourages would-be campaign contributors,” but

goes on to note that “the Supreme Court’s anonymity cases require virtually no empirical

showing.” Id. at 21 (citations omitted). And the author notes that the chilling would fall

disproportionately on “unpopular or unconventional” causes, id. at 22, and that “[r]obust public

debate costs money,” id. at 23, so that such causes would be shut out of the debate.

In a 2007 article, Bradley Smith, former FEC Chairman, argued for raising the level at

which contributor disclosure is required, because of the “invasion of privacy,” the risk of

“retaliations by vengeful politicians,” and because “mandatory disclosure at low levels may

actually decrease whatever utility disclosure generally has.” Bradley A. Smith, A Moderate,

Modern Campaign Reform Agenda, 12 NEXUS 3 (2007).

Also in 2007, the Institute for Justice commissioned a public opinion survey that fills the

empirical evidence gap noted above and provides valuable illustrations of the burdens of

disclosure in the context of ballot initiatives. See Dick M. Carpenter II, Disclosure Costs:

Unintended Consequences of Campaign Finance Reform (2007) (available at http://www.ij.org/

publications/other/disclosurecosts.html). A central finding was that disclosure is popular “for

thee, but not for me.” Id. at 7. Fifty-six percent of respondents objected to having their name and

address posted on the Internet as a contributor, and seventy-one percent objected to having their

employer’s name listed. Id. Sixty percent said they would think twice about contributing if their

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SJ Memo 31

name and address would be disclosed, and forty-nine percent said the same if their employer

were reported. Id. Numerous individual comments are included in the report, such as “I would

never want my employer to know who I give money to” and “Because that would jeopardize my

job.” Id. at 9.

Brian Dougherty has written two articles on disclosure costs that were published online at

www.reason.com. In the first he wrote of the unintended consequences of California’s postWatergate Political Reform Act, which mandated severe disclosure burdens. Brian Dougherty,

Disclosure Flaw, reasononline, Mar. 1996 (available at http://www.reason.com/news/printer/

29856.html). “Twenty years later,” he wrote, “the same law is being used to strike at private

citizens who attempted to discipline a powerful politician they considered arrogant and corrupt.”

Id. at 1. According to the article, California had just imposed an $808,000 fine (the largest ever)

on Russell Howard and Steve Cicero (president and treasurer) of Californians Against Corruption, a small grassroots organization that only spent $103,091 in an unsuccessful effort to, inter

alia, oust by recall a powerful state senator whom they considered to be corrupt. In the flurry of

activity and with few resources, CAC had trouble keeping up with the reporting of the name,

address, occupation, and employer of anyone contributing over $100. The information was

always requested, but contributors did not always follow up with the needed information.

California’s Fair Political Practices Commission levied the maximum $2,000 per violation for

each failure to provide a piece of the required information, even though the total was about eight

times the total amount spent and most of the contributors’ addresses were provided on copies of

the checks given to the FPPC. The FPPC seemed unfazed by the fact that the second and third

largest fines before ($772,000 and $447,500) involved money laundering, not a nonpartisan

recall campaign. These two citizens lacked the funds to even come close to paying the outraCase 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 38 of 64
SJ Memo 32

geous fine, and one of them was quoted as saying that the “prerequisites for the exercise of First

Amendment rights [were] extremely complicated” and burdensome.

In another article, Dougherty returned to the same subject after the passage of BCRA,

recounting the CAC’s travails. Brian Dougherty, How campaign finance law hurts participation

in politics, reasononline, Apr. 2001 (available at http://www.reason.com/news/printer/

32341.html). He added the information that “[t]he FPPC explicitly stated as an aggravating

factor that Howard told a newspaper reporter that ‘the little guy can’t participate [in politics]

without running afoul of technical violations.’” Id. at 2. Dougherty put these disclosure costs in

perspective: “Anyone who believe there is too much political influence by wealthy interests and

not enough by citizens should think about the fate of Howard and Cicero and ask themselves:

Can there be anything good about laws that take away everything a citizen has merely because

he didn’t file paperwork on time with the government?” Id. at 3. The author added that “Howard

and Cicero thought that in America if you wanted to get involved in politics, you were free to

get involved. They didn’t realize that you would have to satisfy a complicated and picayune set

of government paperwork requirements at risk of your entire future to do so.” Id.

So there is no “mere” disclosure. The costs are real and recognized and must be considered

in the strict scrutiny of the Disclosure Requirements. While some reasonable level of disclosure,

with reasonable enforcement penalties, may be constitutionally permissible as to First Amendment activity that is unambiguously campaign related, there is no constitutional warrant to

impose these real burdens on citizens engaging in communications that are clearly not unambiguously campaign related under WRTL II’s appeal-to-vote test. Citizens must be free to participate robustly, without limit, and without a second thought in ordinary political speech.

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24While it is not necessary to decide the present case, the court should note that in the context

of commercial transactions there are particular problems with reporting donors because both

sales and investments may generate income to the sponsoring corporation that would be

reportable as contributions, although those buying products or making investments have no

connection whatever to elections.

SJ Memo 33

IV. The Disclosure Requirements and Prohibition Are Unconstitutional as Applied.

For the reasons stated below, neither Citizens’ Ads nor Hillary: The Movie are unambiguously campaign related under WRTL II’s appeal-to-vote test. So they are ordinary political

speech that may not be regulated or restricted.

A. The Ads Are Not Unambiguously Campaign Related.

As noted above, supra at 4, the FEC has already acknowledged that none of the Ads

contains an appeal to vote under WRTL II’s test. Necessarily then, they are not unambiguously

campaign related. So Congress lacks authority to regulate them by imposing the Disclosure

Requirements. The Disclosure Requirements “do[] not advance a legitimate governmental

interest significant enough to justify [their] infringement of First Amendment rights.” CARC,

454 U.S. at 298. The Disclosure Requirements are unconstitutional as applied to these Ads and

any communications that meet the statutory electioneering communication definition but are

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

specific candidate.” WRTL II, 127 S. Ct. at 2667.24

B. Hillary Is Not Unambiguously Campaign Related.

As set out in briefing opposing [FEC]’s Motion to Dismiss Counts 3 & 4 of the Amended

Complaint (Doc. 43), Citizens documentary movie is also not unambiguously campaign related.

Therefore it may neither be prohibited (Count 3) nor subjected to the Disclosure Requirements

(Count 2). Both the Prohibition and Disclosure Requirements are unconstitutional as applied to

the documentary because:

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SJ Memo 34

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

specific candidate,” as required by WRTL II, 127 S. Ct. at 2667 (emphasis added);

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

against a specific candidate,” id. at 2670 (emphasis added), i.e., it is a full-length documentary movie (shown in theaters and sold on DVD) that is the functional equivalent of a book,

not of the “ads” that were the target of BCRA and constituted the evidence considered in

McConnell, 251 F. Supp. 2d 176, and McConnell, 540 U.S. 93;

• the challenged provisions are unconstitutional as applied to a full-length movie that is the

functional equivalent of a book, not an “ad.”

In their argument for dismissing Count 3, FEC counsel argued that this Court “noted” that

Hillary “is the functional equivalent of express advocacy,” Doc. 43 at 6 (citation omitted),

although, of course, that was for preliminary injunction purposes. The FEC acknowledges that

WRTL II’s appeal-to-vote test, 127 S. Ct. at 2667, governs whether Hillary may be prohibited as

an electioneering communication, Doc. 43 at 6, 10, but proceeded to misinterpret and misapply

WRTL II’s test by missing the following points.

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

“[A] court should find that an ad is the functional equivalent of express advocacy only if the ad

is susceptible of no reasonable interpretation other than as an appeal to vote for or against a

specific candidate.” 127 S. Ct. at 2667 (emphasis added). See also id. at 2670 (“Because

WRTL’s ads may reasonably be interpreted as something other than as an appeal to vote for or

against a specific candidate, we hold they are not the functional equivalent of express advocacy.” (emphasis added)). See infra at 37-38 (nature of “appeal to vote”).

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

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SJ Memo 35

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

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

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

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

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

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

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

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

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

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

dissolving-distinction problem that the Court had earlier identified, in Buckley, 424 U.S. 1. See

supra at 10, 14. WRTL II mentioned this dissolving-distinction problem twice, emphasizing its

vital importance to the Court’s First Amendment jurisprudence in this area. 127 S. Ct. at 2659,

2669. The dissolving distinction that required a bright, speech-protective line was the distinction

between (1) “discussion of issues and candidates,” which is present in Hillary, and (2) “advocacy of election or defeat of candidates,” which is absent from Hillary. Buckley, 424 U.S. at 42.

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

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

Hillary)—to protect issue advocacy, id. at 43, or what WRTL II called “political speech.”

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

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

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

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

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SJ Memo 36

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

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

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

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

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

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

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

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

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

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

2667. This is not a grassroots lobbying case, so it is unsurprising that there is no such single,

central issue throughout the documentary as would be expected with grassroots lobbying. But,

the documentary does contain the type of political speech that intermingles “discussion of issues

and candidates,” see supra, which is equally protected by the WRTL II test.

So the issue that must be decided is whether there are actual words in Hillary that contain

WRTL II’s required unambiguous “appeal to vote,” also known as “advocacy of election or

defeat of candidates” or “solicitation,” which may not be confused with protected “discussion of

issues and candidates” or “discussion, laudation, [and] general advocacy.” See supra. The

requirement that there be actual words advocating a vote is not a conflation of the appeal-to-vote

test with the express-advocacy test by requiring magic words. While it is clear in the wake of

McConnell and WRTL II that the express advocacy test requires “magic words” (e.g., “vote

for”), see McConnell, 540 U.S. at 126; WRTL II, 127 S. Ct. at 2669 n.7), McConnell and WRTL

II approved a highly-limited extension of congressional ability to regulate communications

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SJ Memo 37

beyond magic words. Central to this new class of “electioneering communications” is the

requirement that they contain an “appeal to vote.” WRTL II, 127 S. Ct. at 2667. It must not be

assumed that this choice of words happened haphazardly. Rather, WRTL II’s language was

carefully chosen to go beyond “vote for” but not beyond words clearly advocating a vote.

It is instructive to compare and contrast the appeal-to-vote test with the Ninth Circuit’s

attempt, in FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987), to frame an express-advocacy test

that went beyond the magic words. Of course, as noted above, McConnell and WRTL II made it

clear that express advocacy requires the magic words, so no other express-advocacy test is now

permissible and Furgatch is a dead letter. But Furgatch illuminates the outer limit of an effort to

permit government regulation beyond magic words, a limit that WRTL II clearly drew back from

at points and did not in any way go beyond. Furgatch dealt with a newspaper ad that concluded

with these words concerning President and candidate Jimmy Carter: “It is an attempt to hide his

own record, or lack of it. If he succeeds the country will be burdened with four more years of

incoherencies, ineptness and illusion, as he leaves a legacy of low-level campaigning. DON'T

LET HIM DO IT.” Id. at 858. The Ninth Circuit adopted the following express-advocacy test:

We conclude that speech need not include any of the words listed in Buckley to be express

advocacy . . . , but it must, when read as a whole, and with limited reference to external

events, be susceptible of no other reasonable interpretation but as an exhortation to vote

for or against a specific candidate. This standard can be broken into three main components. First, even if it is not presented in the clearest, most explicit language, speech is

“express” for present purposes if its message is ummistakable and unambiguous, suggestive of only one plausible meaning. Second, speech may only be termed “advocacy” if it

presents a clear plea for action, and thus speech that is merely informative is not covered

by the Act. Finally, it must be clear what action is advocated. Speech cannot be “express

advocacy of the election or defeat of a clearly identified candidate” when reasonable minds

could differ as to whether it encourages a vote for or against a candidate or encourages the

reader to take some other kind of action. [Id. at 863-64 (emphasis added.]

In its appeal-to-vote test, WRTL II rejected any reliance on “external events,” requiring that

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25Even before McConnell and WRTL II effectively overruled Furgatch, the Ninth Circuit

made clear that some express words of advocacy were required under the Furgatch express advocacy test: “a close reading of Furgatch indicates that we presumed express advocacy must contain some explicit words of advocacy. See id. at 864 (noting that ‘context cannot supply a meaning that is incompatible with, or simply unrelated to, the clear import of the words’). ‘Context,’

we emphasized, ‘remains a consideration, but an ancillary one, peripheral to the words themselves.’ Id. at 863.” California Pro-Life Council v. Getman, 328 F.3d 1088, 1098 (9th Cir. 2003)

(emphasis in original).

SJ Memo 38

the objective words of the communication itself must be the focus. 127 S. Ct. at 2666. Of

course, an electioneering communication by definition is broadcast near an election, identifies a

candidate, and targets the candidate’s constituents, so there is a built-in relevant context. Like

WRTL II, Furgatch mandated that the message must be “unambiguous” and that all doubts are

resolved in favor of the speaker. And just as WRTL II requires an unambiguous “appeal to vote,”

Furgatch mandated “an exhortation to vote,” which must be a “clear plea for action” that

“encourages a vote.”25 In Furgatch, the Ninth Circuit decided that “Don’t let him do it!” was

such a clear plea for action that constituted an unambiguous exhortation to vote without saying

“vote against.” WRTL II was not endorsing a test going beyond the controversial Furgatch

decision, so the “appeal to vote” language of the WRTL II test must be taken at least as seriously

as the Ninth Circuit took its “exhortation to vote” or “clear plea for action” requirement.

In arguing for dismissal of Count 3, FEC counsel set out a laundry list of quotations from

Hillary, Doc. 43 at 6-9, that they believe all add up to the conclusion that Hillary is “susceptible

of no reasonable interpretation other than as an appeal to vote against her.” Id. at 10. But they

pointed to no quotation that actually has words containing an unambiguous “appeal to vote.”

There is no “exhortation to vote,” nor a “clear plea for action” that “encourages a vote,” nor

even a “Don’t let her do it!” None of the FEC’s cited quotations contains the requisite “appeal to

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

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 45 of 64
SJ Memo 39

by FEC counsel to add up to “an appeal to vote”—based apparently on forbidden considerations—but whether there are words that contain an unambiguous “appeal to vote.” Under the

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

cumulative result they individually lack. A series of zeroes totals nothing.

Hillary also “may reasonably be interpreted as something other than as an appeal to vote,”

WRTL II, 127 S. Ct. at 2670 (emphasis added). A reasonable interpretation is that it is a fulllength, documentary movie about Senator Clinton, and such a movie enjoys all the protection

historically afforded to any book about a public figure. Hillary is the functional equivalent of a

book, not of the 30- or 60-second ads that were the target of Congress in BCRA and at issue in

McConnell. The fact that it is in the medium of a documentary film that can be viewed in a

theater, brought home on a DVD, or watched on television does not vitiate the historical protection afforded to books and their modern equivalents. If the difference in medium matters when it

comes to First Amendment protection for the functional equivalent of a book, then the government could freely engage in high-tech “book burnings” without restriction.

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

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

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

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

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

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

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

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

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

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 46 of 64
SJ Memo 40

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

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

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

regarding BCRA’s disclosure provisions (including findings concerning the FEC’s expert testimony), the court consistently spoke of “ads” and “advertisements,” never movies. See id. at 229-

33. Similarly, the three separate opinions are replete with references to “ads” and “advertisements,” but not movies. Judge Leon specifically identified sham issue ads as the BCRA target:

“In an attempt to prevent actual and apparent corruption arising from the funding of such sham

issue advertisements, Congress enacted a sweeping set of reforms . . . .” Id. at 757 (op. of Leon,

J.) (emphasis added). And he cited the studies on which the government relied to defend the

electioneering communications prohibition, which studies only examined advertisements (both

“genuine” and “sham”). Id. at 796-97. Judge Henderson’s factual findings specifically pointed to

a 30-minute NRA “infomercial” and two 30-minute “news magazine[s]” that would have been

captured by the “electioneering communication” definition, but which the studies on which the

government relied failed to include, and which she said would have altered the percentage of

genuine issue ads captured (for she considered them genuine issue advocacy) as compared to

sham issue ads captured (for substantial overbreadth analysis). Id. at 305-06, 316-17 (op. of

Henderson, J.). Judge Kollar-Kotelly’s opinion likewise confirmed that the studies offered to

justify BCRA’s electioneering communications restrictions were based on “advertisements.”

See, e.g., id. at 719-24 (op. of Kollar-Kotelly, J.).

A full-length documentary movie shown in theaters, sold on DVD, with a compendium

book on which Citizens has received an advance royalty on sales, SUMF ¶ 23, is not the same as

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SJ Memo 41

an “ad,” or even an “infomercial” or a “news magazine” (which are generally not also shown in

theaters and sold as movies on DVDs), even if the movie is broadcast. Given McConnell’s focus

and record, there is no justification for treating a full-length documentary movie—especially one

with neither express advocacy nor “an appeal to vote”—as in any way being “the functional

equivalent of express advocacy.” WRTL II, 127 S. Ct. at 2667. The problem that McConnell

identified as being a compelling justification for the electioneering communication prohibition

had to do with ads, not movies. 540 U.S. at 126-28. There was no record evidence that movies

were a problem, so neither McConnell nor the studies (of ads) on which it relied provide any

support for applying the Disclosure Requirements or Prohibition to a full-length movie.

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

unprotected “sham issue ad” any more than Michael Moore’s criticisms of President George W.

Bush in Fahrenheit 9/11 make his movie a “sham issue ad.” Movies were simply not at issue in

McConnell and they may “reasonably be interpreted as something other than as an appeal to

vote for or against a specific candidate”—i.e., they are about the traditional First Amendment

goals of communicating ideas and viewpoints, discussing public figures and issues, and

(usually, it is hoped) making money by sales—so they “are not the functional equivalent of

express advocacy, and therefore fall outside the scope of McConnell’s holding.” Id. at 2670.

The fact that Citizens would pay a fee in connection with the broadcasting of Hillary does

not change the fact that Hillary is the functional equivalent of a book, not an ad. See SUMF

¶ 41. As a matter of law, the presence or absence of a fee has nothing to do with whether a

communication is or is not an “electioneering communication.” Initially, the FEC promulgated a

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

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

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 48 of 64
SJ Memo 42

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

04-5352 (D.C. Cir. Oct. 21, 2005), and the FEC issued a new rule indicating that the payment of

a fee was irrelevant. See 70 Fed. Reg. 75713. And the historically-recognized constitutional

protection afforded to books under freedoms of speech and press has also never turned on

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

publisher to foot the bill. In book publishing there are a variety of arrangements for publication—from self-publishing, to sharing expense and risk with a publisher, to arrangements where

a publisher pays all of the costs—and there is a wide range of agreements as to the payment of

royalties. For constitutional purposes, self-published books have all of the First Amendment

protection afforded books entirely funded by publishers. These same principles apply to Hillary,

the functional equivalent of a book.

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

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

books and movies, the FEC attempted, in seeking dismissal of Count 3, to substitute elements of

WRTL II’s application of its “appeal to vote” test to grassroots lobbying, which is not at issue

here. As the FEC noted, Doc. 43 at 6 n.1, Citizens has already acknowledged that Hillary

discusses elections and candidacy and that it is critical of Senator Clinton in several ways. The

FEC lists some examples. Id. at 6-9. But of course, the WRTL II test does not require that there

be no discussion of elections or candidacy in order to avoid the Prohibition, nor even that a

communication not criticize a candidate, but only that there be an unambiguous “appeal to

vote,” which is the one thing the FEC has been unable to demonstrate. Instead, the FEC has to

date made the error of attempting to substitute a particular application of the WRTL II test to a

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 49 of 64
26The safe harbor is at 11 C.F.R. § 114.15(b). It provides much of the language on which the

FEC relies in its briefing concerning whether Hillary is prohibited.

SJ Memo 43

particular set of facts in the particular context of grassroots lobbying for the test itself.

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

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

electioneering communications could not be prohibited. See supra at 16-17. In both of these

cases, the FEC and the intervenors (BCRA prime sponsors Sen. McCain et al.) agreed to a

stipulated judgment conceding that the ads at issue were protected issue advocacy under WRTL

II’s test. So there is now no question that communications stating a candidate’s position and

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

protected issue advocacy and excluded from the electioneering communication definition.

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

prohibition, although it did not concede that it fell within the FEC’s safe harbor provision,26 and

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

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

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

whether there is criticism. And when the FEC conceded that “Questions” met WRTL II’s appealto-vote test, Doc. #33 at 17, it also conceded that a communication could meet the appeal-tovote test without meeting the safe harbor factors, which is inconsistent with the FEC’s argument

using the safe-harbor factors as the reason why Hillary fails the appeal-to-vote test.

And the FEC’s argument that Hillary “‘does not focus on legislative issues,’” Doc. 43 at 9

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

in fact defined “issue advocacy,” i.e., “political speech,” without resort to a focus on a legislaCase 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 50 of 64
SJ Memo 44

tive issues: “Issue advocacy conveys information and educates. An issue ad’s impact on an

election, if it exists at all, will come only after the voters hear the information and choose—

uninvited by the ad—to factor it into their voting decisions.” 127 S. Ct. at 2667. Hillary in fact,

discusses a wide range of issues, as the FEC has noted, Doc. 43 at 9, doing so in the approved

context of the intermingled “‘discussion of issues and candidates.’” WRTL II, 127 S. Ct. at 2669

(quoting Buckley, 424 U.S. at 42). In a book or a documentary movie about a public figure, a

central issue will be that public figure—What is she like? What does she think? What has she

done?— but that has never warranted government suppression of a book since the passage of the

First Amendment, just as it may not justify suppression of a documentary movie. Talking about

and criticizing public officials is at the core of First Amendment protection.

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

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

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

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

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

This struggle of the government to silence the people continues here as BCRA sponsors,

Intervenors herein, defend the “electioneering communication” prohibition by declaring

that quashing criticism is the true intent behind the provision and thus argue that broadcast

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

position on an issue” and (b) “referred to the candidate by name.” Intervenors’ Br. at 22

(emphasis added). Intervenors’ Brief is replete with complaints about Senators being

criticized for their positions on a current legislative matter. See id. at 3, 10, 11, 15, 16, 22,

23 n.11, 24, 25 n.14, 27, 28, 36. So is the FEC’s Brief. See FEC Br. at 10, 11, 19, 20, 33,

44, 48. [Brief for Appellee at 5, WRTL II, 127 S. Ct. 2652.]

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

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

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

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SJ Memo 45

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

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

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

with ads, not full-length movies, which are the functional equivalent of protected books. The

Prohibition is unconstitutional as applied to Hillary for these reasons. And because Hillary is

not unambiguously campaign related under WRTL II’s appeal-to-vote test, the Disclosure

Requirements are unconstitutional as applied to it. 

Conclusion

For the reasons stated, Citizens’ summary judgment motion should be granted.

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

812/235-3685 facsimile

 * pro hac vice motion granted

Counsel for Plaintiff

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 52 of 64
27Key to Evidentiary Citations: Amended Verified Complaint (Docket #22) = AVC;

Affidavit of David N. Bossie (Attachment 1 hereto) = Bossie Aff.

SJ Facts 1

United States District Court

District of Columbia

Citizens United,

Plaintiff,

v.

Federal Election Commission,

Defendant.

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

Plaintiff’s Statement of Undisputed Material Facts

Citizens United has moved for summary judgment in its favor. Fed. R. Civ. P. 60. In support

of that motion, Citizens United provides this statement of material facts with references to

supporting evidence. LCvR 7(h).27

1. PlaintiffCitizens United is a nonstock, nonprofit (under 26 U.S.C. § 501(c)(4)), membership,

Virginia corporation with its principal office in Washington, District of Columbia. AVC ¶ 5.

2. Defendant Federal Election Commission (“FEC”) is the government agency with

enforcement authority over FECA. AVC ¶ 6.

3. Citizens United was founded in 1988. Its purpose is to promote the social welfare through

informing and educating the publicon conservative ideas and positions on issues, including national

defense, the free enterprise system, belief in God, and the family as the basic unit of society. Its

current annual budget is about $12 million. Citizens United has a related § 501(c)(3) entity called

Citizens United Foundation (“CUF”). AVC ¶ 7.

4. Citizens United is not a “qualified nonprofit corporation” because it receives corporate

donations and engages in business activities. See 11 C.F.R. § 114.10 (exempting certain ideological,

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 53 of 64
SJ Facts 2

nonstock, nonprofit corporations from the electioneering communication prohibition). AVC ¶ 8.

5. One of the principal means by which Citizens United fulfills its purposes is through the

production and distribution of documentary films. Its first major documentary film, in 2004, was

entitled Celsius 41.11: The Temperature at Which the Brain Begins to Die. The film was a

conservative response to Michael Moore’s documentary Fahrenheit 9/11 and was shown in over

100 theaters in 2004. It continues to be sold in DVD format. AVC ¶ 9.

6. In 2005, Citizens United and CUF co-produced Broken Promises: The United Nations at 60,

which was an exposé on the United Nations narrated by noted actor Ron Silver. This film was

released in DVD format. AVC ¶ 10.

7. In 2006, Citizens United and CUF co-produced two films: Border War: The Battle Over

Illegal Immigration and ACLU: At War With America. Border War had a limited theatrical release

and was sold on DVD. ACLU was released only in DVD format. AVC ¶ 11.

8. Broken Promises and Border War have competed for and won a number of awards from the

motion picture industry. Broken Promises won a Special Jury Remi Award at the 2006 Houston

International Film Festival. Border War won best feature documentary at the 2006 Liberty Film

Festival, a Silver Remi Award at the 2007 Houston International Film Festival, and best feature

documentary film honors from the American Film Renaissance in February 2007. Border War also

qualified for consideration under the Academy of Motion Picture Arts and Sciences demanding

criteria for nomination to the 79th Academy Awards in February 2007. AVC ¶ 12.

9. In 2007, CUF produced Rediscovering God in America, which is narrated by Newt and

Calista Gingrich. This film premiered in Washington, D.C., and New York City and is now

available in DVD format only. As of December 11, 2007, the film was the top selling historical

documentary on Amazon.com. AVC ¶ 13.

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SJ Facts 3

10. At the time of filing its complaint, Citizens United was in the final stages of production on

a feature length documentary film on Senator Hillary Clinton entitled Hillary: The Movie. This

issue-advocacy film was expected to be released somewhere in the December 2007 to February

2008 time-frame and was slated for theaters, cable on-demand broadcast, and DVD sales. AVC

¶ 14.

11. The documentary film Hillary: The Movie was completed on January 4, 2008, and was

released to members of the news media in DVD format. A true and correct copy of the final

transcript was filed with this Court as Document #32 (filed Jan. 7, 2008). Bossie Aff. ¶ 4. 

12. Hillary has been shown in theaters on the following 2008 dates in the cities indicated: Jan.

14 (Washington, DC); Jan. 16 (New York, NY); Jan. 17 (Las Vegas, NV); Jan. 22 (Greenville, SC);

Jan. 23 (Tampa, FL); Jan. 24 (New York, NY); Jan. 30 (Phoenix, AZ); Feb. 1 (San Diego, CA);

Feb. 2 (Santa Ana, CA); Feb. 11 (Seattle, WA); March 4 (Orlando, FL); Apr. 3 (Santa Barbara,

CA); Apr. 21 (Brooklyn, OH). Bossie Aff. ¶ 5.

13. Hillary is currently available for sale at www.hillarythemovie.com for $23.95 (plus

shipping & handling) with patrons requested to allow two weeks for delivery. Hillary is also

available at www.amazon.com for $21.99 (plus shipping & handling). Bossie Aff. ¶ 6.

14. Based on long experience with marketing Citizens United’s documentaries, it is David N.

Bossie’s opinion that Citizens United’s inability to broadcast the ads set out in the complaint (the

ads are available for viewing at www.hillarythemovie.com)is decreasing sales of Hillary DVDs and

tickets for theater screenings. In fact, it has been impossible to do the usual theatrical release in

numerous theaters due to the inability to broadcast the advertisements. Bossie Aff. ¶ 7.

15. Citizens United continues to plan to broadcast its ads for Hillary and for a documentary

concerning Barack Obama during electioneering communication periods before presidential

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SJ Facts 4

primaries, the Democratic Party convention, and the general election in numerous states if timely

judicial relief is granted, all as set out and verified in the original and amended complaints. The

time-bound details of the advertising plans that were originally set out in the complaint, AVC ¶¶ 17,

20, are no longer possible, but HLW yet intends to do what broadcasting is feasible if it obtains the

requested judicial relief in a timely fashion. And Citizens United reaffirms its intention to do

materially similar advertising in materially similar situations in the future. Bossie Aff. ¶ 8; AVC

¶ 25.

16. Citizens United is planning a documentary film on presidential candidate Senator Barack

Obama, which it anticipates being ready for release by June 2008. It will raise similar issues as

Hillary, and Citizens United will similarly wish to broadcast ads that name Senator Obama and will

be broadcast during electioneering communication periods. The ads and movie, if broadcast, will

be electioneering communications. However, it is impossible to present the movie and ads to the

Court now in a request for declaratory and injunctive relief because they are not prepared for the

Court to review. The ads cannot even be prepared in advance because they will be based on

materials from the movie, which is not ready now. Bossie Aff. ¶ 9.

17. Citizens United could not obtain an FEC advisory opinion now, or in the near future,

concerning the Senator Obama documentary because the documentary is not finished, the ads

cannot yet be done, and there are not enough FEC Commissioners presently to enable the FEC to

render advisory opinions. Bossie Aff. ¶ 10.

18. Citizens United does not know now whether it will be offered an opportunity to broadcast

the Obama documentary on television, as it was offered for Hillary, and such offers are usually

made when a movie is completed or nearly completed. Bossie Aff. ¶ 11.

19. Based on how the FEC has analyzed Hillary and its Ads, Citizens United will be chilled

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SJ Facts 5

as to the Obama documentary and its ads in the same manner. Bossie Aff. ¶ 12.

20. The FEC concedes that the two 10-second ads fit its regulatory commercial transaction

exception to the prohibition on broadcasting electioneering communications, but it asserts that the

30-second ad, “Questions,” does not fall within that safe harbor. Opp’n to 2d Mot. for Prelim. Inj.

(Doc. #33) at 17. However, the FEC does concede that “on balance” the “Questions” ad is protected

from prohibition under the appeal-to-vote test of FEC v. Wisconsin Right to Life, 127 S. Ct. 2652,

2667 (2007) (“WRTL II”). Seven days after the present suit was filed, the FEC was unsure whether

“Questions” was a protected ad—under its regulatory test or WRTL II’s test—and declared that it

needed more time to make up its mind. Opp’n to Mot. for Consol’n (Doc. #19) at 8. Seventeen days

later, the FEC finally concluded that the 30-second ad was protected under WRTL II. The FEC said

that (a) it was uncertain as to whether the ad fit the FEC rule’s safe harbor, but (b) “on balance” it

was a protected ad under WRTL II. See Doc. #33 at 17. This analysis indicates a balancing of

unidentified factors. Bossie Aff. ¶ 13.

21. As to Hillary, the FEC declared it was not protected by WRTL II from prohibition, based

on identified phrases without mentioning any balancing. See Doc. #33 at 14. This analysis

apparently differed from the balancing used as to Questions. Bossie Aff. ¶ 14.

22. The FEC’s delay and imprecision in analysis of these two communications, lack of bright

lines, and apparent substitution of a balancing test for WRTL II’s no-other-reasonable-interpretation

test makes it impossible for Citizens United to know whether the FEC will consider its Obama

documentary and ads to be subject to prohibition as electioneering communications. Bossie Aff.

¶ 15.

23. Hillary: The Movie includes interviews with numerous individuals and many scenes of

Senator Clinton at public appearances. It is about 90 minutes in length. It does not expressly

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SJ Facts 6

advocate Senator Clinton’s election or defeat, but it discusses her Senate record, her White House

record during President Bill Clinton’s presidency, and her presidential bid. Some interviewees also

express opinions on whether she would make a good president. A compendium book is being

published by Thomas Nelson Publishers, which has purchased the book rights to the film and is

paying Citizens United an advance royalty on sales. Neither of the Disclosure Requirements applies

to the documentary itself (unless it is broadcast). AVC ¶ 14.

24. When Citizens United produced Celsius 41.11 in 2004, it ran national broadcast ads

promoting the film. The original version of the ads had images and sound bites of President George

Bush and Senator John Kerry, but those images and sound bites had to be deleted from the ads due

to the electioneering communication prohibition. Prior to running the ads, Citizens United received

FEC Advisory Opinion 2004-30, stating that its film and film ads would qualify as electioneering

communications and would not be exempt under the Press Exemption. AVC ¶ 15.

25. Citizens United intends to fund television ads (“Ads”) to promote Hillary: The Movie that

will meet the electioneering communication definition at 2 U.S.C. § 434(f)(3). A true and correct

transcript of the Ads is attached to the Amended Verified Complaint. See AVC Exhibit 1. Citizens

United has not, and will not, coordinate the production and broadcast of the Ads with any candidate,

campaign committee, political committee, or political party. AVC ¶ 16.

26. The first of Citizens United’s Ads is in the following words:

“Wait”

:10

[Image(s) of HRC on screen]

If you thought you knew everything about Hillary Clinton . . . wait ’til you see the movie.

[Film Title Card]

[Visual Only] Hillary: The Movie. 

[Visual Only] www.hillarythemovie.com.

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SJ Facts 7

AVC Exhibit 1.

27. The second of Citizens United’s Ads is in the following words:

“Pants”

:10

[Image(s) of HRC on Screen]

First, a kind word about Hillary Clinton: [Ann Coulter Speaking & Visual] She looks good in

a pant suit.

Now, a movie about everything else.

[Film Title Card]

[Visual Only] Hillary: The Movie

[Visual Only] www.hillarythemovie.com

AVC Exhibit 1.

28. The third of Citizens United’s Ads is in the following words:

“Questions”

:30

[Image(s) of HRC on Screen]

Who is Hillary Clinton?

[JEFF GERTH Speaking & Visual] [S]he’s continually trying to redefine herself and figure out

who she is . . . 

[ANN COULTER Speaking & Visual] [A]t least with Bill Clinton he was just good time

Charlie. Hillary’s got an agenda . . .

[DICK MORRIS Speaking & Visual] Hillary is the closest thing we have in America to a

European socialist . . .

If you thought you knew everything about Hillary Clinton . . . wait ’til you see the movie.

[Film Title Card]

[Visual Only] Hillary: The Movie. In theaters [on DVD] January 2007. 

[Visual Only] www.hillarythemovie.com.

AVC Exhibit 1.

29. The Ads that Citizens United intends to broadcast will meet the electioneering communications definition at 2 U.S.C. § 434(f)(3) and 11 C.F.R. § 100.29 because they (a) will be broadcast

Case 1:07-cv-02240-RCL-RWR Document 52 Filed 05/16/2008 Page 59 of 64
SJ Facts 8

on Fox News cable and major network stations so that they (b) will be receivable by more than

50,000 persons, see http://gullfoss2.fcc.gov/ecd (Federal Communications Commission’s

Electioneering Communications Database), in states where caucuses, conventions, or primary

elections will be selecting a Democratic party nominee, (c) will clearly reference Senator Clinton,

a presidential candidate, and (d) will be made within 30 days before the caucuses, conventions, or

primaries in the identified states (with electioneering communication periods indicated) where she

will be on the ballot. AVC ¶ 17.

30. In the amended complaint, Citizens United declared its intent to broadcast the Ads in the

following: Iowa Presidential Caucus (12/04/07 - 01/03/08); New Hampshire Presidential Primary

(12/09/07 - 01/08/08); Michigan Presidential Primary (12/16/07 - 01/15/08); Nevada Presidential

Caucus (12/20/07 - 01/19/08); South Carolina Presidential Primary (D) (12/27/07 - 01/26/08);

Florida Presidential Primary (12/30/07 - 01/29/08). See http://www.fec.gov/info/charts_ec_dates_

prez.shtml (electioneering communication periods). AVC ¶ 17.

31. Citizens United will broadcast the 30-second, issue-advocacy ad entitled “Questions” on

Fox News cable, and may broadcast it on major television network stations, too. Citizens United

will broadcast the 10-second ads “Wait” and “Pants” on major television network stations, but not

on Fox News. The disclaimer language mandated by FEC rule, see 11 C.F.R. § 110.11, takes about

4 seconds to narrate, making 10-second ads virtually impossible and 30-second ads extremely

difficult to do and have any significant time left for substantive communication. AVC ¶ 18.

32. Citizens United’s Ads will promote showings of Hillary: The Movie in theaters and sales

of Hillary in DVD format and refer viewers to www.hillarythemovie.com for more information

about the documentary and how to see or purchase it. AVC ¶ 19.

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SJ Facts 9

33. In the complaint, Citizens United declared its desire to begin broadcasting its Ads on

Monday, December 17, 2007, and run them through the middle of January for its initial media buy.

However, because it will not run the Ads absent the requested relief from this Court, Citizens

United declared its intent to begin broadcasting its ads when it gets the relief requested herein and

run them through the middle of January for its initial media buy. If Senator Clinton becomes the

presidential nominee of her party, Citizens United will again plan to run the Ads (and possibly

materially-similar ads) on Fox News cable (and possibly other broadcast outlets) within 30 days

before the Democratic National Committee Convention (electioneering communication period is

07/29/08 - 08/28/08) and within 60 days of the November general election (electioneering

communication period is 09/05/08 - 11/04/08). See http://www.fec.gov/info/charts_ec_dates_

prez.shtml. At these times, the Ads will also meet the electioneering communication definition.

Citizens United believes that these are the times when the public’s interest in Senator Clinton will

be at its peak, which is the key to maximizing box office, cable on-demand, and DVD sales for

Hillary. AVC ¶ 20.

34.The Ads are subject to the Disclosure Requirements because the FEC recently refused

requests to exclude from the Disclosure Requirements “electioneering communications” that meet

the Supreme Court’s issue-advocacy safe harbor, WRTL II, 127 S. Ct. at 2667 (appeal-to-vote test),

or the FEC’s own commercial-transaction safe harbor. See http://www.fec.gov/law/ law_rulemakings.shtml#ec07 (rulemaking documents, including requests to eliminate disclosure for ads not

subject to electioneering communication prohibition). AVC ¶ 22.

35. One 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. Citizens United noted,

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on information and belief, that the Clinton White House had in its possession over 1,000 FBI files

on political opponents. See, e.g., Neil A. Lewis, White House Got More Files Than Disclosed, N.Y.

Times, June 12, 2007 (available by query at google.com). AVC ¶ 23.

36. Citizens United recited in the amended complaint that it will have donors that it will be

required to disclose (as to name and address), absent the judicial relief requested here, because it

will pay for the Ads “exclusively from a segregated bank account established to pay for

electioneering communications permissible under 11 C.F.R. § 114.15” (rule implementing WRTL

II by permitting corporate electioneering communications), to which donors will have “donated an

amount aggregating $1,000 or more . . . since the first day of the preceding calendar year.” 11

C.F.R. § 104.20. ¶ 24. But Citizens United will not make any electioneering communications unless

it obtains the requested judicial relief, under which it would have to do no disclosure as to donors,

see AVC ¶ 26, either from its general fund or a segregated bank account.

37. Citizens United intends to broadcast materially-similar ads mentioning public figures who

are candidates in materially-similar situations during future electioneering communication periods

when public interest is at a peak. There is a strong likelihood that such similar situations will recur,

given the facts that Plaintiff has engaged in similar activity in the past and that such activity is

common and regularly recurring for it—as are conflicting electioneering communication periods.

AVC ¶ 25, Bossie Aff. ¶ 7.

38. Citizens United intends to broadcast its Ads without complying with the Disclosure

Requirements, but it will not broadcast its Ads if it does not obtain the judicial relief presently

requested. AVC ¶ 26.

39. If Citizens United does not obtain the judicial relief presently requested and decided to

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proceed with its activities as electioneering communications, it could not proceed with its activities

as planned. Instead, it would be forced to include the compelled speech of a disclaimer, which (a)

requires it to mislead the public by identifying its speech as electioneering speech and (b) deprives

Citizens United of valuable time in its short and expensive broadcast Ads. Adding the disclaimer

will preclude Citizens United from running its 10-second ads and will require it to revise its 30-

second ad so as to be much less effective—both as the issue advocacy that it is and as a vehicle for

promoting Hillary: The Movie. And Citizens United will be compelled to file reports of its activity,

which (1) requires it to mislead the public by reporting its speech as electioneering speech; (2)

deprives Citizens United of valuable time and resources in complying with reporting requirements;

and (3) will, in Citizens United’s belief based on long experience, substantially reduce the number

of donors and amount of donations to Citizens United because many potential donors do not wish

to be publicly so identified for a variety of legitimate reasons. AVC ¶ 27.

40. On December 20, 2007, a company that markets nationwide Video on Demand (“VOD”)

broadcasting of programs on cable television made an offer to Citizens United to broadcast Hillary:

The Movie, for a fee to be paid by Citizens United, to cable viewers nationwide (or to such markets

as remain appropriate when the judicial relief requested herein is provided). Hillary would be

broadcast under a “Political Movies” component of “Elections ’08, a new channel sponsored by the

cable industry. The contract offered would be for 4 weeks. AVC ¶ 28.

41. This broadcasting would bring Hillary within the electioneering communication definition

because the movie (a) will be broadcast on cable stations so that it (b) will be receivable by more

than 50,000 persons, in states where caucuses, conventions, or primary elections will be selecting

a Democratic party nominee, (c) will clearly reference Senator Clinton, a presidential candidate, and

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

identified in ¶ 17 where she will be on the ballot. AVC ¶ 29.

42. Citizens United intends to accept this offer to broadcast its documentary, but will not do

so unless it receives the judicial relief requested herein because (a) it will have donors who would

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

movie for the reasons stated in [AVC] ¶¶ 23 & 27 and (b) the communication would be a prohibited

“electioneering communication” under BCRA because it is not exempt from the “electioneering

communication” prohibition under the FEC’s regulation at 11 C.F.R. § 114.15 (creating an

exception to the electioneering communication prohibition). AVC ¶ 30.

43. If Citizens United does not obtain the judicial relief presently requested as to Hillary, it will

not proceed with its activities as planned. In such an event, Citizens United will be deprived of its

constitutional rights and will suffer irreparable harm. AVC ¶ 32.

44. Citizens United has no adequate remedy at law. AVC ¶ 33.

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

812/235-3685 facsimile

 * pro hac vice motion granted

Counsel for Plaintiff

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