No. 08-_______

In The

Supreme Court of the

United States

____________

CITIZENS UNITED, Appellant,

v.

FEDERAL ELECTION COMMISSION, Appellee.

____________

On Appeal from the United States District Court

for the District of Columbia

 ____________

Jurisdictional Statement

____________

James Bopp, Jr.

 Counsel of Record

Richard E. Coleson

Jeffrey P. Gallant

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434 (telephone)

812/235-3685 (facsimile)

Counsel for Citizens United
(i)

Questions Presented

1. Whether all as-applied challenges to the disclosure requirements (reporting and disclaimers) imposed

on “electioneering communications” by the Bipartisan

Campaign Reform Act of 2002 (“BCRA”) were resolved

by McConnell’s statement that it was upholding the

disclosure requirements against facial challenge “‘for

the entire range of electioneering communications’ set

forth in the statute.” Mem. Op. I, App. 15a (quoting

McConnell v. FEC, 540 U.S. 93, 196 (2003)).

2. Whether BCRA’s disclosure requirements impose

an unconstitutional burden when applied to electioneering communications protected from prohibition by

the appeal-to-vote test, FEC v. Wisconsin Right to Life,

127 S. Ct. 2652, 2667 (2007) (“WRTL II”), because such

communications are protected “political speech,” not

regulable “campaign speech,” id. at 2659, in that they

are not “unambiguously related to the campaign of a

particular federal candidate,” Buckley v. Valeo, 424

U.S. 1, 80 (1976), or because the disclosure requirements fail strict scrutiny when so applied.

3. Whether WRTL II’s appeal-to-vote test requires

a clear plea for action to vote for or against a candidate, so that a communication lacking such a clear plea

for action is not subject to the electioneering communication prohibition. 2 U.S.C. § 441b.

4. Whether a broadcastfeature-length documentary

movie that is sold on DVD, shown in theaters, and

accompanied by a compendium book is to be treated as

the broadcast “ads” at issue in McConnell, 540 U.S. at

126, or whether the movie is not subject to regulation

as an electioneering communication.
(ii)

Parties to the Proceedings

The names of all parties to the proceeding in the

court below whose judgment is sought to be reviewed

are contained in the caption of this case. Rule 14.1(b).

Corporate Disclosure Statement

Citizens United has no parent corporation, and no

publicly-held company owns ten percent or more of its

stock. Rule 29.6.
(iii)

Table of Contents

Questions Presented ............................................... (i)

Parties to the Proceedings ..................................... (ii)

Corporate Disclosure Statement ........................... (ii)

Table of Authorities ................................................ (v)

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

Opinions Below .......................................................... 4

Jurisdiction ................................................................ 4

Constitutional & Statutory Provisions ..................... 4

Statement of the Case ............................................... 5

The Questions Presented Are Substantial ............. 15

I. McConnell’s Facial Upholding of the Disclosure Requirements Did Not Resolve This AsApplied Challenge. ....................................... 15

II. Disclosure Requirements Impose an Unconstitutional Burden When Mandated for Non-

“Campaign Speech.” ..................................... 16

A. Disclosure Requirements May Only Be

Imposed on Communications That Are

Unambiguously Related to a Candidate’s
(iv)

Campaign. ............................................... 16

B. The Disclosure Requirement Is Subject to

and Fails Strict Scrutiny. ....................... 20

III. WRTL II’s Appeal-to-Vote Test Requires a

Clear Plea for Action Urging a Vote. ........... 24

IV. A Feature-Length Movie May Not Be Treated as the Broadcast “Ads” at Issue in

McConnell. .................................................... 26

Conclusion ............................................................... 29

Appendix

Order ........................................................................ 1a

Memorandum Opinion (“Mem. Op. II”) ................. 2a

Memorandum Opinion (“Mem. Op. I”)* ................. 4a

Ad Script – “Wait” .............................................. 5a

Ad Script – “Pants” ............................................ 6a

Ad Script – “Questions” ..................................... 6a

Errata* ................................................................... 21a

Notice of Appeal to U.S. Supreme Court .............. 22a

U.S. Constitution, First Amendment .................. 23a

2 U.S.C. § 434(f)(1)-(3) ........................................... 24a

2 U.S.C. § 441b(a)-(c) ............................................. 28a

2 U.S.C. § 441d ...................................................... 30a
(v)

BCRA § 403 ........................................................... 32a

11 C.F.R. § 100.29 ................................................ 33a

11 C.F.R. § 110.11(a)-(c) ........................................ 40a

*The Memorandum Opinion (Doc. 39) was amended by

the Errata (Doc. 40).
(vi)

Table of Authorities

Cases

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) ... 20

Board of Educ. Island Trees Union Free School

Dist. No. 26 v. Pico, 457 U.S. 853 (1982) .......... 28

Buckley v. Valeo, 424 U.S. 1 (1976) . (i), 2, 11, 12, 15-

22, 26

Davis v. FEC, 128 S. Ct. 2759 (2008) ..... 2, 12, 20, 23

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ..... 26

FEC v. Wisconsin Right to Life, 127 S. Ct. 2652

(2007) ............................ (i)-3, 14, 18, 19, 21-26, 28

First National Bank of Boston v. Bellotti, 435 U.S.

765 (1978) ........................................................... 21

Jenkins v. Georgia, 418 U.S. 153 (1974) ............... 28

McConnell v. FEC, 540 U.S. 93 (2003) .. (i), 3, 14, 15,

19, 20, 26-28

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C.

2003) ................................................................... 20

McIntyre v. Ohio Elections Commission, 514 U.S.

334 (1995) ........................................................... 21
(vii)

North Carolina Right to Life v. Leake, 525 F.3d

274 (4th Cir. 2008) ............................................. 16

Wisconsin Right to Life v. FEC, 546 U.S. 410

(2006) ............................................................. 3, 15

Constitution, Statutes, Regulations & Rules

2 U.S.C. § 431 .......................................................... 17

2 U.S.C. § 434(f)(1)-(3) ........................................... 5, 9

2 U.S.C. § 441b(a)-(c) ................................................. 5

2 U.S.C. § 441d .......................................................... 5

11 C.F.R. § 100.29 ................................................ 5, 9

11 C.F.R. § 110.11(a)-(c) ...................................... 5, 12

11 C.F.R. § 114.10 ..................................................... 6

11 C.F.R. § 114.15 ................................................... 11

Bipartisan Campaign Reform Act of 2002 .... (i), 1, 4,

5, 21, 26, 27

Supreme Court Rule 14.1(b) .................................. (ii)

Supreme Court Rule 29.6 ....................................... (ii)

U.S. Const. amend. I ....................................... passim
(viii)

Other Authorities

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

Reform (2007) ..................................................... 20

William McGeveran, Mrs. McIntyre’s Checkbook:

Privacy Costs of Political Contribution Disclosure, 6 U. Pa. J. Const. L. 1 (2003) .................... 20
Introduction

Citizens United (“Citizens”) is a nonprofit, ideological corporation that makes feature-length, documentary movies. Some have won awards. Citizens released

Hillary: The Movie (“Movie”) in January 2008, a time

of high public interest in Senator Clinton. Citizens

created a website at www.hillarythemovie.com to show

the trailer, generate interest, list theater showings,

and sell DVDs of the movie. The Movie was sold on

DVD by prominent retailers. A compendium book was

published. Broadcast ads were prepared.Theaterswere

booked for screenings. An offer was made to broadcast

the Movie on television. Citizens wanted to do a full

rollout of its Movie, with broadcast ads (“Ads”) to

generate the sort of interest that would facilitate the

booking and filling of movie theaters, the sale of DVDs,

and the communication of information to the public

about a prominent public figure.

This was typical activity for Citizens and the release of all such movies. But there was a problem. The

Ads would be “electioneering communications,” under

BCRA, because they mentioned a federal presidential

candidate and would be broadcast on national television programs during the 30-day periods before the

primaries, caucuses and conventions rolling across the

nation in 2008 and during the sixty days before the

general election. The Movie would also be an electioneering communication, if broadcast during these

periods.

The district court noted, App. 13a, that the Federal

Election Commission (“FEC”) agreed that the Ads may

not be prohibited because they (in WRTL II’s words)
2

1The principal opinion in WRTL II is by Chief Justice

Roberts (Justice Alito joining) and states the holding.

Marks v. United States, 430 U.S. 188, 193 (1977) (holding is

position taken by those concurring on narrowest grounds).

“may reasonably be interpreted as something other

than as an appeal to vote for or against a specific

candidate.” 127 S. Ct. at 2670.1 But the district court

held that the Movie is a prohibited corporate electioneering communication because it does not meet this

test. App. 11a-13a.

Both the Ads and Movie (if permitted to be broadcast) would be subject to the electioneering communication disclaimer, reporting, and donor disclosure

requirements (collectively “Disclosure Requirements”).

Disclosure burdens privacy rights per se, as this Court

reaffirmed in Davis v. FEC. 128 S. Ct. 2759, 2774-75

(2008). And there are other burdens, too, one of them

being that the required disclaimer takes four seconds

out of the two 10-second and one 30-second ads, eliminating the ability to use the 10-second ads and substantially burdening the 30-second ad.

These disclosure requirements impose unconstitutional burdens when applied to electioneering communications that are protected by WRTL II’s appeal-tovote test, 127 S. Ct. at 2667, because such communications are protected “political speech,” not regulable

“campaign speech,” id. at 2659, in that they are not

“unambiguously related to the campaignof a particular

federal candidate,” Buckley v. Valeo, 424 U.S. 1, 80

(1976), and because they are subject to and fail strict

scrutiny when so applied.

The district court held that the Movie was subject
3

2See James Bopp, Jr. & Richard E. Coleson, Comments

of the James Madison Center for Free Speech on Notice of

Proposed Rulemaking 2007-16 (Electioneering Communicato prohibition, even though the Movie contains no clear

plea for action that urges a vote for or against a

candidate, i.e., no language that could be interpreted

only “as an appeal to vote for or against a specific

candidate.” WRTL II, 127 S. Ct. at 2667 (emphasis

added). Furthermore, this is a movie, not one of the

broadcast “ads,” McConnell, 540 U.S. at 126, that gave

rise to BCRA’s electioneering communication prohibition and were put in evidence, and were at issue, in

McConnell. While feature-length movies, and ads promoting them, have traditionally enjoyed the full FirstAmendment protection traditionally afforded to books

and their promotions, that is not the case here.

And just as happened to Wisconsin Right to Life

with its grassroots lobbying ads, see Wisconsin Right to

Life v. FEC, 546 U.S. 410 (2006) (“WRTL I”) (per

curiam), the FEC is again arguing, and the district

court is again agreeing, App. 17a, that the facialholding language in McConnell, 540 U.S. at 196, has

already resolved the present as-applied challenge to

the disclosure provisions.

Until December 14, 2007, it seemed possible that

the FEC would not impose BCRA’s disclosure requirements on electioneering communications that are protected under WRTL II’s appeal-to-vote test. The FEC

was conducting a rulemaking to implement this Court’s

WRTL II decision, and the rulemaking petition had

urged the FEC not to compel disclosure of communications protected by WRTL II’s appeal-to-vote test.2

 On
4

tions) (Sep. 29, 2007) (available at www.fec.gov).

December 14, however, the FEC rejected this request

and has now boldly asserted that “the government’s

interest in providing information to the public extends

beyond speech about candidate elections and encompasses activity that attempts to sway public opinion on

issues . . . .” Opp’n to Mot. for Prelim. Inj. (Doc. 18) at

19 (emphasis added); see also FEC’s SJ Mem. (Doc. 55)

at 22.

Probable jurisdiction should be noted, so that this

Court can determine the proper application of WRTL

II’s appeal-to-vote test and its impact on BCRA’s

disclosure requirements. Furthermore, pursuant to

BCRA § 403(a)(4), this Court should “advance on the

docket and . . . expedite to the greatest possible extent

the disposition of the . . . appeal.” 116 Stat. at 114.

Opinions Below

The district court’s final order and opinion on

summary judgment, as well as its memorandum opinion denying Citizens’ request for a preliminary injunction to which the summary judgment opinion referred,

are reprinted in the Appendix (“App.”) at 1a, 2a and 4a,

respectively.

Jurisdiction

Summary judgment was granted to the FEC on

July 18, 2008. Citizens noticed appeal on July 24,

2008. App. at 22a. This Court has appellate jurisdiction under BCRA § 403(a)(3). Pub. L. No. 107-155, 116

Stat. 81, 113-14.

Constitutional & Statutory Provisions

The following constitutional amendment, statutes,
5

and regulations are appended (page numbers in brackets): U.S. Constitution, First Amendment [23a]; 2

U.S.C. § 434(f)(1)-(3) [24a]; 2 U.S.C. § 441b(a)-(c) [28a]

2 U.S.C. § 441d [30a]; BCRA § 403 [32a]; 11 C.F.R.

§ 100.29 [33a]; 11 C.F.R. § 110.11(a)-(c) [40a].

Statement of the Case

This is an as-applied challenge to the constitutionality of(a) BCRA § 201, 116 Stat. 88 (titled “Disclosure

of Electioneering Communications”), which added a

new subsection “(f)” to § 304 of the Federal Election

Campaign Act (“FECA”) that requires reporting of

electioneering communications, (b) BCRA § 311, 116

Stat. 105, requiring that electioneering communications contain “disclaimers,” see 11 C.F.R. § 110.11, and

(c) BCRA § 203, 116 Stat. 91, prohibiting corporations

from funding electioneering communications. BCRA

§ 201 is called herein the “Reporting Requirement,”

BCRA § 311 is called the “Disclaimer Requirement,”

and the requirements together are called the “Disclosure Requirements” for ease of identification. BCRA

§ 203 is called herein the “Prohibition.” The Reporting Requirement is codified at 2 U.S.C. § 434(f). App.

24a. The Disclaimer Requirement is codified at 2

U.S.C. § 441d(a). App. 30a. The Prohibition is codified

at 2 U.S.C. § 441b. App 28a.

Plaintiff Citizens is a nonstock, nonprofit, membership, Virginia corporation, tax exempt under 26 U.S.C.

§ 501(c)(4), with its principal office in Washington,

District of Columbia. Defendant FEC is the government agency with enforcement authority over FECA.

Citizens was founded in 1988. Its purpose is to

promote the social welfare through informing and edu-
6

cating the public on 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 has a related § 501(c)(3) entity called

Citizens United Foundation (“CUF”).

Citizens 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, nonstock, nonprofit corporations

from the electioneering communication Prohibition).

One of the principal means by which Citizens

fulfills its purposes is through the production and

distribution of documentary films. Its first major documentary film, in 2004, was titled 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. In 2005, Citizens 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. In

2006, Citizens 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.

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 Festi-
7

val. 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.

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.

When Citizens 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 received FEC

Advisory Opinion 2004-30, stating that its film ads

would qualify as electioneering communications and

would not be exempt under the Press Exemption.

In January 2008, Citizens released a feature-length

documentary film on Senator Hillary Clinton titled

Hillary: The Movie. The Movie was shown in theaters

and is currently available for sale on DVD. It 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

advocate Senator Clinton’s election or defeat, but it
8

3The script for “Wait” (10 seconds) follows:

[Image(s) of Senator Clinton 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.

“Pants” (10 seconds) is as follows:

[Image(s) of Senator Clinton 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.

“Questions” (30-seconds) is as follows:

[Image(s) of Senator Clinton 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 . . .”

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 was published by Thomas Nelson

Publishers, which purchased the book rights to the film

and paid Citizens an advance royalty on sales.

Citizens has produced three television ads (“Ads”)

3
9

“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.

to promote the Movie that meet the electioneering

communication definition at 2 U.S.C. § 434(f)(3). Citizens has not, and will not, coordinate the production

and broadcast of the Ads with any candidate, campaign

committee, political committee, or political party. The

Ads reference www.hillarythemovie.com, which promotes showings of the Movie in theaters and sales on

DVD. The DVD is also available from major national

retailers, such as Amazon.com

Citizens planned to broadcast the 30-second ad

titled “Questions” on Fox News cable, and on other major television network stations, too. Citizens planned to

broadcast the 10-second ads “Wait” and “Pants” on

major television network stations, but not on Fox

News. The initial media buy by Citizens was intended

to be from mid-December 2007 to mid-January 2008.

The timing of this rollout advertising blitz with the

release of the Movie was thought to be critical to the

success of the film.

However, the Ads were electioneering communications, 2 U.S.C. § 434(f)(3); 11 C.F.R. § 100.29, because the Ads (a) would have been broadcast on Fox

News cable and major network stations so that they (b)

would have be receivable by more than 50,000 persons,

see http://gullfoss2.fcc.gov/ecd (Federal Communications Commission’s Electioneering Communications
10

4Furthermore, Citizens verified its intent to do substantially-similar ads in the future and stated that there was a

high likelihood that Citizens would broadcast them during

electioneering communication blackout periods. Doc. 22 at

¶¶ 20, 25.

Database), (c) clearly references Senator Clinton, a Democratic presidential candidate, and (d) would have

been made within the corresponding electioneering

communication periods, see http://www.fec.gov/info/

charts_ec_dates_prez.shtml (electioneering communication periods), and, therefore, the Ads would have

been subject to BCRA’s electioneering communication

Disclosure Requirements.4

Furthermore, Citizens received an offer from a

company that markets nationwide Video on Demand

(“VOD”) broadcasting of programs on cable television

to broadcast the Movie, for a fee to be paid by Citizens,

to cable viewers nationwide. The Movie would have

been broadcast under a “Political Movies” component

of “Elections ’08,” a new channel sponsored by the cable

industry. The contract offered to broadcast the Movie

for four weeks. This broadcasting would have brought

the Movie within the electioneering communication

definition because the Movie (a) would have been

broadcast on cable stations so that it (b) would have

been receivable by more than 50,000 persons, in states

where caucuses, conventions, or primary elections were

being conducted to select a Democratic Party presidential nominee, (c) clearly references Senator Clinton, a

Democrat presidential candidate, and (d) would have

been broadcast within thirty days before these caucuses, conventions, or primaries where she was on the

ballot. As a result, the Movie would have been subject
11

to BCRA’s electioneering communication Prohibition

and Disclosure Requirements.

Citizens filed its Verified Complaint for Declaratory

and Injunctive Relief on December 13, 2007, and moved

for a preliminary injunction (Doc. 5), expedition (Doc.

4), and consolidation of the hearing on the preliminary

injunction with the hearing on the merits (Doc. 6).

Citizens claimed in its preliminary injunction motion

that the Ads and the Movie were protected by WRTL

II’s appeal-to-vote test and thus could not be prohibited. Citizens also claimed that the Ads meet the

recently-enacted FEC rule recognizing a commercialtransaction, safe-harbor exception to the electioneering

communication Prohibition, because each ad (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).

 Finally, Citizens claimed that because the Ads and

the Movie met WRTL II’s appeal-to-vote test, they were

protected “political speech,”not“campaign speech,” 127

S. Ct. at 2659, in that they are not “unambiguously related to the campaign of a particular federal candidate,” Buckley, 424 U.S. at 80, and could not constitutionally be subject to the Disclosure Requirements.

One of Citizens’ chief concerns with the Reporting

Requirement was the compelled disclosure of donors

who may then be subject to various forms of retaliation
12

5

In Davis, this Court reaffirmed that “‘compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.’” 128

S. Ct. at 2774-75 (quoting Buckley, 424 U.S. at 64).

6The disclaimer requires (1) a spoken statement that

“Citizens United is responsible for the content of this advertising,” and (2) on-screen text providing (a) “the name and

. . . address, telephone number or World Wide 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).

7On November 15, 2007, Club for Growth PAC (“CFGPAC”) requested an FEC advisory opinion granting an

by political opponents, a concern that Buckley recognized as inherent in compelled disclosure, whether or

not it rises to the level of harassment proven by certain

historically unpopular groups. 424 U.S. at 64.5

In addition, Citizens claimed that the reports would

(1) require it to mislead the public by reporting its

speech as if it were campaign speech when it is not; (2)

deprive Citizens of valuable time and resources in

complying with Reporting Requirements; and (3) would

substantially reduce the number of donors and amount

of donations to Citizens.

Furthermore, the required disclaimer takes about

four seconds to narrate,6

 making 10-second ads virtually impossible and 30-second ads difficult to do and

have significant time left for substantive communication.7

 In addition, the disclaimer would require Citi-
13

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.” Club for

Growth PAC, Advisory Opin. Req., AO 2007-33,available at

www.fec.gov (Advisory Opinion Requests). The FEC denied

the request to use an abbreviated identifier in place of the

mandated disclaimer. AO 2007-33 (July 29, 2008).

zens to mislead the public by identifying its speech as

electioneering speech when it is not.

In response, the FEC conceded that the two 10-

second ads fit its regulatory commercial-transaction

safe harbor, but asserted that the 30-second ad, “Questions,” did not fall within that safe harbor. Opp’n to 2d

Mot. for Prelim. Inj. (Doc. 33) at 17. However, the FEC

did concede that “on balance” the “Questions” ad is protected from prohibition under WRTL II’s appeal-to-vote

test. Id. The FEC argued, however, that passing WRTL

II’s appeal-to-vote test did not relieve Citizens from

complying with the Disclosure Requirements that were

imposed on the ads as electioneering communications.

Furthermore, it argued that the Movie did not meet

WRTL II’s appeal-to-vote test so that its broadcast as

an electioneering communication was subject to the

Prohibition.

Citizens consolidation motion was denied (Doc. 29)

and the preliminary injunction motion was denied on

January 15, 2008. App. 4a. The district court held that

Citizens was unlikely to succeed on the merits.
14

It held that the Movie was a prohibited corporate

electioneering communication because it“is susceptible

of no other interpretation than to inform the electorate

that Senator Clinton is unfit for office, that the United

States would be a dangerous place in a President

Hillary Clinton world, and that viewers should vote

against her.” App. 13a.

As to the Ads, the court held that they could not be

prohibited under WRTL II’s appeal-to-vote test, but

that disclosure could be required. First, the court rejected Citizens’ argument that, as the court put it, “the

WRTL II decision narrowed the constitutionally permissible scope of what may be considered an electioneering communication.” App. 16a. Second, the court

said that, while McConnell had left open for as-applied

challenges the question resolved in WRTL I, 546 U.S.

410 (application of the electioneering communications

Prohibition), “when . . . McConnell . . . sustained the

disclosure provision . . . , it did so for the ‘entire range

of electioneering communications.’” App. 17a (citation

omitted). Since, “[the Ads] obviously are within that

range,” the court concluded that McConnell resolved all

as-applied challenges. App. 17a.

Citizens appealed the denial of the preliminary

injunction directly to this Court, which denied Citizens’

appeal for want of jurisdiction. (Doc. 63). Parties then

filed cross motions for summary judgment (Doc. 52,

55). The district court denied Citizens’ motion and

granted summary judgment to the FEC, App. 1a,

relying on its previous opinion denying a preliminary

injunction. App. 4a. Citizens noticed appeal on July 24,

2008. App. 22a.
15

The Questions Presented Are Substantial

The substantial questions raised in this appeal

address vindication of core political speech rights

generally and proper application of this Court’s precedents by federal courts and agencies.

I. McConnell’s Facial Upholding of the

Disclosure Requirements Did Not

Resolve This As-Applied Challenge.

Despite this Court’s expeditious, unanimous rejection of a nearly-identical argument in WRTL I, 546

U.S. 410, the FEC is again arguing, and the district

court is again agreeing, App. 17a, that McConnell’s

facial upholding of the Disclosure Requirements on

electioneering communications resolves the present asapplied challenge. Specifically, the district court granted summary judgment to the FEC because it found

that this Court’s statement in McConnell that “Buckley

amply supports application of FECA § 304’s disclosure

requirements to the entire range of ‘electioneering communications,’” 540 U.S. at 196 (emphasis added), resolved this as-applied challenge. App. 17a. McConnell’s

statement, however, was facial-challenge language,

closely akin to the McConnell statement at issue in

WRTL I: “We uphold all applications of the primary

definition and accordingly have no occasion to discuss

the backup definition.” McConnell, 540 U.S. at 190

n.73. WRTL I rejected the district court’s notion that

such facial-challenge language precluded as-applied

challenges, concluding that “[i]n upholding § 203

against a facial challenge, we did not purport to resolve

future as-applied challenges.” WRTL I, 546 U.S. at

411-12.
16

This Court needs to decide whether McConnell’s

facial upholding of the Disclosure Requirements resolves all as-applied challenges to them. This is a substantial issue for this Court to decide.

II. Disclosure Requirements Impose an

Unconstitutional Burden When

Mandated for Non-“Campaign Speech.”

For a burden on First Amendment rights to pass

muster in the campaign-finance area, a law must meet

a threshold requirement and pass constitutional

scrutiny. First, the threshold requirement is that the

affected speech or activity be unambiguously campaign

related. See North Carolina Right to Life v. Leake, 525

F.3d 274, 281 (4th Cir. 2008) (“after Buckley, campaign

finance laws may constitutionally regulate only those

actions that are ‘unambiguously related to the campaign of a particular . . . candidate’” (quoting Buckley,

424 U.S. at 80)). Second, if the law passes this

threshold requirement, the law must pass the appropriate level of constitutional scrutiny.

A. Disclosure Requirements May Only Be Imposedon Communications That Are Unambiguously Related to a Candidate’s Campaign.

Buckley held that disbursements for political speech

may not be subjected to compelled disclosure unless

they are for communications “unambiguously related

to the campaign of a particular federal candidate.” 424

U.S. at 80. To assure that “the relation of the information sought to the purposes of the Act [was not] too

remote,” id., this Court imposed the express-advocacy

requirement on certain communications:

To insure that the reach of § 434(e)[, requiring
17

8

“Independent expenditure” is a term of art referring to

an express-advocacy communication that is not coordinated

with a candidate so as to become a contribution. See 2

U.S.C. § 431(17).

disclosure of expenditures,] is not impermissibly

broad, we construe “expenditure” for purposes of

that section in the same way we construed the

terms of § 608(e) to reach only funds used for

communications that expressly advocate the

election or defeat of a clearly identified candidate. This reading is directed precisely to that

spending that is unambiguously related to the

campaign of a particular federal candidate. 

Id. (emphasis added; footnote omitted). This Court

summed up its analysis of the expenditure disclosure

provision, indicating that, as construed, the provision

“shed[s] the light of publicity on spending that is unambiguously campaign related.” Id. at 81 (emphasis

added).

Buckley applied this unambiguously-campaignrelated 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,8

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[, i.e.,

regulating elections], for they are connected with a

candidate or his campaign.”). Because Buckley expressly applied this unambiguously-campaign-related requirement to the disclosure of expenditures, id. at 80,

it has direct application here.

Buckley employed two tests to implement this
18

unambiguously-campaign-related requirement. First,

for determining 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. (emphasis

added). Second, to limit the speech subject to FECA to

only campaign-related speech, this Court 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. This test assures that expenditures are “unambiguously related to the campaign of a particular

federal candidate.” Id. at 80.

WRTL II also limited BCRA’s new “electioneering

communications” to only “campaign speech.” 127 S. Ct.

at 2672 (emphasis added), when it stated its test for

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.” Id. at 2667.

So WRTL II’s appeal-to-vote test is the application of

the unambiguously-campaign-related requirement to

electioneering communications, just as the expressadvocacy test was the Buckley Court’s application of

the requirementto reporting independent expenditures

and the major-purpose test was the application of the

requirement to determination of PAC status.
19

The purpose of the unambiguously-campaignrelated requirement—and the appeal-to-vote test

applying it—is twofold. Negatively, it confines government within the pale of its constitutional authority to

regulate elections. Buckley, 424 U.S. at 13 (“The constitutional power of Congress to regulate federal elections

is well established and is not questioned by any of the

parties in this case.” (footnote omitted; emphasis added)). Positively, it protects what WRTL II called “political speech,” 127 S. Ct .at 2659, a term it equated with

“‘genuine issue ads,’” id. at 2659 (quoting McConnell,

540 U.S. at 206 & n.88), 2668 (same), 2673 (same), or

“issue advocacy,” id. at 2667, as distinguished from

“campaign speech” or “express advocacy.” Id. at 2659.

WRTL II explained that “[i]ssue advocacy conveys

information and educates,”id. at 2667, and reaffirmed

Buckley’s statement that, because issue advocacy and

candidate advocacy often look alike, bright-line tests

are required to protect political speech, or issue advocacy, from being chilled. Id. at 2669. And 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 (citation omitted). See also id. at 2669 &

n.7, 2674.

Yet the FEC has asserted that its interest in

compelling disclosure extends “beyond speech about

candidate elections and encompasses activity that

attempts to sway public opinion on issues . . . .” FEC

SJ Mem. (Doc. 55) at 22. The district court agreed by

recognizing the FEC’s authority to regulate just such

speech in this case. App. 1a.
20

9Evidence 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. See also AFL-CIO v. FEC, 333 F.3d 168, 176,

179 (D.C. Cir. 2003) (recognizing that releasing names of

volunteers, employees, and members would make it hard to

recruit personnel, applying strict scrutiny, and striking

down an FEC rule requiring public release of all investigation materials upon conclusion of an investigation); William

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

B. The Disclosure Requirement Is Subject to and

Fails Strict Scrutiny.

This Court recently reaffirmed that “‘compelled disclosure, in itself, can seriously infringe on privacy of

association and belief guaranteed by the First Amendment.’” Davis, 128 S. Ct. at 2774-75 (quoting Buckley,

424 U.S. at 64). The level of scrutiny to be applied depends on the extent of the burden imposed. Id. at 2775.

Here the scrutiny must be strict. The Disclosure

Requirements include the disclosure of donors, which

is a severe burden. Buckley 424 U.S. at 64-66, 68 (identifying per ser burdens), 237 (Burger, C.J., concurring

in part and dissenting in part) (stating examples of

burdens).9 An on-communication disclaimer is also
21

Political Contribution Disclosure, 6 U. Pa. J. Const. L. 1

(2003); Dick M. Carpenter II, Disclosure Costs: Unintended

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

html).

required by the Disclosure Requirements, for which

this Court required strict scrutiny in McIntyre v. Ohio

Elections Commission, 514 U.S. 334, 347 (1995) (“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.”). The scrutiny must also be strict simply because

the Disclosure Requirements burden what WRTL II

called “political speech.” 127 S. Ct. at 2664 (“Because

BCRA § 203 burdens political speech, it is subject to

strict scrutiny.”).

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, 514 U.S. at

347 (citing First National Bank of Boston v. Bellotti,

435 U.S. 765, 786 (1978), as equating “exacting” scrutiny with “strict” scrutiny).

In applying strict scrutiny, the FEC has the burden

of proving that the Disclosure Requirements are

narrowly tailored to a compelling interest. See WRTL

II, 127 S. Ct at 2664 (stating scrutiny standard).

Buckley set out three interests applicable in the

disclosure context generally. “First, disclosure provides

the electorate with information ‘as to where political
22

campaign money comes from and how it is spent by the

candidate’ in order to aid the voters in evaluating those

who seek federal office.” 424 U.S. at 66-67 (emphasis

added; footnote omitted). “Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and

expenditures to the light of publicity.” Id. at 67. “Third,

. . . recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data

necessary to detect violations of the contribution limitations described above.” Id. at 67-68.

The second and third of these interests deal with

preventing corruption. But Buckley held that with

respect to “independent expenditures,” “[t]he absence

of prearrangement and coordination . . . with the candidate . . . undermines the value of the expenditure to

the candidate . . . [and] alleviates the danger [of] quid

pro quo,” so that restrictions on independent expenditures do not “prevent[] circumvention of the contribution limitations . . . .” Id. at 47. If this is true of independent express advocacy, then a fortiori it is true of

independent “issue advocacy,” WRTL II, 127 S. Ct. at

2667. WRTL II questioned whether a circumvention

interest applies to expenditures, but held that, in any

event, it did not apply to speech that is not the functional equivalent of express advocacy: “[T]o justify regulation of WRTL’s ads, this interest must be stretched

yet another step to ads that are not the functional

equivalent of express advocacy. Enough is enough.

Issue ads like WRTL’s are by no means equivalent to

contributions, and the quid-pro-quo corruption interest

cannot justify regulating them.” Id. at 2672 (emphasis

in original).
23

WRTL’s identification of preventing quid-pro-quo

corruption as the government’s compelling interest in

regulating in the campaign-finance area is consistent

with Davis. 128 S. Ct. 2759. In Davis, this Court considered possiblecompelling interests for burdening (not

restricting) a self-funding candidate’s ability to make

expenditures for his own speech. 128 S. Ct. at 2773.

The Court rejected as compelling any interest in equalizing spending and reaffirmed that the only compelling

interest in this area is preventing corruption and its

appearance. Id. So in the present context, where the

Disclosure Requirements burden Citizens’ political

speech, those requirements must be narrowly-tailored

to preventing corruption.

Buckley’s first interest by its terms deals with “campaign” funds and “candidate” spending, “to aid the

voters in evaluating those who seek federal office,” 424

U.S. at 66-67, which address the quid-pro-quo corruption interest. The Disclosure Requirements here reach

independent issue advocacy communications by noncandidates, so the Disclosure Requirements do not address the quid-pro-quo corruption interest and do not

help the voters evaluate candidates for office. Therefore, the Disclosure Requirements fail strict scrutiny.

The district court, however, did not engage in strict

scrutiny, instead relying on its view that (1) the analysis of WRTL II does not control beyond the prohibition

context to the disclosure context and (2) McConnell’s

facial analysis resolved as-applied challenges. App.

16a-18a.

So this case presents the purely legal question of

whether electioneering communications, that do not

contain an “appeal to vote,” 127 S. Ct. at 2667, may
24

constitutionally be subject to the Disclosure Requirements. This presents a substantial issue for this Court

to decide.

III. WRTL II’s Appeal-to-Vote Test Requires

a Clear Plea for Action Urging a Vote.

The district court decided that the Movie failed

WRTL II’s appeal-to-vote test and so was a prohibited

corporate electioneering communication. App. 16a.

WRTL II framed the appeal-to-vote test two ways,

and both are freestanding. An “ad” is a regulable electioneering communication “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. Conversely, if an ad “may reasonably be interpreted as something other than as an appeal to vote for

or against a specific candidate,” it is not regulable. Id.

at 2670. Both of these contain the key “appeal to vote”

language. Notably, the test didn’t ask whether an ad

“supports or opposes,” or is “for or against,” or “praises

or criticizes” a candidate. Rather, it specified that the

ad must constitute an “appeal,” i.e., a call to act, which

appeal is “to vote.” 

The district court, however, said that the Movie

“does not focus on legislative issues,” App. 10a, “references the election and Senator Clinton’s candidacy,”

App. 11a, and “takes a position on her character, qualifications, and fitness for office.” Id. It then recited a

statement by “one political commentator featured in

The Movie,” about how the Movie “‘g[ave] people the

flavor and an understanding of why she should not be

president.’” Id. (citation omitted). From these, and

some excerpts it recited, it concluded that the Movie “is
25

susceptible of no other interpretation than to inform

the electorate that Senator Clinton is unfit for office,

that the United States would be a dangerous place in

a President Hillary Clinton world, and that viewers

should vote against her.” Id.

First, it should be noted that WRTL II expressly

required that in applying the appeal-to-vote test a

court must focus on the language of the communication

itself, i.e., the test “must be objective, focusing on the

substance ofthe communication rather thanamorphous

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. Thus,

the district court was wrong to rely on statements not

made in the Movie to interpret the Movie.

Second, the district court relied on comments that

WRTL II made in its application of the appeal-to-vote

test to the grassroots lobbying context, employing

wording from arguments made by the parties. 127 S.

Ct. at 2667. But these application statements are not

part of the rule itself. See id. at 2667, 2670. Thus,

whether “political speech,” id. at 2659, addresses a

legislative issue is not part of WRTL II’s appeal-to-vote

test.

Third, the WRTL II test specifically requires that

the ad only be capable of being interpreted as an

“appeal to vote,” that “discussion of issues cannot be

suppressed simply because the issues may also be

pertinent in an election,” id. at 2669, and that all

doubts are to be resolved in favor of the speaker. See

id. at 2667, 2669 & n.7, 2674. This requires a “call to
26

action” to distinguish between (1) “discussion of issues

and candidates,” and (2) “advocacy of election or defeat

of candidates.” Buckley, 424 U.S. at 42. “‘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.’” 127 S.

Ct. at 2670 (citation omitted).

So the correct application of WRTL II’s test is

whether there are actual words in the Movie that constitute an “appeal to vote.” In the Movie, there is no

“exhortation to vote,” nor a “clear plea for action”

urging a vote, nor even a “Don’t let him do it!,” which

was found in FEC v. Furgatch, 807 F.2d 857 (9th Cir.

1987), to have “urged readers to vote against Jimmy

Carter.” Id. at 865. Thus, the Movie “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 full-length,

documentary movie about the public life of Senator

Hillary Clinton.

The question of the proper scope of WRTL II’s

appeal-to-vote test, and whether it was correctly applied in this case to prohibit the Movie, is a substantial

question that this Court should decide.

IV. A Feature-Length Movie May Not Be

Treated as the Broadcast “Ads”

 at Issue in McConnell.

The Movie is categorically different from the broadcast “ads” at issue in McConnell, 540 U.S. at 126, that

were the subject of the studies relied upon by Congress

in passing BCRA and by this Court and the District
27

Court in McConnell. See infra. While the FEC has

correctly noted that the electioneering communication

definition “draws no distinction between ad[s] and

movies,” FEC SJ Mem. (Doc. 33) at 33, this begs the

question of whether the First Amendment mandates

such a distinction.

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

this 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 law. McConnell specifically

identified the sort of communication that it perceived

to be the problem that BCRA addressed, i.e., the Bill

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

193 n.78.

In the McConnell three-judge district court, the

court’s per curiam memorandum opinion plainly

identified “ads” as being the communications at issue

in that facial challenge, actually equating “electioneering communication” and “so-called ‘issue ads’,”

McConnell, 251 F. Supp. 2d at 184 (emphasis added),

and consistently spoke of “ads” and “advertisements,”

never movies. See id. at 229-33.

Similarly, the three separate district court opinions

are replete with references to “ads” and “advertisements,” but not movies. Judge Leon specifically identified the sham issue ads that BCRA targets: “In an

attempt to prevent actual and apparent corruption
28

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 government’s studies which

only examined advertisements (both “genuine” and

“sham”). Id. at 796-97. Judge Kollar-Kotelly likewise

confirmed that the government’s studies were based on

“advertisements,” see, e.g., id. at 719-24 (op. of KollarKotelly, J.), and Judge Henderson specifically pointed

out that a 30-minute NRA “infomercial” and two 30-

minute “news magazine[s]” were not included in the

government’s studies. Id. at 305-06, 316-17 (op. of

Henderson, J.). So when WRTL II framed the appealto-vote test as applicable to “an ad,” 127 S. Ct. at 2667,

it correctly identified the sort of communication targeted by the electioneering communication restrictions.

A full-length documentary movie, therefore, is not

the same as an “ad,” even if the movie is broadcast, and

the record in McConnell provides no justification for

treating it as such. Consequently, a full-length movie

enjoys the same, full First Amendment protection as a

book has historically enjoyed. See Jenkins v. Georgia,

418 U.S. 153 (1974) (movies protected); Board of Educ.

Island Trees Union Free School Dist. No. 26 v. Pico,

457 U.S. 853 (1982) (books protected). It is not subject

to regulation as an “ad.”

Thus, whether a feature-length documentary movie

is subject to the restrictions imposed on electioneering

communications is a substantial question for this

Court to decide.
29

Conclusion

For the foregoing reasons, the Court should note

probable jurisdiction.

Respectfully submitted,

James Bopp, Jr.,

Counsel of Record

Richard E. Coleson

Jeffrey P. Gallant

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434

Counsel for Citizens United