No. 08-205

In the Supreme Court of the United States

CITIZENS UNITED, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel

KEVIN DEELEY

Assistant General Counsel

ADAV NOTI

Attorney

Federal Election Commission

Washington, D.C. 20463

GREGORY G. GARRE

Solicitor General

Counsel of Record

MALCOLM L. STEWART

Deputy Solicitor General

WILLIAM M. JAY

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217
(I)

QUESTIONS PRESENTED

1. Whether the three-judge district court correctly

held that the disclosure requirements of federal campaign finance law may permissibly be applied to advertisements that are not the functional equivalent of express advocacy under the test set forth in FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007).

2. Whether the three-judge district court correctly

concluded that appellant’s film about Senator Hillary

Clinton is the functional equivalent of express advocacy.
(III)

TABLE OF CONTENTS

 Page

Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

TABLE OF AUTHORITIES

Cases:

Brown v. Socialist Workers ’74 Campaign

Comm. (Ohio), 459 U.S. 87 (1982) . . . . . . . . . . . . . . . . 6, 12

Buckley v. American Constitutional Law

Found., Inc., 525 U.S. 182 (1999) . . . . . . . . . . . . . . . . . . 19

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

Citizens Against Rent Control v. City of

Berkeley, 454 U.S. 290 (1981) . . . . . . . . . . . . . . . . . . . . . 19

Davis v. FEC, 128 S. Ct. 2759 (2008) . . . . . . . . . . . . 14, 16, 17

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

FEC v. Wisconsin Right to Life, Inc.,

127 S. Ct. 2652 (2007) ....................... passim

First Nat’l Bank v. Bellotti, 435 U.S. 765 

(1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18, 19

McConnell v. FEC:

540 U.S. 93 (2003) .......................... passim

251 F. Supp. 2d 176 (D.D.C.), aff’d in

part and rev’d in part, 540 U.S. 93 

(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 13, 16, 21, 26

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
IV

Cases—Continued: Page

North Carolina Right to Life, Inc. v. Leake,

525 F.3d 274 (4th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Harriss, 347 U.S. 612 (1954) . . . . . . . . . . 19

United States v. Virginia, 518 U.S. 515 (1996) . . . . . . . . . 15

Constitution, statutes and regulations:

U.S. Const. Amend. I . . . . . . . . . . . . . . . . . . . 14, 18, 19, 21, 26

Bipartisan Campaign Reform Act of 2002,

Pub. L. No. 107-155, 116 Stat. 81:

§ 201, 116 Stat. 88 .............................. 2

§ 203, 116 Stat. 91 . . . . . . . . . . . . . . . . . 7, 8, 9, 11, 12, 17

§ 311, 116 Stat. 105 ............................. 2

Federal Election Campaign Act of 1971,

2 U.S.C. 431 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2 U.S.C. 431(11) ............................... 4

2 U.S.C. 431(f)(1) (Supp. IV 1974) ................ 3

2 U.S.C. 434(f)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

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

2 U.S.C. 434(f)(3)(A)(i) . . . . . . . . . . . . . . . . . . . . . . . 4, 16

2 U.S.C. 437c(b)(1) ............................. 2

2 U.S.C. 437d(a)(7) ............................. 2

2 U.S.C. 437d(a)(8) ............................. 2

2 U.S.C. 437f .................................. 2

2 U.S.C. 438(a)(8) .............................. 2

2 U.S.C. 438(d) ................................ 2

2 U.S.C. 441b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

2 U.S.C. 441b(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2 U.S.C. 441b(b)(2) ............................. 7
V

Statutes and regulations—Continued: Page

2 U.S.C. 441d .................................. 4

2 U.S.C. 441d(a) ............................... 2

2 U.S.C. 441d(a)(3) ............................. 5

2 U.S.C. 441d(d)(2) ............................. 5

26 U.S.C. 501(c)(4) .................................. 8

11 C.F.R.:

Section 104.20 ................................... 4

Section 104.20(c) ................................. 4

Section 104.20(c)(7) ............................... 5

Section 110.11 ................................... 4

Section 110.11(b)(3) ............................... 5

Section 110.11(c)(4) ............................... 5

Section 114.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Miscellaneous:

Citizens United, Hype: The Obama Effect (visited

Oct. 16, 2008) <http://www.hypemovie.com> . . . . . . . 11

Citizens United Political Victory Fund, Statement of

Organization (June 15, 1994) <http://query.

nictusa.com/cgi-bin/fecimg/?94039043287+0> . . . . . . 13

FEC, Individuals Who Gave to This Committee: 

Citizens United Political Victory Fund (visited

Oct. 16, 2008) <http://query.nictusa. com/cgibin/com_ind/C00295527/> . . . . . . . . . . . . . . . . . . . . . . . . 14

FEC Disclosure Reports—Filer ID C00295527,

(visited Oct. 16, 2008) <http://query.nictusa.

com/cgi-bin/fecimg/?C00295527> . . . . . . . . . . . . . . . . . 13
(1)

In the Supreme Court of the United States

No. 08-205

CITIZENS UNITED, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

OPINIONS BELOW

The opinion of the three-judge district court granting

appellee’s motion for summary judgment (J.S. App. 2a3a) is unreported. The opinion of the three-judge district court denying appellant’s motions for preliminary

injunctions (J.S. App. 4a-20a) is reported at 530 F. Supp.

2d 274.

JURISDICTION

The decision of the three-judge district court was

entered on July 18, 2008. A notice of appeal was filed on

July 24, 2008 (J.S. App. 22a-23a), and the jurisdictional

statement was filed on August 15, 2008. The jurisdiction

of this Court is invoked under Section 403(a)(3) of the

Bipartisan Campaign Reform Act of 2002 (BCRA), Pub.

L. No. 107-155, 116 Stat. 113.
2

STATEMENT

In the district court, appellant argued that, under

this Court’s decision in FEC v. Wisconsin Right to Life,

Inc., 127 S. Ct. 2652 (2007) (WRTL), the reporting and

disclaimer requirements imposed by Sections 201 and

311 of BCRA, 116 Stat. 88, 105 (2 U.S.C. 434(f)(2),

441d(a)), are unconstitutional as applied to appellant’s

film criticizing Senator Hillary Clinton and to three

planned advertisements to promote that film. The

three-judge district court denied appellant’s motion for

a preliminary injunction, J.S. App. 4a-20a, and this

Court dismissed appellant’s direct appeal for lack of

jurisdiction. 128 S. Ct. 1732 (2008) (No. 07-953). On

similar reasoning, the district court then granted summary judgment to the Federal Election Commission

(Commission or FEC). Id. at 2a-3a.

1. The FEC is vested with statutory authority over

the administration, interpretation, and civil enforcement

of the Federal Election Campaign Act of 1971 (FECA),

2 U.S.C. 431 et seq., and other federal campaign-finance

statutes. The Commission is empowered to “formulate

policy” with respect to FECA, 2 U.S.C. 437c(b)(1); “to

make, amend, and repeal such rules * * * as are necessary to carry out the provisions of [FECA],” 2 U.S.C.

437d(a)(8), 438(a)(8); see 2 U.S.C. 438(d); and to issue

written advisory opinions concerning the application of

FECA and Commission regulations to any specific proposed transaction or activity, 2 U.S.C. 437d(a)(7), 437f.

2. Since 1910, federal law has required disclosure of

information related to the financing of federal election

campaigns. See Buckley v. Valeo, 424 U.S. 1, 61 (1976)

(per curiam). After Congress enacted a new disclosure

regime in 1974, see id. at 62-64, this Court held that the

new provisions were constitutional on their face, id. at
3

64-84. The Court explained that disclosure serves the

important government interests of (1) providing the

electorate with information on campaign financing “in

order to aid the voters in evaluating those who seek federal office,” id. at 66-67; (2) “deter[ring] actual corruption and avoid[ing] the appearance of corruption by exposing large contributions and expenditures to the light

of publicity,” id. at 67; and (3) “gathering the data necessary to detect violations of the contribution limitations”

that were simultaneously enacted, id. at 68.

The disclosure requirements at issue in Buckley pertained to “the use of money or other objects of value ‘for

the purpose of . . . influencing’ nominations or elections to federal office.” 424 U.S. at 77 (quoting 2 U.S.C.

431(f)(1) (Supp. IV 1974)). In order to avoid “serious

problems of vagueness,” the Court held that, as applied

to organizations whose major purpose was not campaign

activity, the disclosure provisions would “reach only

funds used for communications that expressly advocate

the election or defeat of a clearly identified candidate,”

i.e., “spending that is unambiguously related to the campaign of a particular federal candidate.” Id. at 76, 79-80

(footnote omitted). Consistent with earlier decisions

regarding compelled disclosure, the Court held that the

challenged provisions, so construed, would unconstitutionally infringe on associational rights only in the limited circumstance when such disclosure would result in

a “reasonable probability” of “threats, harassment, or

reprisals” against an organization or its members. Id. at

74.

3. Based on its assessment of evolving federal campaign practices and abuses, Congress subsequently determined, inter alia, that entities had been funding

broadcast advertisements designed to influence federal
4

elections “while concealing their identities from the public,” including by “hiding behind dubious and misleading

names.” McConnell v. FEC, 540 U.S. 93, 196-197 (2003)

(quoting McConnell v. FEC, 251 F. Supp. 2d 176, 237

(D.D.C.) (three-judge court), aff’d in part and rev’d in

part, 540 U.S. 93 (2003)). In enacting BCRA, Congress

amended FECA to require disclosure about the sources

of funding for “electioneering communications.” The

term “electioneering communication” is defined, in the

context of elections for President or Vice President, as

a “broadcast, cable, or satellite communication” that (1)

refers to a clearly identified candidate; and (2) is made

within 60 days before a general election, or within 30

days before a presidential primary election or nominating convention. 2 U.S.C. 434(f)(3)(A)(i).

The disclosure provisions at issue in this case include

both reporting requirements, 2 U.S.C. 434(f)(2); 11

C.F.R. 104.20, and disclaimer requirements, 2 U.S.C.

441d; 11 C.F.R. 110.11. The reporting provisions state

that any “person” (defined to include any corporation,

labor organization, or other group, 2 U.S.C. 431(11))

expending more than $10,000 to produce or air an electioneering communication must file a statement with the

Commission. 2 U.S.C. 434(f)(2). The statement must

identify the person making the disbursement, the

amount and date of the disbursement, and, in the case of

an electioneering communication made by a corporation,

“the name and address of each person who made a donation aggregating $1,000 or more to the corporation

* * * for the purpose of furthering electioneering communications.” 11 C.F.R. 104.20(c). If the disbursement

is made out of a “segregated bank account established to

pay for electioneering communications,” the corporation

making the electioneering communication need only
5

identify those individuals who contributed $1000 or more

to that segregated account. 2 U.S.C. 434(f)(2)(E); 11

C.F.R. 104.20(c)(7).

BCRA’s disclaimer provisions require that a televised electioneering communication include on the

screen (1) “the name and permanent street address,

telephone number, or World Wide Web address of

the person who paid for the communication,” and (2)

a statement “that the communication is not authorized

by any candidate or candidate’s committee.” 2 U.S.C.

441d(a)(3); 11 C.F.R. 110.11(b)(3). The communication

must also include a statement that the entity funding the

communication “is responsible for the content of this

advertising,” and that statement must be (1) made orally

by a representative of the person making the communication, and (2) printed “for a period of at least 4 seconds” in text meeting size and contrast requirements.

2 U.S.C. 441d(d)(2); 11 C.F.R. 110.11(c)(4).

4. Soon after BCRA was enacted, appellant and

other plaintiffs challenged the constitutionality of numerous BCRA provisions, including the reporting and

disclaimer requirements that are at issue in this appeal.

In McConnell, this Court rejected the plaintiffs’ challenges to those disclosure provisions. See 540 U.S. at

194-202, 230-231.

In upholding the reporting requirements applicable to “electioneering communications,” the Court in

McConnell explained that “the important state interests

that prompted the Buckley Court to uphold FECA’s disclosure requirements—providing the electorate with

information, deterring actual corruption and avoiding

any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions—apply in full to BCRA.” 540 U.S. at 196. For that
6

reason, the Court concluded, “Buckley amply supports

application of [the] disclosure requirements to the entire

range of ‘electioneering communications.’” Ibid. The

Court also endorsed the conclusion of the district court

in that case that the plaintiffs’ challenge to BCRA’s reporting requirements “ignores the competing First

Amendment interests of individual citizens seeking to

make informed choices in the political marketplace.” Id.

at 197 (quoting McConnell, 251 F. Supp. 2d at 241).

Three other Justices in McConnell, while rejecting much

of the Court’s reasoning, agreed that BCRA’s reporting

requirements are generally constitutional because they

“substantially relate” to the informational interest identified in the Court’s opinion. Id. at 321 (Kennedy, J.,

concurring in the judgment in part and dissenting in

part); see id. at 286 n.*.

Consistent with Buckley, the Court in McConnell

recognized that, under certain limited circumstances,

“compelled disclosures may impose an unconstitutional

burden on the freedom to associate in support of a particular cause.” 540 U.S. at 198. The Court explained

that, under the governing standard, disclosure may not

be required in circumstances where there is a “reasonable probability” that such disclosure “would subject

identified persons to ‘threats, harassments, and reprisals.’” Id. at 198-199 (quoting Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U.S. 87, 100

(1982)). The Court agreed with the district court that

the evidence in McConnell had “not establish[ed] the

requisite ‘reasonable probability’ of harm to any plaintiff

group or its members,” but it noted that its rejection of

the facial challenge to the reporting requirements did

“not foreclose possible future challenges to particular

applications of that requirement.” Id. at 199.
7

The Court in McConnell also upheld BCRA’s disclaimer requirements. 540 U.S. at 230-231. Chief Justice Rehnquist, writing for eight Members of the Court

(see id. at 224 n.*), explained that BCRA’s “inclusion of

electioneering communications in the [pre-existing disclaimer] regime bears a sufficient relationship to the

important governmental interest of ‘shed[ding] the light

of publicity’ on campaign financing.” Id. at 231 (quoting

Buckley, 424 U.S. at 81).

5. In McConnell, this Court also rejected a facial

challenge to Section 203 of BCRA, 2 U.S.C. 441b(b)(2),

which prohibits corporations or labor unions from using

general treasury funds to pay for electioneering communications. 540 U.S. at 206. The Court noted that this

corporate funding restriction encompassed both campaign advocacy and some “issue ads,” but held that the

government’s long-recognized and compelling interests

in regulating corporation-funded express advocacy apply

with equal force to corporation-funded speech that is

“the functional equivalent of express advocacy.” Id. at

205-206. The Court reasoned that, because the statutory

definition of “electioneering communication” encompasses only communications that refer to a specific candidate shortly before an election, the fact that a communication meets the statutory criteria “strongly supports”

a finding that any given electioneering communication

is the functional equivalent of express advocacy, such

that the funding restriction’s potential “application to

pure issue ads” is insubstantial. See id. at 207. The

Court further noted that, “[e]ven if we assumed that

BCRA will inhibit some constitutionally protected corporate and union speech, that assumption would not justify

prohibiting all enforcement of the law unless its application to protected speech is substantial.” Ibid. (citation
8

and internal quotation marks omitted). Thus, the Court

in McConnell held that the electioneering communication provision was “amply justifie[d],” id. at 208, and

that the plaintiffs had not “carried their heavy burden”

to show the funding restriction to be unconstitutional on

its face, id. at 207.

Four years later, in WRTL, this Court considered

and sustained an as-applied challenge to Section 203.

Two Members of the Court framed the relevant inquiry

as whether the advertisements at issue constituted “express advocacy or its functional equivalent.” 127 S. Ct.

at 2664 (opinion of Roberts, C.J.). Under their approach, “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.” Id. at 2667. Those two

Justices concluded that, “[u]nder this test, WRTL’s

three ads are plainly not the functional equivalent of

express advocacy.” Ibid. The lead opinion therefore

concluded that no compelling interest supported Section

203 as applied to those advertisements. Id. at 2670-

2673. Three other Justices concluded that Section 203

is unconstitutional on its face and would have overruled

the Court’s contrary holding in McConnell. Id. at 2684-

2687 (Scalia, J., concurring in part and concurring in the

judgment).

6. Appellant is a nonprofit corporation with tax-exempt status under 26 U.S.C. 501(c)(4). J.S. App. 5a. In

early 2008, appellant released a film about Senator Hillary Clinton, entitled Hillary: The Movie, which appellant intended to distribute through theaters, video-ondemand broadcasts, and DVD sales while Senator

Clinton was a candidate for President of the United

States. See ibid. The video-on-demand broadcast was
9

to be made available to cable television subscribers for

a fee to be paid by appellant, in the manner of an

infomercial. See id. at 7a; Am. Compl. ¶ 28. Appellant

also produced three television advertisements for the

movie. J.S. App. 5a-7a & nn.2-4.

In December 2007, appellant filed suit in federal district court, challenging BCRA’s application to both the

film and the proposed advertisements. See J.S. App. 9a10a. With respect to the film itself, appellant contended

that Section 203’s ban on the use of general treasury

funds to broadcast the movie is unconstitutional under

this Court’s decision in WRTL. See id. at 11a-12a. With

respect to the advertisements for the film, the FEC conceded in the district court that, under WRTL, appellant

could not constitutionally be foreclosed from financing

those advertisements with general treasury funds. See

id. at 15a. The parties disagreed, however, on the question whether BCRA’s reporting and disclaimer provisions were constitutional as applied to the advertisements. See id. at 16a.

7. The three-judge district court denied preliminary

injunctive relief on both of appellant’s claims. J.S. App.

4a-20a. Citizens United appealed that decision to this

Court, which dismissed the appeal for want of jurisdiction. 128 S. Ct. 1732 (2008) (No. 07-953). The district

court then granted summary judgment to the Commission “[b]ased on the reasoning of [the court’s] prior opinion” denying preliminary injunctive relief. J.S. App. 2a3a.

a. The district court rejected appellant’s challenge

with respect to the film itself on the ground that the film

is the functional equivalent of express advocacy. J.S.

App. 12a-15a. The court stated that the film “is susceptible of no other interpretation than to inform the elec-
10

torate 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. at 13a. The court held that, under

McConnell and WRTL, the film may constitutionally be

subject to BCRA’s corporate financing restriction. Id.

at 15a.

b. The district court also rejected appellant’s contention that BCRA’s reporting and disclaimer provisions

are unconstitutional as applied to appellant’s proposed

advertisements. J.S. App. 15a-19a. The court explained

that this Court in McConnell had upheld those provisions “for the ‘entire range of electioneering communications’ set forth in the statute.” Id. at 17a (quoting

McConnell, 540 U.S. at 196). The court rejected appellant’s contention that this aspect of McConnell had been

superseded by WRTL, stating that “[t]he only issue in

[WRTL] was whether speech that did not constitute the

functional equivalent of express advocacy could be

banned during the relevant pre-election period.” Ibid.

The district court also observed that, in various contexts, this Court “has written approvingly of disclosure

provisions triggered by political speech even though the

speech itself was constitutionally protected under the

First Amendment.” Id. at 18a.

The district court recognized that this Court in

McConnell had “suggest[ed] one circumstance in which

the requirement to disclose donors might be unconstitutional as-applied—if disclosure would lead to reprisals

and thus ‘impose an unconstitutional burden on the freedom to associate in support of a particular cause.’ ” J.S.

App. 18a (quoting McConnell, 540 U.S. at 198). The

court explained, however, that while appellant’s “memorandum in support of its motion [for a preliminary in-
11

1 Although at the present time Hillary: The Movie is no longer subject to the restrictions on electioneering communications—Senator

Clinton will not be a candidate for federal office again before 2012—

in our view the appeal is not moot in light of this Court’s holding in

WRTL that a comparable challenge remained justiciable. This Court

held that the timing of Section 203’s pre-election windows does not permit full litigation of as-applied challenges in advance, and that WRTL

had sufficiently established that the issue was likely to recur by “credibly claim[ing] that it planned on running ‘materially similar’ future

targeted [electioneering communications] mentioning a candidate

during the [pre-election window].” 127 S. Ct. at 2662-2663. The Court

accordingly held that WRTL’s challenge was “capable of repetition,

yet evading review,” and thus not moot. Id. at 2662. Appellant averred

in the district court that it planned to produce, and to promote, a film

about Senator Barack Obama; that the film would “raise[] similar issues

as Hillary” and would be an electioneering communication; and that

it desired to broadcast the film during the 60-day period before the

general election (in which Senator Obama is a candidate for federal

office). Affidavit of David N. Bossie ¶¶ 8-11 (attachment to Pl.’s S.J.

Mot.). That film apparently has since been released. See Citizens

United, Hype: The Obama Effect (visited Oct. 16, 2008) <http://www.

hypemovie. com>. More generally, appellant “reaffirm[ed] its intention

to do materially similar advertising in materially similar situations in

junction] states that there may be reprisals,” appellant

had “presented no evidence to back up this bald assertion.” Id. at 18a-19a. The court observed that appellant

“is thus in a similar position as the parties in McConnell

who made the same assertion but presented no specific

evidentiary support.” Id. at 19a.

ARGUMENT

The district court correctly granted the Commission’s motion for summary judgment, and that decision

rests on a straightforward application of settled legal

principles. The appeal should therefore be dismissed for

lack of a substantial federal question. In the alternative,

the judgment of the district court should be affirmed.1
12

the future.” Pl.’s Statement of Undisputed Material Facts ¶ 15

(attachment to Pl.’s S.J. Mot.). Accordingly, as in WRTL, appellant’s

challenge appears to be “capable of repetition, yet evading review.”

1. In McConnell, eight Members of this Court—including three Justices who would have held Section 203’s

prohibition on the use of corporate treasury funds for

“electioneering communications” to be unconstitutional

on its face—agreed that the reporting and disclaimer

requirements applicable to such communications are

facially valid. See pp. 5-7, supra. In particular, the

opinion for the Court stated that “Buckley amply supports application of [FECA’s] disclosure requirements

to the entire range of ‘electioneering communications.’”

540 U.S. at 196. That holding controls this case.

Contrary to appellant’s suggestion (J.S. 15-16), the

government does not contend that McConnell precludes

all as-applied challenges to BCRA’s reporting and disclaimer requirements. The Court in McConnell made

clear that as-applied challenges are available, stating

that the Court’s “rejection of plaintiffs’ facial challenge

to the requirement to disclose individual donors does not

foreclose possible future challenges to particular applications of that requirement.” 540 U.S. at 199. The

Court further explained that, to succeed in such an asapplied challenge, a plaintiff must demonstrate a “reasonable probability” that the forced disclosures “would

subject identified persons to ‘threats, harassment, and

reprisals.’” Id. at 198-199 (quoting Brown, 459 U.S. at

100). The Court observed that, although some plaintiffs

had expressed concern that disclosure might lead to

such harms, no plaintiff—including appellant—had

made a sufficient evidentiary showing that those injuries
13

2 Appellant notes (J.S. 20 n.9) that certain plaintiffs in McConnell

did attempt to make such a factual showing regarding disclosurerelated burdens. The Court deemed those submissions insufficient.

And in any event, appellant itself introduced no such evidence, either in

that case or this one. See McConnell, 251 F. Supp. 2d at 227-229 (discussing evidentiary submissions of NRA, ACLU, and three trade associations). 3 Appellant has maintained a separate segregated fund (commonly referred to as a political action committee, or PAC) for more than

13 years and has disclosed the names and addresses of its donors

pursuant to federal law. See Citizens United Political Victory Fund,

Statement of Organization (June 15, 1994) <http://query.nictusa.com/

cgi-bin/ fecimg/?94039043287+0>; FEC Disclosure Reports—Filer ID

were actually likely to occur. Id. at 199.2 The Court’s

statement in McConnell that BCRA’s reporting requirements may constitutionally be applied “to the entire

range of ‘electioneering communications,’” 540 U.S. at

196, combined with the Court’s express recognition that

those requirements are subject to a different sort of asapplied challenge, id. at 199, strongly suggests that the

Court did not contemplate as-applied challenges based

solely on the content of the relevant communication.

Similarly, in the instant case, the district court did

not read McConnell as foreclosing all as-applied challenges to BCRA’s reporting and disclaimer requirements. To the contrary, the district court specifically

noted that “[t]he McConnell Court did suggest one circumstance in which the requirement to disclose donors

might be unconstitutional as-applied—if disclosure

would lead to reprisals.” J.S. App. 18a. The district

court concluded, however, that appellant could not prevail in such an as-applied challenge because appellant

(like the plaintiffs in McConnell) had raised the possibility of reprisals but had offered no evidence to support

that concern. Ibid.

3

 In this Court, appellant does not
14

C00295527 (visited Oct. 16, 2008) <http://query.nictusa.com/cgi-bin/

fecimg/?C00295527>. During that time, appellant has disclosed approximately 1000 contributions from individuals in amounts of $200 or

more, including address and employer information for most of the individuals. See FEC, Individuals Who Gave to This Committee: Citizens

United Political Victory Fund (visited Oct. 15, 2008) <http://query.

nictusa.com/cgi-bin/com_ind/C00295527/>. Appellant’s inability to produce any evidence of actual reprisals is particularly striking in light of

the large volume of donor information that it has previously released.

contend that the district court overlooked any record

evidence showing a genuine burden.

2. Rather, appellant contends that reporting and

disclaimer requirements are automatically so burdensome as to trigger strict scrutiny and that they cannot

survive that exacting analysis when applied to communications that (like the advertisements promoting appellant’s movie) are not the functional equivalent of express

advocacy. Appellant’s argument lacks merit.

It is well established that First Amendment challenges to disclosure requirements are analyzed under a

standard that is more permissive than strict scrutiny.

This Court has used the formulation “exacting scrutiny”

and has required that the compelled disclosure bear a

“substantial relation” to a “sufficiently important” government interest. Buckley, 424 U.S. at 64, 66, 75 (citation omitted); accord Davis v. FEC, 128 S. Ct. 2759, 2775

(2008) (reiterating that “there must be ‘a “relevant correlation” or “substantial relation” between the governmental interest and the information required to be disclosed,’ and the governmental interest ‘must survive

exacting scrutiny’”) (quoting Buckley, 424 U.S. at 64);

McConnell, 540 U.S. at 196, 231.

“Exacting scrutiny,” as this Court applies it to disclosure requirements, is more permissive than the “strict
15

scrutiny” standard that appellant advocates. Strict

scrutiny requires that the chosen means be “narrowly

tailored” to serve a “compelling interest”; this Court in

Buckley required only a “substantial relation” to a “sufficiently important” interest. That standard corresponds to intermediate scrutiny. See, e.g., United

States v. Virginia, 518 U.S. 515, 533 (1996).

Citing a footnote in WRTL, appellant contends (J.S.

21) that “exacting scrutiny” is “strict scrutiny.” But

both the footnote in WRTL (127 S. Ct. at 2669 n.7) and

the passage of Buckley that the footnote cites (424 U.S.

at 44) used the phrase “exacting scrutiny” in striking

down expenditure limits, to which the Court applied

strict scrutiny. See id. at 44-45. And the Court in Buckley explicitly distinguished the scrutiny applicable to

such “limitations on core First Amendment rights of political expression,” ibid., from that applicable to encroachments on the “privacy of association” by disclosure requirements, id. at 64.

Appellant also cites First National Bank v. Bellotti,

435 U.S. 765, 786 (1978), and McIntyre v. Ohio Elections

Commission, 514 U.S. 334 (1995), in support of its contention that the strict-scrutiny standard applies to the

disclosure requirements at issue here. But in Bellotti,

as in WRTL, the Court applied strict scrutiny to a prohibition on corporate campaign expenditures, “a prohibition * * * directed at speech itself.” 435 U.S. at 786.

In McIntyre, the Court explicitly distinguished the state

law at issue, which prohibited the distribution of anonymous handbills addressing a variety of political issues,

see 514 U.S. at 338 n.3, from the disclosure requirements contained in federal campaign-finance laws, see

id. at 355. And because BCRA’s definition of “electioneering communication” is limited to specified categories
16

of “broadcast, cable, or satellite communication[s],” 2

U.S.C. 434(f)(3)(A)(i), the materials subject to the challenged disclosure requirements are far removed from

the “personally crafted statement of a political viewpoint” involved in McIntyre, 514 U.S. at 355. In any

event, the Court in McConnell resolved any confusion by

expressly stating that the proper standard for disclosure

obligations is the intermediate “important state interests” test. 540 U.S. at 196.

Appellant is also incorrect in arguing that this

Court’s cases treat disclosure as creating, per se, the

type of burden on protected speech that ought to trigger

strict scrutiny. Appellant cites the statement in Buckley

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

the First Amendment.” J.S. 20 (quoting Davis, 128

S. Ct. at 2774-2775) (in turn quoting Buckley, 424 U.S.

at 64). The statement that disclosure can be a burden

is far from a flat holding that it always is a burden. In

fact, the Court in Buckley immediately followed this

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

probability that the compelled disclosure * * * will

subject [the plaintiffs] to threats, harassment, or reprisals.” See Buckley, 424 U.S. at 74. Finding the evidence insufficient to demonstrate such a probability, the

Court upheld FECA’s disclosure provisions. Ibid. The

Court in McConnell employed the same mode of analysis

and arrived at the same conclusion. See McConnell, 540

U.S. at 197-199; see also McConnell, 251 F. Supp. 2d at

246-249. In Davis, the Court did not even reach the issue of constitutional burdens because the government’s

sole interest in the disclosure provisions at issue was the

administration of contribution limits that the Court had
17

4 Appellant also seeks (J.S. 16) to draw support for this notion from

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir.

2008). But in holding that legislatures’ power to “establish campaign

finance laws” is limited to regulating express advocacy and its functional equivalent, id. at 282-283, the Fourth Circuit was referring to

regulation of expenditures, and did not consider reporting requirements standing alone. See id. at 280.

struck down facially. See Davis, 128 S. Ct. at 2775.

Thus, none of these cases supports appellant’s claims

that disclosure is burdensome per se. Rather, when the

Court has addressed the issue, it has held that the government’s interests were sufficient to justify disclosure

in the absence of evidence of threats, harassment, and

reprisals.

3. In addition to seeking the application of strict

scrutiny, appellant argues (J.S. 18-19) that, because

WRTL precludes the application of Section 203’s corporate-financing restriction to appellant’s advertisements promoting its movie, application of BCRA’s reporting and disclaimer provisions is necessarily barred

as well. That argument rests on the premise that the

authority of Congress (and state legislatures) to require

disclosure of financing sources is coextensive with the

authority to bar the use of corporate treasury funds to

pay for particular communications. This Court has repeatedly rejected that proposition, and nothing in

WRTL endorsed it.4

In FEC v. Massachusetts Citizens for Life, Inc., 479

U.S. 238 (1986), for example, this Court held that the

defendant corporation was constitutionally entitled to

use its general treasury funds to engage in express advocacy in federal campaigns, notwithstanding the ban

imposed by 2 U.S.C. 441b(a) on use of corporate treasury funds for that purpose. 479 U.S. at 263-264. The
18

Court explained that, given the particular characteristics of the corporation involved, the corporation’s campaign-related spending would not pose the danger at

which Section 441b was directed. See ibid. The Court

made clear, however, that the corporation remained subject to the applicable FECA disclosure requirements.

See id. at 262 (explaining that “MCFL will be required

to identify all contributors who annually provide in the

aggregate $200 in funds intended to influence elections,

will have to specify all recipients of independent spending amounting to more than $200, and will be bound to

identify all persons making contributions over $200 who

request that the money be used for independent expenditures”).

The Court has taken a similar approach to corporate

spending in the context of ballot initiatives. In Bellotti,

this Court struck down a Massachusetts law that prohibited banks and business corporations from making certain expenditures for the purpose of influencing the outcome of public referenda. 435 U.S. at 767, 786-795. In

holding that the plaintiff bank had a First Amendment

right to engage in such advocacy, the Court specifically

contrasted public referenda with “the quite different

context of participation in a political campaign for election to public office.” Id. at 788 n.26. The Court observed, however, that even in the context of ballot initiatives, “[i]dentification of the source of advertising may

be required as a means of disclosure, so that the people

will be able to evaluate the arguments to which they are

being subjected.” Id. at 792 n.32. The Court’s subsequent decisions have continued to recognize that, while

advocacy of particular referendum outcomes is entitled

to full constitutional protection, persons who engage in

such advocacy may be required to identify their expendi-
19

tures and the sources of their funding. See Buckley v.

American Constitutional Law Found., Inc., 525 U.S.

182, 202-203, 205 (1999); Citizens Against Rent Control

v. City of Berkeley, 454 U.S. 290, 294 n.4, 298-299 (1981).

This Court has also held that “those who for hire attempt to influence legislation” may be required to disclose the sources and amounts of the funds they receive

to undertake lobbying activities. United States v. Harriss, 347 U.S. 612, 625-626 (1954). The Court explained

that, if Congress could not mandate the provision of that

information, “the voice of the people may all too easily

be drowned out by the voice of special interest groups

seeking favored treatment while masquerading as proponents of the public weal.” Id. at 625. In Bellotti, this

Court noted its prior First Amendment holdings “protect[ing] the right of corporations to petition legislative

and administrative bodies,” 435 U.S. at 792 n.31, but

cited Harriss with approval as support for the proposition that compelled disclosure of financing information

is permissible, id. at 792 n.32. The Court has thus recognized that legislatures may require the disclosure of

information concerning the source of funds used to influence public policy, even when that influence occurs outside the election context.

Many of these cases postdate Buckley, on which appellant principally relies. Appellant repeatedly invokes

the Court’s determination in Buckley that a prior FECA

disclosure provision was limited to spending that is “unambiguously related to the campaign of a particular federal candidate.” J.S. 16, 18 (quoting Buckley, 424 U.S.

at 80). Appellant’s reliance on that aspect of Buckley is

misplaced. The Court in Buckley announced the express

advocacy test (for which the reference to “unambiguously campaign related” spending, 424 U.S. at 81, was
20

5 The plaintiff in WRTL did not link BCRA’s corporate-financing and

disclosure requirements in the manner that appellant now advocates,

but instead affirmatively disavowed any challenge to BCRA’s reporting

and disclaimer provisions. WRTL’s brief in this Court explained: “Because WRTL does not challenge the disclaimer and disclosure requirements, there will be no ads done under misleading names. There will

continue to be full disclosure of all electioneering communications, both

as to disclaimers and public reports. The whole system will be transparent. With all this information, it will then be up to the people to decide how to respond to the call for grassroots lobbying on a particular

governmental issue.” Br. for Appellee at 49, WRTL, supra (Nos. 06-969

& 06-970).

shorthand) as a construction of the statutory phrase

“for the purpose of * * * influencing [federal elections].” Id. at 78-81; see p. 3, supra. This Court has

since recognized that Buckley’s “express advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory interpretation rather

than a constitutional command.” McConnell, 540 U.S. at

191-192; see WRTL, 127 S. Ct. at 2670 n.7 (opinion of

Roberts, C.J.). With respect to disclosure requirements

in particular, this Court’s precedents squarely refute

appellant’s contention that Congress’s power is limited

to communications that are “unambiguously related” to

an identified federal candidate’s campaign. The decisions discussed above make clear that compelled disclosure of financing information may be permissible even

when the disbursements in question have nothing to do

with any candidate election.

Nothing in WRTL unsettles that principle.5

 The lead

opinion determined that, when a particular “electioneering communication” can reasonably be viewed as “something other than as an appeal to vote for or against a

specific candidate,” Congress may not prohibit the use

of corporate or union money to finance the advertise-
21

ment. WRTL, 127 S. Ct. at 2670, 2673 (opinion of Roberts, C.J.). But the Court did not hold that this sort of

electioneering communication is constitutionally exempt

from any form of regulation. The fact that appellant’s

advertisements are not unambiguously election-related—i.e., the fact that they may reasonably be construed as something other than an appeal to vote against

Senator Clinton—does not eliminate the possibility that

the advertisements may influence electoral results. See

id. at 2659 (“We have long recognized that the distinction between campaign advocacy and issue advocacy

‘may often dissolve in practical application.’”) (quoting

Buckley, 424 U.S. at 42).

Disclosure requirements do not result in “suppression” of speech, however, and nothing in WRTL suggests

that these lesser burdens render disclosure requirements invalid as applied to issue advocacy. As this

Court has long recognized, disclosure regulations increase the range of information available to citizens and

thereby further First Amendment values. See McConnell, 540 U.S. at 197 (explaining that “[p]laintiffs’ argument for striking down BCRA’s disclosure provisions

* * * ignores the competing First Amendment interests of individual citizens seeking to make informed

choices in the political marketplace”) (quoting McConnell, 251 F. Supp. 2d at 237); Buckley, 424 U.S. at 82

(characterizing FECA disclosure requirements as “a

reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view”).

The corporate-financing prohibition that this Court invalidated in WRTL had no such similar potential to increase the range of information available to the public,

and WRTL therefore does not cast doubt on this Court’s
22

prior decisions upholding the application of disclosure

requirements to various forms of political advocacy.

4. Appellant next contends (J.S. 24-26) that the district court erred when it concluded from the evidence

that Hillary: The Movie is the functional equivalent of

express advocacy. The district court’s legal analysis

straightforwardly applies the holding of WRTL, and its

application of that holding to the facts presented here is

unexceptionable. Further review of the movie’s status

as an electioneering communication therefore is not warranted.

a. The lead opinion in WRTL held that BCRA’s restriction on corporate funding for electioneering communications is constitutional only insofar as it applies to

communications that are either “express advocacy or its

functional equivalent.” WRTL, 127 S. Ct. at 2664. The

lead opinion defined “the functional equivalent of express advocacy” as speech that is “susceptible of no reasonable interpretation other than as an appeal to vote

for or against a specific candidate.” Id. at 2667. The

opinion immediately then listed criteria relevant to the

application of this standard and explained why the advertisements at issue in WRTL could be so interpreted:

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

the functional equivalent of express advocacy. First,

their content is consistent with that of a genuine issue ad: The ads focus on a legislative issue, take a

position on the issue, exhort the public to adopt that

position, and urge the public to contact public officials with respect to the matter. Second, their content lacks indicia of express advocacy: The ads do

not mention an election, candidacy, political party, or
23

challenger; and they do not take a position on a candidate’s character, qualifications, or fitness for office.

Ibid. The FEC included these criteria, effectively verbatim, in its regulations implementing WRTL. See 11

C.F.R. 114.15.

As the district court correctly found, Hillary: The

Movie is the functional equivalent of express advocacy

under these criteria. First, Hillary: The Movie repeatedly adverts to Senator Clinton’s candidacy and her fitness for the office she sought. J.S. App. 13a n.12; Def.’s

Statement of Material Facts As to Which There Is No

Genuine Dispute ¶¶ 4-5 (FEC Facts) (attachment to

FEC Mot. for S.J.). For example, the film makes the

election a central focus, stating that Senator Clinton

“will run on attacking Republicans, and being the first

woman president—oh isn’t that amazing, she’s a woman

she can walk and talk,” and that “[o]ver the past 16

years Hillary Clinton has undoubtedly become one of

the most divisive figures in America. How this makes

her suited to unite the country as the next president is

troubling to many.” J.S. App. 13a-14a n.12. The movie

also attacks Senator Clinton’s character and fitness by

declaring that she is “steeped in sleaze,” “is not

equipped, not qualified to be our commander in chief,”

and lacks “the legislative gravitas and qualifications

enough to elect her [P]resident of the [U]nited [S]tates.”

Id. at 14a-15a n.12; FEC Facts ¶ 5(e). The film concludes that Senator Clinton poses a “fundamental danger * * * to every value that we hold dear.” J.S. App.

15a n.12.

Second, these key “indicia of express advocacy” are

not offset by any focus on a genuine legislative issue.

WRTL, 127 S. Ct. at 2667. Rather, the film focuses

exclusively on Senator Clinton’s character and fitness
24

6 Appellant briefly asserts that the district court erred by quoting a

statement that one of the movie’s interviewees made about the movie

in another forum, i.e., not in the movie itself. J.S. 24-25. But the district court made abundantly clear that its focus was the correct one—on

the “substance of the [electioneering] communication” itself. WRTL,

127 S. Ct. at 2666; see J.S. App. 13a-15a & n.12 (“[a]fter viewing The

Movie and examining the 73-page script at length,” the court identified

a dozen excerpts “indicative of the film’s message as a whole”).

for office and her actions in relation to certain controversies during Bill Clinton’s presidency. In the few

short portions of the film that touch on legislative issues,

the film consistently and explicitly uses those issues to

further attack Senator Clinton’s character and fitness

for the presidency. The inclusion of such issue-based

criticisms does not mean that appellant’s movie is genuine issue advocacy. See id. at 2667 n.6 (contrasting issue

advertisements in that case with hypothetical advertisement described in McConnell that “condemned [the candidate]’s record on a particular issue”). And the overwhelming majority of the movie’s advocacy criticizes

Senator Clinton’s character without reference to any

issues at all.

b. Appellant does not seriously contend otherwise.6

Rather, it asserts that Hillary: The Movie is constitutionally exempt from the corporate funding restriction

because the film purportedly contains no “actual words

* * * that constitute ‘an appeal to vote’” against Senator Clinton. J.S. 26. This argument fails as a matter

of law, for it seeks to reintroduce a test akin to the

“magic words” requirement that this Court rejected in

McConnell and WRTL. The WRTL test does not ask

whether the communication contains specific words constituting an appeal to vote, but instead whether the communication “is susceptible of no reasonable interpreta-
25

tion other than as an appeal to vote.” WRTL, 127 S. Ct.

at 2667 (emphasis added). As discussed above, the application of the test in WRTL further demonstrates that

the inquiry is holistic, examining whether the “focus” of

the communication is on a legislative issue or instead on

an election and the desirability or undesirability of one

candidate (or party) in that election. See id. at 2666-

2667. The lead opinion in WRTL looked for “indicia of

express advocacy,” id. at 2667 (emphasis added), not

just (as appellant proposes) for particular words that

were alone sufficient to constitute express advocacy.

See also id. at 2669 n.7 (declining to adopt, as a constitutional test, the interpretation requiring express advocacy that the Court adopted in Buckley to narrow an

ambiguous term in FECA). Indeed, as the lead opinion

in WRTL recognized throughout, Congress could permissibly regulate the “functional equivalent of express

advocacy.” Id. at 2664, 2665, 2667, 2668, 2669, 2670 (emphasis added). Appellant’s reading, under which Congress has the power to regulate express advocacy and

no more, is therefore unpersuasive. And as appellant

effectively concedes, it can prevail on this factual record

only if the absence of “magic words” is alone enough to

upset the district court’s finding that Hillary: The

Movie is functionally equivalent to express advocacy.

Because appellant’s legal contention fails, the district

court’s factual finding is dispositive here.

c. Appellant’s final argument (J.S. 26-28) is that the

Court in McConnell upheld the electioneering-communication financing restriction only as applied to “ads,”

and that although the statute makes no distinction based

on the length of the broadcast, the prohibition is unconstitutional as applied to a “full-length documentary

film[].” J.S. 27. This assertion (which the district court
26

did not separately address) is without merit. The

McConnell record included evidence of broadcast advocacy longer than the traditional 30- or 60-second spot,

such as paid, 30-minute “infomercials.” See McConnell,

251 F. Supp. 2d at 305-306, 316-317 (opinion of Henderson, J.); id. at 547-548 (opinion of Kollar-Kotelly, J.); id.

at 906 (opinion of Leon, J.). Thus, “to the extent that

[broadcast communications during the 30- and 60-day

periods] are the functional equivalent of express advocacy,” McConnell, 540 U.S. at 206, there is no basis in

the statute, in this Court’s decisions, or in the First

Amendment for treating those communications differently when they are broadcast in the form of a two-hour

film or when they otherwise vary in length or form from

standard television advertisements.

CONCLUSION

The appeal should be dismissed for lack of a substantial federal question. In the alternative, the judgment of

the district court should be affirmed.

Respectfully submitted.

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel

KEVIN DEELEY

Assistant General Counsel

ADAV NOTI

Attorney

Federal Election Commission

GREGORY G. GARRE

Solicitor General

MALCOLM L. STEWART

Deputy Solicitor General

WILLIAM M. JAY

Assistant to the Solicitor

General

OCTOBER 2008