UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

__________________________________________ 

) 

CITIZENS UNITED, ) 

) 

Plaintiff, ) 

) 

v. ) 

) Civ. No. 07-2240 (RCL) 

FEDERAL ELECTION COMMISSION, ) 

) 

Defendant. ) 

__________________________________________) 

MEMORANDUM OF CAMPAIGN LEGAL CENTER AND DEMOCRACY 21

AS AMICI CURIAE IN SUPPORT 

OF DEFENDANT FEDERAL ELECTION COMMISSION

Donald J. Simon 

(D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY, LLP 

1425 K Street, N.W. 

Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Fred Wertheimer 

(D.C. Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W. 

Suite 500 

Washington, D.C. 20005 

(202) 429-2008 

Counsel for Amicus Curiae

 Democracy 21 

J. Gerald Hebert 

(D.C. Bar No. 447676) 

Paul S. Ryan 

(D.C. Bar No. 502514) 

THE CAMPAIGN LEGAL CENTER 

1640 Rhode Island Ave., N.W. 

Suite 650 

Washington, DC 20036 

Tel: (202) 736-2200 

Counsel for Amicus Curiae

 Campaign Legal Center 

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TABLE OF CONTENTS 

Page

INTERESTS OF AMICI CURIAE ............................................................................................. 1 

SUMMARY OF ARGUMENT.................................................................................................... 1 

ARGUMENT................................................................................................................................. 4 

I. McConnell Upheld the Disclosure Requirements on Their Face. ................................. 4 

A. Contrary to Plaintiff’s Allegations, McConnell Reviewed the EC Disclosure 

Requirements under Intermediate Scrutiny................................................................... 4 

B. McConnell Made Clear that the EC Disclosure Requirements Are Supported by 

Important Governmental Interests................................................................................. 7 

II. The WRTL II Decision in No Way Undercuts the McConnell Decision 

Upholding the EC Disclosure Requirements as to the Entire Range of 

Electioneering Communications. .................................................................................. 9 

A. WRTL II Has No Direct Application to This Case Because the Supreme Court 

Reviewed Only the EC Funding Prohibition................................................................. 9 

B. The Legal Analysis in WRTL II Does Not Have Any Indirect Relevance to This 

Case. ............................................................................................................................ 10 

III. This Court Should Reject Plaintiff’s Attempt to Extend the Supreme Court’s 

Holding in WRTL II to Apply to the EC Disclosure Requirements......................... 11 

A. Plaintiff’s “Unambiguously Campaign Related” Requirement is Contradicted by 

Supreme Court Decisions Upholding Disclosure Laws in Non-Campaign Related 

Contexts....................................................................................................................... 13 

B. The EC Disclosure Requirements Are Constitutional as Applied to Plaintiff’s 

Advertisements............................................................................................................ 17 

CONCLUSION............................................................................................................................ 22 

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TABLE OF AUTHORITIES 

Cases: 

Alaska Right To Life Comm. v. Miles, 441 F.3d 773 (9th Cir. 2006).............................................. 5

Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999) .................................... 15, 16, 19 

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

California Pro-Life Council v. Getman, 328 F.3d 1088 (9th Cir. 2003) ................................ 16, 19 

Citizens against Rent Control v. City of Berkeley, 454 U.S. 290 (1981) ...................................... 16 

Communist Party v. Subversive Activities Control Bd., 367 U.S. 1 (1961) .................................... 7 

Commission on Independent Colleges and Universities v. New York Temporary State 

Commission, 534 F. Supp. 489 (N.D.N.Y. 1982) ......................................................................... 14

FEC v. Beaumont, 539 U.S. 146 (2003).......................................................................................... 6 

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986)...................................................... 21 

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

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ................................. 11, 15, 16, 19 

Florida League of Prof'l Lobbyists, Inc. v. Meggs, 87 F.3d 457 (11th Cir. 1996).................. 13, 15

Kimbell v. Hooper, 665 A.2d 44 (Vt. 1995)............................................................................ 14, 15

McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)...................................................... 5 

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

McConnell v. FEC, 251 F. Supp. 2d 176, 241 (D.D.C. 2003) .................................................... 6, 8

Minn. State Ethical Practices Bd. v. NRA, 761 F.2d 509 (8th Cir. 1985)................... 13, 14, 15, 19 

National Association of Manufacturers v. Taylor, No. 08-cv-00208-CKK (D.D.C. Apr. 

11, 2008) ....................................................................................................................................... 14 

U.S. v. Harriss, 347 U.S. 612 (1954) ................................................................................ 13, 14, 19 

Statutes and Legislative Materials: 

Federal Communications Act of 1934, 47 U.S.C. §§ 301 et seq. ................................................. 17

Federal Election Campaign Act, 2 U.S.C. §§ 431, et seq. .............................................................. 1 

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2 U.S.C. § 434(f) ............................................................................................................. 1, 2, 19, 22 

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

2 U.S.C. § 434(f)(3) .................................................................................................................. 1, 19 

2 U.S.C. § 441b(b)(2).............................................................................................................. 1, 2, 9 

2 U.S.C. § 441d ..................................................................................................................... 1, 2, 22

47 U.S.C. § 315(e)(1).................................................................................................................... 17 

47 U.S.C. § 315(e)(1)(B)............................................................................................................... 17 

47 U.S.C. § 315(e)(1)(B)(iii)......................................................................................................... 17

47 U.S.C. § 315(e)(2).................................................................................................................... 17 

H.R. REP. NO. 107-131(I) (2001) .................................................................................................. 20

Administrative Materials: 

11 C.F.R. § 104.20(c)(9). ................................................................................................................ 1

11 C.F.R. § 109.21(c).................................................................................................................... 21 

FEC Explanation and Justification, Political Committee Status, 72 Fed. Reg. 5595 (Feb. 

7, 2007), available at http://www.fec.gov/law/cfr/ej_compilation/2007/notice_2007-3.pdf ....... 21 

Miscellaneous Resources: 

CRS REPORT: GRASSROOTS LOBBYING: CONSTITUTIONALITY OF DISCLOSURE 

REQUIREMENTS (Jan. 12, 2007), available at

http://assets.opencrs.com/rpts/RL33794_20070112.pdf..........................................................14-15 

GAO REPORT, INFORMATION ON STATES’ LOBBYING DISCLOSURE REQUIREMENTS (May 

2, 1997).......................................................................................................................................... 15 

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INTERESTS OF AMICI CURIAE 

The present case raises important questions about the constitutionality of the 

“electioneering communications” disclosure provisions of Title II of the Bipartisan Campaign 

Reform Act of 2002 (BCRA), codified at 2 U.S.C. §§ 434(f), 441d, in light of the Supreme 

Court’s recent decision in FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007) (“WRTL II”). 

Amici Campaign Legal Center (CLC) and Democracy 21 have a longstanding, demonstrated 

interest in campaign finance disclosure and this interest is directly implicated here. 

SUMMARY OF ARGUMENT 

In this case, Citizens United, a not-for-profit corporation, wishes to use its general 

treasury funds to broadcast a film entitled “Hillary: the Movie” and three promotional 

advertisements referencing Senator Clinton shortly before the 2008 elections. Moreover, 

plaintiff seeks to make these communications in complete anonymity. 

 Plaintiff does not dispute that its proposed film and advertisements are electioneering 

communications (“EC”), as defined by the Federal Election Campaign Act (“FECA”), 2 U.S.C. 

§§ 431, et seq. See 2 U.S.C. § 434(f)(3) (defining an EC as a “broadcast, cable, or satellite 

communication” that “refers to a clearly identified federal candidate,” is “targeted to the relevant 

electorate,” and airs within sixty days of general election or thirty days of a primary election or 

nominating convention). Such communications are subject to a funding restriction that prohibits 

corporations and unions from using general treasury funds to finance such communications, see

2 U.S.C. § 441b(b)(2), as well as to disclosure requirements, including reporting requirements, 

see 2 U.S.C. § 434(f), and disclaimer requirements, see 2 U.S.C. § 441d.1

 Nor does plaintiff 

 

1

 The reporting requirement, 2 U.S.C. § 441b(b)(2), requires any person or entity that spends more 

than an aggregate of $10,000 in a calendar year on electioneering communications to disclose the names

and addresses of any contributor giving $1,000 or more to fund the electioneering communications. 2 

U.S.C. §§ 434(f)(1), (2)(F); 11 C.F.R. § 104.20(c)(9). The disclaimer requirement, 2 U.S.C. § 441d, 

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dispute that the EC funding restriction and disclosure requirements were upheld as facially 

constitutional a mere five years ago in McConnell v. FEC, 540 U.S. 93 (2003). 

 Instead, plaintiff challenges the constitutionality of the EC funding restriction, see 2 

U.S.C. § 441b(b)(2), as applied to its film and advertisements, and the EC reporting and 

disclaimer requirements (“disclosure requirements”), see 2 U.S.C. §§ 434(f), 441d, as applied to 

its film and advertisements. Amici will address only plaintiff’s challenge to the constitutionality 

of the EC disclosure requirements as applied to plaintiff’s proposed advertisements (Count 1 of 

the Amended Complaint). Plaintiff moved for summary judgment on this claim on May 16, 

2008, and amici oppose this motion.2

The basis for plaintiff’s as-applied challenge to the EC disclosure requirements is the 

Supreme Court’s recent decision in WRTL II. There, the Court held that the EC funding 

restriction was unconstitutional as applied to any electioneering communication that was not 

express advocacy or the functional equivalent of express advocacy. 127 S. Ct. at 2667 (defining 

the “functional equivalent of express advocacy” as communications that are “susceptible of no 

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

Plaintiff reads this holding expansively, arguing that the WRTL II Court implicitly found that 

 

requires an electioneering communication not authorized by a candidate committee to include the 

following information: (1) a statement orally and in text that identifies the person or entity “responsible 

for the content of this advertising,” and (2) the name and permanent street address, telephone number, or 

World Wide Web address of the person who paid for the electioneering communication. 

2

 Amici will not address plaintiff’s motion for summary judgment as to Counts 2 and 3 of the 

Amended Complaint, which concern the application of the EC funding restriction and disclosure 

requirements to “Hillary: the Movie.” Pl. SJ Motion (May 16, 2008) at 1. This Court has already found 

that the movie constitutes express advocacy under the WRTL standard. Opinion, Citizen United v. FEC, 

07-cv-02240 (Jan. 1, 2008) at 8-9. Consequently, there is no legal question as to whether the EC 

regulations can constitutionally be applied to the film, and the FEC has already moved to dismiss Count 3 

on this ground. Def.’s Mot. to Dismiss Counts 3 & 4 of Amnd. Complaint (Feb. 11, 2008). By contrast,

the FEC has conceded that plaintiff’s three advertisements do not meet the test for express advocacy 

established by WRTL. Id. at 11-12; Def.’s Mem. in Opp. to Pl.’s Mot. for Consol. at 8-9. 

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electioneering communications that do not meet its standard for express advocacy are whollyprotected issue speech. As such, plaintiff theorizes, these communications are not merely 

exempt from the funding restriction, but also from the disclosure requirements, and indeed from 

any campaign finance regulation at all. Plaintiff maintains that its proposed advertisements are 

not express advocacy or its functional equivalent, and therefore also constitute wholly-protected 

issue speech, exempt from both the funding restriction and the disclosure requirements. 

This argument has no merit. First, plaintiff’s assertion that WRTL II implicitly exempted 

communications that were not express advocacy or its functional equivalent from the EC 

disclosure requirements is pure conjecture. The WRTL II Court examined only the funding 

restriction, and the Court had no reason to, and indeed did not, consider whether the ads at issue 

in the case could constitutionally be subject to the EC disclosure requirements. The WRTL II

decision therefore provides no basis for this Court to overrule standing Supreme Court precedent 

upholding the disclosure requirements. McConnell, 540 U.S. at 194-202. Second, plaintiff’s 

argument completely disregards the scope of disclosure laws that have been upheld by the 

Supreme Court. Statutes requiring disclosure of lobbying activities, as well as ballot measure 

advocacy, have been found constitutional by the Supreme Court and lower federal courts. These 

cases contradict plaintiff’s assertion that issue advocacy can not be subject to disclosure laws and 

must be exempt from all regulation. 

For all these reasons, plaintiff’s motion for summary judgment on Count 1 of the 

Amended Complaint fails, and this court should deny plaintiff’s motion, as it denied plaintiff’s 

earlier motion for a preliminary injunction on the same claim. 

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ARGUMENT 

I. McConnell Upheld the EC Disclosure Requirements on Their Face. 

There is no dispute that McConnell rejected a facial challenge to the EC disclosure 

requirements. Applying intermediate scrutiny, eight Justices upheld both the reporting 

requirement and the disclaimer requirement, finding that these requirements were substantially 

related to important state interests.3 See 540 U.S. at 196 (Stevens, J.) and 321 (Kennedy, J.) 

(upholding the EC reporting requirements); 540 U.S. at 230 (Rehnquist, C.J., joined by all 

Justices except Thomas, J.) (upholding the EC disclaimer requirements). 

A. Contrary to Plaintiff’s Allegations, McConnell Reviewed the EC Disclosure 

Requirements Under Intermediate Scrutiny.

Relying upon the analysis in Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court in 

McConnell applied an intermediate level of scrutiny to the EC disclosure requirements. 

In Buckley, the Supreme Court reviewed FECA’s comprehensive reporting and 

recording-keeping requirements for political committees, see 424 U.S. at 60-74, as well as its 

more limited reporting requirements for independent expenditures, see id. at 74-82. The standard 

of review established by the Court was whether there was a “‘relevant correlation’ or ‘substantial 

relation’ between the governmental interest and the information required to be disclosed.” Id. at 

64. This intermediate standard of review was appropriate because disclosure requirements 

“appear to be the least restrictive means of curbing the evils of campaign ignorance and 

corruption that Congress found to exist.” Id. at 68 (footnotes omitted). 

 

3

 The three concurring Justices noted one exception, and found unconstitutional the requirement in 

section 202 of BCRA that speakers provide “advance disclosure” of executory contracts to purchase 

airtime for electioneering communications to be run in the future. 540 U.S. at 321 (Kennedy, J., 

concurring). 

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Although the majority opinion in McConnell did not explicitly state the standard of 

review applicable to the EC disclosure requirements, the opinion made clear that the Court was 

adopting Buckley’s standard of review. 540 U.S. at 196.4

 Moreover, the three concurring 

Justices expressly employed Buckley’s “substantial relation” standard, holding that disclosure 

requirements “do[] substantially relate” to the governmental interest in providing the electorate 

with information. Id. at 321 (Kennedy, J., concurring). 

Undeterred by this precedent, plaintiff asserts that this court should nonetheless apply 

strict scrutiny to the EC disclosure requirements. Plaintiff argues that “exacting scrutiny” is the 

proper standard for the review of disclosure requirements, and “exacting scrutiny” is the 

equivalent of strict scrutiny. Pl. SJ Motion (May 16, 2008), at 9 (“[T]he [Buckley] Court 

established the standard of review as requiring ... ‘exacting scrutiny’ (i.e., strict scrutiny)”). 

Plaintiff is attempting to exploit the inconsistent use of the term “exacting scrutiny” by 

the Supreme Court in past cases.5

 While it is true that this term has denominated different 

standards of review, the crucial point is that the actual “substantial relation” test applied in 

Buckley and McConnell bears no resemblance to strict scrutiny review. Even a cursory reading 

 

4

 See Alaska Right To Life Comm. v. Miles, 441 F.3d 773, 788 (9th Cir. 2006) (“The [McConnell] 

Court was not ... explicit about the appropriate standard of scrutiny with respect to disclosure 

requirements. However, in addressing extensive reporting requirements applicable to ... ‘electioneering

communications’ ... the Court did not apply ‘strict scrutiny’ or require a ‘compelling state interest.’ 

Rather, the Court upheld the disclosure requirements as supported merely by ‘important state interests.’”) 

(internal quotations omitted). 

5

 The Supreme Court has used the phrase “exacting scrutiny” to describe significantly different 

standards of review. In Buckley, the court applied “exacting scrutiny” by reviewing the challenged 

disclosure provisions for a “relevant correlation” or “substantial relation” to a “substantial” governmental 

interest.” 424 U.S. at 64. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Supreme 

Court also applied “exacting scrutiny” to a state ballot measure disclaimer requirement but in contrast 

reviewed whether the requirement was “narrowly tailored serve an overriding state interest.” Id. at 347. 

Compare also Citizens against Rent Control v. City of Berkeley, 454 U.S. 290, 299 (1981) (applying 

“exacting scrutiny” to ballot measure committee contribution limit by assessing whether law “advance[s] 

a legitimate governmental interest significant enough to justify its infringement of First Amendment 

rights”) (emphasis added). 

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of Buckley and McConnell indicates that the Supreme Court did not consider whether the 

challenged disclosure requirements implicated a “compelling state interest,” nor whether the 

requirements were “narrowly tailored” to serve that interest. 

Indeed, given that the Buckley Court recognized that disclosure requirements are the 

“least restrictive” of campaign finance regulations, it would be illogical to subject disclosure 

requirements to the strictest level of scrutiny. On the spectrum of campaign finance regulations, 

the Buckley Court realized that expenditure limits were the most burdensome regulations because 

they bar individuals from “any significant use of the most effective modes of communication.” 

424 U.S. at 19-20. Consequently, expenditure restrictions, such as the EC funding restriction 

reviewed in WRTL II, are subject to strict scrutiny. Id. at 44-45; McConnell, 540 U.S. at 205. 

Contribution limits are deemed less burdensome of speech because they “permit[] the symbolic 

expression of support evidenced by a contribution but do[] not in any way infringe the 

contributor’s freedom to discuss candidates and issues.” McConnell, 540 U.S. at 135; see also

FEC v. Beaumont, 539 U.S. 146, 161 (2003). They thus warrant “less rigorous” review. 540 

U.S. at 137. On the opposite end of the spectrum are disclosure requirements, described as the 

“least restrictive” requirements because they “impose no ceiling on campaign-related activities.” 

Buckley, 424 U.S at 64, 68; see also McConnell, 540 U.S. at 201 (observing that disclosure 

requirements are “‘d[o] not prevent anyone from speaking’”) (citing McConnell v. FEC, 251 F. 

Supp. 2d 176, 241 (D.D.C. 2003) (per curiam)). Logic thus dictates that disclosure requirements 

should receive less stringent review than limits on expenditures or contributions. It would 

confound reason to apply strict scrutiny both to expenditure limits, the most restrictive campaign 

finance regulation, and disclosure requirements, the least restrictive regulation, as plaintiff urges 

here. 

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B. McConnell Made Clear that the EC Disclosure Requirements Are Supported by 

Important Governmental Interests. 

The McConnell Court’s analysis of the state interests supporting the Title II disclosure 

requirements also has its roots in the Buckley decision. 

In Buckley, the Court acknowledged that “compelled disclosure has the potential for 

substantially infringing the exercise of First Amendment rights,” but found “that there are 

governmental interests sufficiently important to outweigh the possibility of infringement, 

particularly when the ‘free functioning of our national institutions’ is involved.” Id. at 66 

(quoting Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 97 (1961)). The 

Court then identified three “substantial” governmental interests served by disclosure 

requirements. First, “disclosure provides the electorate with information ‘as to where political 

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.” Id. at 66-67 (footnotes omitted). In addition to this 

informational interest, the Court also found that “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. Finally, “recordkeeping, reporting, and disclosure requirements are 

an essential means of gathering the data necessary to detect violations” of the federal campaign 

finance laws. Id. at 67-68. 

The Supreme Court relied upon this analysis in McConnell. The majority held that the 

three “important” state interests identified by Buckley – providing the electorate with 

information, deterring corruption, and enabling enforcement of the law – “apply in full” to the 

EC disclosure requirements. 540 U.S. at 196. The Court also noted that striking down the 

disclosure provisions would not serve the First Amendment interests of the public: 

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Plaintiffs’ disdain for BCRA's disclosure provisions is nothing short of surprising. 

... Curiously, Plaintiffs want to preserve the ability to run these advertisements 

while hiding behind dubious and misleading names like: ‘The CoalitionAmericans Working for Real Change’ (funded by business organizations opposed 

to organized labor), ‘Citizens for Better Medicare’ (funded by the pharmaceutical 

industry), ‘Republicans for Clean Air’ (funded by brothers Charles and Sam 

Wyly). ... Given these tactics, Plaintiffs never satisfactorily answer the question 

of how ‘uninhibited, robust, and wide-open’ speech can occur when organizations 

hide themselves from the scrutiny of the voting public. Plaintiffs’ argument for 

striking down BCRA’s disclosure provisions does not reinforce the precious First 

Amendment values that Plaintiffs argue are trampled by BCRA, but ignores the 

competing First Amendment interests of individual citizens seeking to make 

informed choices in the political marketplace.” 

Id. at 196-97 (quoting McConnell, 251 F. Supp. 2d at 237 (internal citations omitted) (emphasis 

added). 

Importantly, the Court upheld the EC disclosure requirements as “to the entire range of 

‘electioneering communications,’” 540 U.S. at 196, even though it had acknowledged that the 

definition of “electioneering communications” potentially encompassed both express advocacy 

and “genuine issue ads.” Id. at 206 (noting that “precise percentage of issue ads that clearly 

identified a candidate and were aired during those relatively brief preelection timespans but had 

no electioneering purpose is a matter of dispute between the parties”). In so holding, the 

majority suggested that the governmental interests that had led the Buckley Court to uphold 

FECA’s disclosure provisions also supported disclosure of electioneering communications, even 

if some percentage of “genuine issue ads” were covered by the EC disclosure requirement. 

 In sum, review of the McConnell decision to uphold the EC disclosure requirements 

yields two key propositions. First, the EC disclosure requirements are subject to intermediate 

scrutiny; and second, the governmental interests in providing the electorate with information, 

deterring corruption, and enforcing the law apply to the “entire range” of electioneering 

communications, without an exception for “genuine issue advertisements.” 

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II. The WRTL II Decision in No Way Undercuts the McConnell Decision Upholding 

the EC Disclosure Requirements as to the Entire Range of Electioneering 

Communications. 

A. WRTL II Has No Direct Application to This Case Because the Supreme Court Reviewed 

Only the EC Funding Prohibition.

 The Court’s decision in WRTL II did not even consider, let alone invalidate, the EC 

disclosure requirements. 

 The narrow focus of WRTL II is apparent on the face of the decision. The first sentence 

of the controlling opinion announces that the Court is considering the constitutionality of the 

funding prohibition, 2 U.S.C. § 441b(b)(2), as applied to WRTL’s specific ads. The Court did 

not even mention the EC disclosure requirements, and did not discuss the definition of 

“electioneering communication” beyond setting forth the text of the definition in a footnote. 127 

S. Ct. at 2660 & n.1. 

Indeed, the plaintiff WRTL explicitly did not seek review of the reporting and disclaimer 

provisions of the law. In the original complaint filed by WRTL that led to the Supreme Court 

decision, the plaintiff made clear that, “WRTL does not challenge the reporting and disclaimer 

requirements for electioneering communications, only the prohibition on using its corporate 

funds for its grass-roots lobbying advertisements.” Complaint at ¶ 36. 

The narrow scope of its suit was repeatedly stressed by WRTL in its brief to the Supreme 

Court. The introductory section of the brief stated: “WRTL challenged the prohibition, not 

disclosure, and was prepared to provide the full disclosure required under BCRA.” Brief for 

Appellee, FEC v. Wisconsin Right to Life, No. 06-969 (March 2006) at 10; see also id. at n.18 

(“Full disclosure of WRTL’s identity and activities would have been forthcoming.”); id. at 29 

n.39 (“WRTL did not challenge the electioneering communication disclosure requirements.”). 

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WRTL stressed to the Court that its challenge to the statute, if successful, would leave a fully 

“transparent” system: 

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 disclaimer 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 government issue. And to the extent that there is a 

scintilla of perceived support or opposition to a candidate, ... the people, with full 

disclosure as to the messenger, can make the ultimate judgment. 

Id. at 49. 

 Given that the plaintiff in WRTL II did not challenge the constitutionality of the EC 

disclosure requirements and the Supreme Court accordingly did not address these requirements, 

the WRTL II decision provides no basis for overturning the 8-1 decision of the McConnell Court 

to uphold the Title II disclosure requirements. 

B. The Legal Analysis in WRTL II Does Not Have Any Indirect Relevance to This Case. 

The Court in WRTL II reviewed the constitutionality of the Title II funding restriction – 

not its disclosure requirements. Because the funding restriction and the disclosure requirements 

are subject to different standards of scrutiny and are supported by different governmental 

interests, the WRTL II Court’s assessment of the former has no bearing on the constitutionality of 

the latter. 

First, wholly different constitutional standards of review apply to the two provisions. 

Whereas a reporting requirement is constitutional so long as there is a “‘relevant correlation’ or 

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

disclosed,” Buckley, 424 U.S. at 64, a restriction on political spending is constitutional only if it 

meets the strict scrutiny requirement of being “narrowly tailored to further a compelling 

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interest,” WRTL II, 127 S. Ct. at 2671 (quoting McConnell, 540 U.S. at 205; First Nat’l Bank of 

Boston v. Bellotti, 435 U.S. 765, 786 (1978); Buckley, 424 U.S. at 44-45). Examining the source 

prohibition, and that provision alone, the Court in WRTL II applied strict scrutiny. The WRTL II

Court did not consider whether the disclosure requirements of Title II could be constitutionally 

applied to the ads at issue under the intermediate standard of review applicable to such disclosure 

laws. 

Second, disclosure requirements serve different governmental interests than do 

restrictions on expenditures. The Supreme Court considered only two governmental interests in 

its review of the funding restriction in WRTL II: the government’s interest in preventing actual or

apparent corruption, and its interest in avoiding the “corrosive and distorting effects of immense 

aggregations of wealth that are accumulated with the help of the corporate form.” WRTL II, 127 

S. Ct. at 2672. Indeed, these two goals are the only state interests recognized by the Supreme 

Court as sufficiently compelling to justify a restriction on expenditures or contributions. By 

contrast, disclosure provisions serve a broader range of governmental goals, including providing 

the electorate with information and enabling meaningful enforcement of the substantive 

provisions of the federal campaign finance laws. Buckley, 424 U.S. at 66-68. The WRTL II

Court’s decision that the state’s anti-corruption and “corporate form” interests did not justify an 

expenditure restriction thus does not speak to whether the state’s informational and enforcement 

interests will support a disclosure requirement. 

III. This Court Should Reject Plaintiff’s Attempt to Extend the Supreme Court’s 

Holding in WRTL II to Apply to the EC Disclosure Requirements. 

As set forth in Section II, supra, the EC funding restriction reviewed in WRTL II and the 

disclosure requirements at issue here are fundamentally dissimilar. Plaintiff attempts to bridge 

the divide by arguing that the WRTL II Court found that electioneering communications that are 

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not express advocacy are wholly-protected issue speech, and as such, are exempt from both the 

funding restriction and the disclosure requirements. 

Indeed, plaintiff takes this argument even further. It argues that the threshold inquiry in 

the context of campaign finance regulation is whether the speech at issue is express advocacy, or 

in plaintiff’s words, is “unambiguously related to the campaign of a particular candidate.” 

According to plaintiff, only speech which meets this “unambiguously campaign related” test can 

be constitutionally subject to regulation. See Pl. SJ Br. at 20 (arguing that speech that “is not

unambiguously campaign related” must be “exempted from all regulation”). 

Plaintiff’s “unambiguously campaign related” test has no basis in the law. The phrase 

appeared in Buckley, but was merely incidental to the Supreme Court’s discussion of its 

narrowing construction of the term “expenditure” to encompass only express advocacy. 424 

U.S. at 80.6

 The phrase certainly was not adopted as an independent constitutional test, and has 

not even been mentioned, much less applied in any subsequent Supreme Court case. It is simply 

plaintiff’s attempt to replace the actual standard of review for disclosure requirements – i.e. that 

there exist a “‘relevant correlation’ or ‘substantial relation’ between the governmental interest 

 

6

 Reviewing the context in which the language “unambiguously campaign related” appeared in 

Buckley illustrates the ancillary nature of the phrase. To address “serious problems of vagueness,” the 

Buckley Court construed the term “expenditure” in FECA to reach only “funds used for communications 

that expressly advocate the election or defeat of a clearly identified candidate.” Buckley, 424 U.S. at 76, 

80. The Court then stated that “this reading is directed precisely to that spending that is unambiguously 

related to the campaign of a particular federal candidate.” Id. at 80 (emphasis added). It is clear that the 

only constitutional “test” created by the Buckley Court was the express advocacy standard, and the 

“unambiguously campaign related” language merely described its application in this context. 

Furthermore, the express advocacy standard is also not relevant to this case. It was created to 

alleviate concerns of unconstitutional vagueness, whereas the “definition of ‘electioneering 

communication’ raises none of the vagueness concerns that drove [the Court’s] analysis in Buckley.” 

McConnell, 540 U.S. at 194. As stated by the McConnell Court in its consideration of the EC disclosure 

requirements, “the constitutional objection that persuaded the Court in Buckley to limit FECA’s reach to 

express advocacy is simply inapposite here.” Id. 

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and the information required to be disclosed” – with a test more to its liking. 424 U.S. at 64. 

 This court should reject the plaintiff’s invented test, and adhere to the established 

standard of review. Pursuant to the correct standard, requiring disclosure of even those 

electioneering communications that do not meet WRTL II’s test for express advocacy is 

constitutional because such disclosure is substantially related to important governmental 

interests. 

A. Plaintiff’s “Unambiguously Campaign Related” Requirement is Contradicted by Supreme 

Court Decisions Upholding Disclosure Laws in Non-Campaign Related Contexts. 

The error of plaintiff’s argument is underscored by two types of disclosure laws 

regulating issue advocacy that have been approved by the Supreme Court, namely laws relating 

to lobbying and ballot measure advocacy. These statutes confirm that the constitutionality of a 

disclosure requirement does not depend on whether the regulated speech is “unambiguously 

campaign related” or constitutes express advocacy under the standard established by WRTL II. 

 Both federal and state courts have consistently upheld lobbying disclosure statutes. The 

leading Supreme Court case on lobbying disclosure, U.S. v. Harriss, 347 U.S. 612 (1954), 

considered the Federal Regulation of Lobbying Act, which required every person “receiving any 

contributions or expending any money for the purpose of influencing the passage or defeat of 

any legislation by Congress” to report information about their clients and their contributions and 

expenditures. Id. at 615 & n.1. After evaluating the Act’s burden on First Amendment rights, 

the Court held that lobbying disclosure was justified by the state’s informational interests.7

 The 

Supreme Court explained that: 

 

7

 The Harriss decision has been followed by lower courts which have uniformly upheld state 

lobbying statutes on the grounds that the state’s informational interest in lobbying disclosure outweighs 

the associated burdens. Florida League of Prof'l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 460 (11th Cir. 

1996) (upholding a state lobbying disclosure statute in light of the “interest of voters” in receiving

information to “apprais[e] the integrity and performance of officeholders and candidates”); Minnesota 

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Present-day legislative complexities are such that individual members of 

Congress cannot be expected to explore the myriad pressures to which they are 

regularly subjected. Yet full realization of the American ideal of government by 

elected representatives depends to no small extent on their ability to properly 

evaluate such pressures. ... Toward that end, Congress has not sought to prohibit 

these pressures. It has merely provided for a modicum of information from those 

who for hire attempt to influence legislation or who collect or spend funds for that 

purpose. 

Id. at 625-626. 

The fact that the Lobbying Act was unrelated to candidate campaigns and instead 

pertained only to issue speech was not constitutionally significant. The Supreme Court 

nonetheless found that the disclosure it required served the state’s informational interest and 

“maintain[ed] the integrity of a basic governmental process.” Id. at 625. See also National 

Association of Manufacturers v. Taylor, No. 08-cv-00208-CKK (D.D.C. Apr. 11, 2008) 

(dismissing First Amendment challenge to federal lobbying disclosure law as recently amended 

by the Honest Leadership and Open Government Act of 2007). 

Further, the Supreme Court has recognized that even “grassroots” or “indirect” lobbying, 

i.e. communications to persuade the public to lobby government officials, may be 

constitutionally subject to disclosure. The Harriss case upheld not only disclosure of lobbyists’ 

direct communications with legislators, but also their “artificially stimulated” public “letter 

campaign[s]” to Congress. Id. at 620; see also id. at 621 n.10 (noting that the Act covered 

lobbyists’ “initiat[ion] of propaganda from all over the country, in the form of letters and 

telegrams,” to influence the acts of legislators); see also CRS REPORT: GRASSROOTS LOBBYING:

 

State Ethical Practices Board v. NRA, 761 F.2d 509, 512 (8th Cir. 1985) (finding that “the State of 

Minnesota’s interest in disclosure outweighs any infringement of the appellants’ first amendment rights”); 

Commission on Independent Colleges and Universities v. New York Temporary State Commission, 534 F. 

Supp. 489, 494 (N.D.N.Y. 1982) (“The lobby law serves to apprise the public of the sources of pressure

on government officials, thus better enabling the public to access their performance.”); Kimbell v. 

Hooper, 665 A.2d 44, 49 (Vt. 1995) (“Vermont’s lobbyist disclosure law is a reasonable means of 

evaluating the lobbyist’s influence on the political process.”). 

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CONSTITUTIONALITY OF DISCLOSURE REQUIREMENTS (Jan. 12, 2007), available at

http://assets.opencrs.com/rpts/RL33794_20070112.pdf (noting that state and federal courts have 

followed Harriss to uphold state disclosure laws that reach “indirect” or “grassroots” lobbying).8

 

Such communications generally describe a legislative action favored by the sponsor, and urge the 

public to contact the relevant lawmakers regarding this action. See, e.g., Minn. State Ethical 

Practices Bd. v. NRA, 761 F.2d 509, 511 (8th Cir. 1985) (upholding Minnesota disclosure 

requirement as applied to four communications sent from the NRA to its Minnesota members 

urging them to contact their state legislators about pending legislation). That these “classic” 

issue ads can be subject to disclosure gives lie to plaintiff’s claim that only “unambiguously 

campaign related” communications can be constitutionally regulated. 

In a similar vein, the Supreme Court has expressed approval of statutes requiring the 

disclosure of expenditures relating to ballot measures, although such statutes also lack a 

connection to candidate campaigns and thus implicate none of the corruption concerns raised by 

candidate campaigns. See, e.g., Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 203 

(1999) (noting that “ballot initiatives do not involve the risk of ‘quid pro quo’ corruption present 

when money is paid to, or for, candidates”). In First National Bank of Boston v. Bellotti, 435 

U.S. 765 (1978), the Court struck down limits on corporate expenditures to influence ballot 

measures, but did so in part because “[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 

 

8

 Over twenty states have laws that require disclosure of expenditures funding grassroots lobbying. 

GAO REPORT, INFORMATION ON STATES’ LOBBYING DISCLOSURE REQUIREMENTS, B-129874 (May 2, 

1997), at 2. These statutes have been routinely upheld by the courts. See, e.g., Florida League of Prof'l 

Lobbyists, Inc., 87 F.3d at 460-61 (upholding Florida law which required disclosure of expenditures both 

for direct lobbying and for indirect lobbying activities which did not involve contact with governmental 

officials); Minn. State Ethical Practices Bd., 761 F.2d at 512 (upholding Minnesota statute requiring 

disclosure from groups who conduct grassroots lobbying campaigns); Kimbell, 665 A.2d at 46 (upholding 

provisions of Vermont statute requiring reporting of indirect contacts to influence legislators, such as 

“solicitation of others to influence legislative or administrative action”). 

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which they are being subjected.” 435 U.S. at 792 n.32. Citing Buckley and Harriss, the Court 

took note of “the prophylactic effect of requiring that the source of communication be 

disclosed.” Id. 

The Court again recognized this state “informational interest” in Citizens Against Rent 

Control v. City of Berkeley, 454 U.S. 290 (1981), where it considered a challenge to the City’s 

ordinance that limited contributions to committees formed to support or oppose ballot measures. 

Although the Court struck down the contribution limit, it based this holding in part on the 

disclosure that the law required from ballot measure committees. See 454 U.S. at 298 (“[T]here 

is no risk that the Berkeley voters will be in doubt as to the identity of those whose money 

supports or opposes a given ballot measure since contributors must make their identities known 

under [a different section] of the ordinance, which requires publication of lists of contributors in 

advance of the voting.”); see also Am. Constitutional Law Found., 525 U.S. at 205 (invalidating 

several Colorado regulations concerning the state’s ballot petition process but upholding the 

regulation requiring “sponsors of ballot initiatives to disclose who pays petition circulators, and 

how much” because this requirement informed voters of “the source and amount of money spent 

by proponents to get a measure on the ballot”). 

These precedents led the Ninth Circuit to hold that, “[g]iven the Supreme Court’s 

repeated pronouncements, we think there can be no doubt that states may regulate express ballotmeasure advocacy through disclosure laws.” California Pro-Life Council v. Getman, 328 F.3d 

1088, 1104 (9th Cir. 2003), appeal after remand California Pro-Life Council, Inc. v. Randolph, 

507 F.3d 1172 (9th Cir. 2007). It also noted that “[t]hough the Buckley Court discussed the value 

of disclosure for candidate elections, the same considerations apply just as forcefully, if not more 

so, for voter-decided ballot measures.” Id. at 1105. Otherwise stated, the court recognized that 

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the informational interest recognized by Buckley applies equally to ballot measure disclosure, 

although the underlying speech is neither “campaign related” nor express advocacy under the 

standard established by WRTL II.

9

B. The EC Disclosure Requirements Are Constitutional as Applied to Plaintiff’s 

Advertisements. 

As discussed in the foregoing sections, the applicable constitutional standard here is not 

plaintiff’s “unambiguously campaign related” test, rather the “substantial relation” standard set 

forth in Buckley. Under this standard, the application of the EC disclosure requirements to 

plaintiff’s advertisements, i.e. to non-express-advocacy electioneering communications, is 

constitutional because such disclosure is “substantially related” to the governmental interests in 

informing the electorate and enforcing federal campaign finance laws. 

1. Informational Interest 

The principal state interest justifying compelled disclosure is its interest in “providing the 

electorate with information.” McConnell, 540 U.S. at 196. Indeed, disclosure laws have been 

sustained on the basis of this interest alone. See, e.g., Buckley, 424 U.S. at 80-81 (upholding 

FECA’s independent expenditure disclosure provisions although they did not “stem corruption or 

 

9

 Another example of a disclosure system that regulates “pure” issue advocacy is the political 

broadcast disclosure requirements of the Federal Communications Act of 1934, 47 U.S.C. §§ 301 et seq. 

Section 504 of BCRA amended the Communication Act to require television broadcasters to keep records 

of requests to broadcast “message[s]” about “a national legislative issue of public importance” or “any 

political matter of national importance.” 47 U.S.C. §§ 315(e)(1)(B), (e)(1)(B)(iii). The records must 

include information about the name of the person purchasing the time, and in the case of an entity, a list 

of the chief executive officers or members of the executive committee or of the board of directors of such 

entity. 47 U.S.C. § 315(e)(2). Because these records must be made available to the public, 47 U.S.C. § 

315(e)(1), this statute ensures that the name of every person and entity wishing to broadcast an “issue ad” 

will be publicly disclosed. 

 Although this statute thus regulates issue advocacy in arguably its “purest” form, the Supreme 

Court upheld the statute in McConnell. The Court determined that the requirements “seem likely to help 

the FCC determine whether broadcasters are carrying out their ‘obligations to afford reasonable 

opportunity for the discussion of conflicting views on issues of public importance,’ and whether 

broadcasters are too heavily favoring entertainment.” 540 U.S. at 240 (internal citations omitted). 

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its appearance” but rather “serve[d] another, informational interest,” namely “increasing the fund 

of information concerning those who support the candidates”); see also discussion of ballot 

measure cases in Section III.A supra. Plaintiff offers no reason why this interest would not 

support application of the EC disclosure requirements to its proposed advertisements, and to nonexpress-advocacy electioneering communications more generally.10

First, the WRTL II Court recognized that even those electioneering communications that 

do not constitute express advocacy or its functional equivalent are not necessarily “pure” issue 

advocacy. Instead, such communications will often consist of a mix of issue advocacy and 

electioneering. 127 S. Ct. at 2669 (acknowledging that distinction between electioneering and 

issue advocacy “may often dissolve in practical application,” and that “discussion of issues” may 

be “pertinent in an election”) (internal quotations omitted). WRTL II’s test for express advocacy 

is whether an ad is “susceptible of a no reasonable interpretation other than as an appeal to vote 

for or against a specific candidate.” Id. at 2667. This means that an electioneering 

communication that is susceptible of dual interpretations – both as issue advocacy and as 

electioneering – will not be deemed express advocacy. 

Although the WRTL II court determined that such a dual-interpretation ad could not be 

subjected to the heavy burden of the EC funding restriction, such ads certainly can be subject to 

the far less onerous EC reporting and disclaimer requirements. It is important to remember that 

an electioneering communication, by definition, is an advertisement broadcast in very close 

 

10

 Amici note that plaintiff has not even attempted to meet the rigorous standard set by the Buckley

decision for an as-applied exemption from a political disclosure statute based upon a “reasonable 

probability” that the disclosure will subject the regulated parties to “threats, harassment, or reprisals from 

either Government officials or private parties.” Buckley, 424 U.S. at 74. See also McConnell, 540 U.S. at 

198, 199 (reiterating Buckley’s standard for as-applied challenges). See also Opinion, Citizen United v. 

FEC, 07-cv-02240 (Jan 15, 2008) at 111 (noting that plaintiff “states that there may be reprisals, but it has 

presented no evidence to back up this bald assertion”); Pl. SJ Br. at 25-32 (discussing only general 

burdens of disclosure). 

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proximity to a federal election that refers to a clearly identified candidate. As such, it is likely to 

have an effect on a federal election. If the EC disclosure requirements do not encompass the 

“entire range of electioneering communications,” the public will have difficulty discovering who 

is broadcasting such communications, and will be deprived of information crucial to their 

assessment of the ads and the formulation of their electoral decisions. Therefore, even where an 

electioneering communication does not meet WRTL II’s high bar for express advocacy, it most 

likely will be susceptible of an interpretation as an electioneering message, and thus will directly 

implicate the state’s informational interest in “aid[ing] the voters in evaluating those who seek 

federal office.” Buckley, 424 U.S. at 66-67. 

Furthermore, as the case law on lobbying and ballot measure advocacy demonstrates, the 

state has an interest in providing information to the public about even those activities that 

constitute “pure” issue advocacy. See, e.g., Harriss, 347 U.S. at 625 (lobbying and grassroots 

lobbying disclosure); Am. Constitutional Law Found., 525 U.S. at 205 (ballot measure 

disclosure). See also McConnell, 540 U.S. at 240 (upholding political broadcast disclosure 

requirements), discussed in n.9 supra. Indeed, the courts have consistently upheld statutes 

requiring the disclosure of “grassroots lobbying” communications – a far broader category of 

advertisements than electioneering communications since grassroots lobbying ads, for instance, 

do not necessarily mention a candidate or air in the pre-election period as the EC regulations 

would require. See 2 U.S.C. § 434(f)(3)(A)(i). There is value in disclosure connected to issue 

advocacy, as the Ninth Circuit recognized in the context of ballot measure advocacy: “[M]oney 

produces a cacophony of political communications through which [] voters must pick out 

meaningful and accurate messages. ... Given the complexity of the issues . . . we think being 

able to evaluate who is doing the talking is of great importance.” Calif. Pro-Life Council, 328 

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F.3d at 1105. See also Bellotti, 435 U.S. at 792 n.32 (noting disclosure relating to ballot measure 

issue advocacy is necessary “so that the people will be able to evaluate the arguments to which 

they are being subjected”).11 Thus, even if plaintiff’s advertisements are deemed pure issue 

speech, the public has an interest in receiving information about the sponsor and funders of the 

ads in order to judge the legitimacy and credibility of their messages. 

2. Enforcement interest 

McConnell also upheld FECA’s disclosure requirements based upon a second 

governmental interest, namely “gathering the data necessary to enforce more substantive 

electioneering restrictions.” 540 U.S. at 196. See also Buckley 424 U.S. at 67-68 (disclosure 

“gather[s] the data necessary to detect violations of the contribution limitations”). This interest 

is not any less relevant when applied to electioneering communications that do not constitute 

express advocacy or its functional equivalent under WRTL II. 

Without disclosure of the “entire range” of electioneering communications, the FEC will 

be hampered in its efforts to enforce the federal campaign finance laws in several respects. First, 

comprehensive disclosure enables the FEC to review the activities of groups active in federal 

elections and to determine whether the electioneering communications of such groups may be 

 

11 Congressional supporters of BCRA were also well aware of the need for comprehensive 

disclosure. As pointed out by Representatives Steny H. Hoyer, Chaka Fattah and Jim Davis in a 

2001 House committee report: 

Insufficient disclosure is a serious problem that real reform must address. Messages are 

not identifiable for most audiences until they are sourced. As a result, viewers rarely 

interpret messages without interpreting the credibility of the source who is sponsoring the 

message. As long as pseudonymous groups are able to communicate to the electorate, the 

ability of the electorate to judge the legitimacy of the message that is being offered is 

seriously weakened. Voters cannot confidently determine how much credibility to lend a 

communication when they do not know the source of the communication. In short, 

without real disclosure of the sources of money funding sham issue ads, the ability of the 

voters to make informed decisions is severely undermined. 

 H.R. REP. NO. 107-131(I) (2001). 

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financed by corporate or union treasury funds. If the EC disclosure requirements are invalidated 

as applied to non-express-advocacy electioneering communications, the FEC’s enforcement of 

the substantive EC funding restriction will be compromised. 

Furthermore, comprehensive disclosure of electioneering communications is also crucial 

to the FEC’s ability to make determinations of political committee status. This determination 

rests on the FEC’s assessment of whether a group meets the statutory definition of “political 

committee,” see 2 U.S.C. § 431(4), and whether its “major purpose” is campaign related. See

Buckley, 424 U.S. at 79. Comprehensive disclosure aids the FEC in making these assessments. 

For instance, a group’s expenditures for even non-express-advocacy electioneering 

communications may be indicative of its major purpose. See FEC v. Massachusetts Citizens for 

Life, 479 U.S. 238, 262 (1986) (finding that a group’s major purpose can be established by the 

nature of its “independent spending”); see also FEC Explanation and Justification, Political 

Committee Status, 72 Fed. Reg. 5595, 5601 (Feb. 7, 2007) (noting that to determine major 

purpose FEC may “evaluate the organization’s spending on Federal campaign activity, as well as 

any other spending by the organization”), available at http://www.fec.gov/law/cfr/ 

ej_compilation/2007/notice_2007-3.pdf. 

Finally, in addition to the EC funding restriction and disclosure requirements, other FEC 

regulations also rely on the definition of “electioneering communications,” such as the 

coordination regulations. See, e.g., 11 C.F.R. § 109.21(c)(1). Without disclosure of the entire 

range of electioneering communications, the FEC will have a limited ability to enforce the 

longstanding requirement that money spent by outside groups in coordination with candidates be 

regulated as political contributions to those candidates. If this court were to find that nonexpress-advocacy electioneering communications were exempt from all federal regulation, as 

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 22

plaintiff urges, this would have repercussions for multiple aspects of the federal campaign 

finance law. 

CONCLUSION

For the foregoing reasons, the electioneering communications disclosure requirements,

see 2 U.S.C. §§ 434(f), 441d, as applied to plaintiff’s proposed advertisements, are consistent 

with the First Amendment. Accordingly, this Court should deny plaintiffs’ motion for summary 

judgment as to Count 1, and grant defendant’s motion for summary judgment. 

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Respectfully submitted, 

/s/ J. Gerald Hebert

J. GERALD HEBERT 

(D.C. Bar No. 447676) 

PAUL S. RYAN 

(D.C. Bar No. 502514) 

THE CAMPAIGN LEGAL CENTER 

1640 Rhode Island Ave., NW 

Suite 650 

Washington, D.C. 20036 

Tel: (202) 736-2200 

Counsel for Amicus Curiae

 Campaign Legal Center 

Donald J. Simon 

(D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY, LLP 

1425 K Street, N.W. 

Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Fred Wertheimer 

(D.C. Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W. 

Suite 500 

Washington, D.C. 20005 

(202) 429-2008 

Counsel for Amicus Curiae

 Democracy 21 

 Dated: June 6, 2008 

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