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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



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


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




QUESTIONS PRESENTED
1. Whether the three-judge district court correctly held that the disclosure requirements of federal cam paign finance law may permissibly be applied to adver tisements that are not the functional equivalent of ex press advocacy under the test set forth in FEC v. Wis consin 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.



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. 2a- 3a) is unreported. The opinion of the three-judge dis trict 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.

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 sum mary 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 neces sary 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 pro posed 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 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 fed eral office," id. at 66-67; (2) "deter[ring] actual corrup tion and avoid[ing] the appearance of corruption by ex posing large contributions and expenditures to the light of publicity," id. at 67; and (3) "gathering the data neces sary to detect violations of the contribution limitations" that were simultaneously enacted, id. at 68.

The disclosure requirements at issue in Buckley per tained to "the use of money or other objects of value 'for the purpose of . . . influencing' nominations or elec tions 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 cam paign 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 unconstitu tionally infringe on associational rights only in the lim ited 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 cam paign practices and abuses, Congress subsequently de termined, inter alia, that entities had been funding broadcast advertisements designed to influence federal elections "while concealing their identities from the pub lic," 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 nominat ing 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 elec tioneering 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 dona tion aggregating $1,000 or more to the corporation * * * for the purpose of furthering electioneering com munications." 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 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 tele vised 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 communi cation, and (2) printed "for a period of at least 4 sec onds" 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 nu merous BCRA provisions, including the reporting and disclaimer requirements that are at issue in this appeal. In McConnell, this Court rejected the plaintiffs' chal lenges to those disclosure provisions. See 540 U.S. at 194-202, 230-231.

In upholding the reporting requirements applica ble to "electioneering communications," the Court in McConnell explained that "the important state interests that prompted the Buckley Court to uphold FECA's dis closure requirements-providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data neces sary to enforce more substantive electioneering restric tions-apply in full to BCRA." 540 U.S. at 196. For that 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 re porting 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 iden tified 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 par ticular 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 "reason able probability" that such disclosure "would subject identified persons to 'threats, harassments, and repri sals.'" Id. at 198-199 (quoting Brown v. Socialist Work ers '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.

The Court in McConnell also upheld BCRA's dis claimer requirements. 540 U.S. at 230-231. Chief Jus tice 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 dis claimer] 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 commu nications. 540 U.S. at 206. The Court noted that this corporate funding restriction encompassed both cam paign 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" encom passes only communications that refer to a specific can didate shortly before an election, the fact that a commu nication 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 corpo rate and union speech, that assumption would not justify prohibiting all enforcement of the law unless its applica tion to protected speech is substantial." Ibid. (citation and internal quotation marks omitted). Thus, the Court in McConnell held that the electioneering communica tion 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 "ex press advocacy or its functional equivalent." 127 S. Ct. at 2664 (opinion of Roberts, C.J.). Under their ap proach, "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-ex empt status under 26 U.S.C. 501(c)(4). J.S. App. 5a. In early 2008, appellant released a film about Senator Hil lary Clinton, entitled Hillary: The Movie, which appel lant intended to distribute through theaters, video-on- demand broadcasts, and DVD sales while Senator Clinton was a candidate for President of the United States. See ibid. The video-on-demand broadcast was 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 dis trict court, challenging BCRA's application to both the film and the proposed advertisements. See J.S. App. 9a- 10a. 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 con ceded 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 ques tion whether BCRA's reporting and disclaimer provi sions were constitutional as applied to the advertise ments. 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 jurisdic tion. 128 S. Ct. 1732 (2008) (No. 07-953). The district court then granted summary judgment to the Commis sion "[b]ased on the reasoning of [the court's] prior opin ion" denying preliminary injunctive relief. J.S. App. 2a- 3a.

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 suscep tible of no other interpretation than to inform the elec 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 conten tion 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 provi sions "for the 'entire range of electioneering communi cations' set forth in the statute." Id. at 17a (quoting McConnell, 540 U.S. at 196). The court rejected appel lant'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 con texts, 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 unconstitu tional as-applied-if disclosure would lead to reprisals and thus 'impose an unconstitutional burden on the free dom 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 "memo randum in support of its motion [for a preliminary in junction] states that there may be reprisals," appellant had "presented no evidence to back up this bald asser tion." 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 Commis sion'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

1. In McConnell, eight Members of this Court-in cluding 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 sup ports 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 dis claimer 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 appli cations of that requirement." 540 U.S. at 199. The Court further explained that, to succeed in such an as- applied challenge, a plaintiff must demonstrate a "rea sonable 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 were actually likely to occur. Id. at 199.2 The Court's statement in McConnell that BCRA's reporting require ments 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 as- applied 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 chal lenges to BCRA's reporting and disclaimer require ments. To the contrary, the district court specifically noted that "[t]he McConnell Court did suggest one cir cumstance 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 pre vail in such an as-applied challenge because appellant (like the plaintiffs in McConnell) had raised the possibil ity of reprisals but had offered no evidence to support that concern. Ibid.3 In this Court, appellant does not 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 burden some as to trigger strict scrutiny and that they cannot survive that exacting analysis when applied to communi cations that (like the advertisements promoting appel lant's movie) are not the functional equivalent of express advocacy. Appellant's argument lacks merit.

It is well established that First Amendment chal lenges 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" gov ernment interest. Buckley, 424 U.S. at 64, 66, 75 (cita tion omitted); accord Davis v. FEC, 128 S. Ct. 2759, 2775 (2008) (reiterating that "there must be 'a "relevant cor relation" or "substantial relation" between the govern mental interest and the information required to be dis closed,' 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 disclo sure requirements, is more permissive than the "strict 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 "suf ficiently important" interest. That standard corre sponds 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 Buck ley explicitly distinguished the scrutiny applicable to such "limitations on core First Amendment rights of po litical expression," ibid., from that applicable to en croachments on the "privacy of association" by disclo sure 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 con tention 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 prohi bition on corporate campaign expenditures, "a prohibi tion * * * 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 anony mous handbills addressing a variety of political issues, see 514 U.S. at 338 n.3, from the disclosure require ments contained in federal campaign-finance laws, see id. at 355. And because BCRA's definition of "election eering communication" is limited to specified categories of "broadcast, cable, or satellite communication[s]," 2 U.S.C. 434(f)(3)(A)(i), the materials subject to the chal lenged disclosure requirements are far removed from the "personally crafted statement of a political view point" 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 inter ests" 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 in fringe 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 bur den were supported by evidence showing a "reasonable probability that the compelled disclosure * * * will subject [the plaintiffs] to threats, harassment, or re prisals." See Buckley, 424 U.S. at 74. Finding the evi dence 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 is sue 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 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 gov ernment'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 cor porate-financing restriction to appellant's advertise ments promoting its movie, application of BCRA's re porting 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 re peatedly 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 ad vocacy in federal campaigns, notwithstanding the ban imposed by 2 U.S.C. 441b(a) on use of corporate trea sury funds for that purpose. 479 U.S. at 263-264. The Court explained that, given the particular characteris tics of the corporation involved, the corporation's cam paign-related spending would not pose the danger at which Section 441b was directed. See ibid. The Court made clear, however, that the corporation remained sub ject 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 spend ing 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 expen ditures").

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 prohib ited banks and business corporations from making cer tain expenditures for the purpose of influencing the out come 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 elec tion to public office." Id. at 788 n.26. The Court ob served, however, that even in the context of ballot initia tives, "[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 subse quent 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 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 at tempt to influence legislation" may be required to dis close the sources and amounts of the funds they receive to undertake lobbying activities. United States v. Har riss, 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 pro ponents of the public weal." Id. at 625. In Bellotti, this Court noted its prior First Amendment holdings "pro tect[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 proposi tion that compelled disclosure of financing information is permissible, id. at 792 n.32. The Court has thus rec ognized that legislatures may require the disclosure of information concerning the source of funds used to influ ence public policy, even when that influence occurs out side the election context.

Many of these cases postdate Buckley, on which ap pellant principally relies. Appellant repeatedly invokes the Court's determination in Buckley that a prior FECA disclosure provision was limited to spending that is "un ambiguously related to the campaign of a particular fed eral 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 "unambigu ously campaign related" spending, 424 U.S. at 81, was shorthand) as a construction of the statutory phrase "for the purpose of * * * influencing [federal elec tions]." Id. at 78-81; see p. 3, supra. This Court has since recognized that Buckley's "express advocacy limi tation, in both the expenditure and the disclosure con texts, 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 deci sions discussed above make clear that compelled disclo sure 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 "electioneer ing communication" can reasonably be viewed as "some thing 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 ment. WRTL, 127 S. Ct. at 2670, 2673 (opinion of Rob erts, 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-re lated-i.e., the fact that they may reasonably be con strued 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 distinc tion 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 "suppres sion" of speech, however, and nothing in WRTL suggests that these lesser burdens render disclosure require ments invalid as applied to issue advocacy. As this Court has long recognized, disclosure regulations in crease the range of information available to citizens and thereby further First Amendment values. See McCon nell, 540 U.S. at 197 (explaining that "[p]laintiffs' argu ment for striking down BCRA's disclosure provisions * * * ignores the competing First Amendment inter ests of individual citizens seeking to make informed choices in the political marketplace") (quoting McCon nell, 251 F. Supp. 2d at 237); Buckley, 424 U.S. at 82 (characterizing FECA disclosure requirements as "a reasonable and minimally restrictive method of further ing First Amendment values by opening the basic pro cesses of our federal election system to public view"). The corporate-financing prohibition that this Court in validated in WRTL had no such similar potential to in crease the range of information available to the public, and WRTL therefore does not cast doubt on this Court's prior decisions upholding the application of disclosure requirements to various forms of political advocacy.

4. Appellant next contends (J.S. 24-26) that the dis trict 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 war ranted.

a. The lead opinion in WRTL held that BCRA's re striction on corporate funding for electioneering commu nications 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 ex press advocacy" as speech that is "susceptible of no rea sonable 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 ad vertisements 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 is sue 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 offi cials with respect to the matter. Second, their con tent lacks indicia of express advocacy: The ads do not mention an election, candidacy, political party, or challenger; and they do not take a position on a candi date's character, qualifications, or fitness for office.

Ibid. The FEC included these criteria, effectively ver batim, 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 repeat edly adverts to Senator Clinton's candidacy and her fit ness 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 con cludes that Senator Clinton poses a "fundamental dan ger * * * 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 for office and her actions in relation to certain contro versies 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 genu ine issue advocacy. See id. at 2667 n.6 (contrasting issue advertisements in that case with hypothetical advertise ment described in McConnell that "condemned [the can didate]'s record on a particular issue"). And the over whelming 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 constitu tionally exempt from the corporate funding restriction because the film purportedly contains no "actual words * * * that constitute 'an appeal to vote'" against Sen ator 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 con stituting an appeal to vote, but instead whether the com munication "is susceptible of no reasonable interpreta tion other than as an appeal to vote." WRTL, 127 S. Ct. at 2667 (emphasis added). As discussed above, the appli cation 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 constitu tional test, the interpretation requiring express advo cacy that the Court adopted in Buckley to narrow an ambiguous term in FECA). Indeed, as the lead opinion in WRTL recognized throughout, Congress could per missibly regulate the "functional equivalent of express advocacy." Id. at 2664, 2665, 2667, 2668, 2669, 2670 (em phasis added). Appellant's reading, under which Con gress 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-commu nication 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 uncon stitutional as applied to a "full-length documentary film[]." J.S. 27. This assertion (which the district court did not separately address) is without merit. The McConnell record included evidence of broadcast ad vocacy 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 Hender son, 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 advo cacy," 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 differ ently 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 substan tial federal question. In the alternative, the judgment of the district court should be affirmed.

Respectfully submitted.

 

GREGORY G. GARRE
Solicitor General
MALCOLM L. STEWART
Deputy Solicitor General
WILLIAM M. JAY
Assistant to the Solicitor
General
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
MALCOLM L. STEWART
Deputy Solicitor General
WILLIAM M. JAY
Assistant to the Solicitor
General
Department of Justice

 

OCTOBER 2008

1 Although at the present time Hillary: The Movie is no longer sub ject 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 per mit full litigation of as-applied challenges in advance, and that WRTL had sufficiently established that the issue was likely to recur by "cred ibly 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 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."

2 Appellant notes (J.S. 20 n.9) that certain plaintiffs in McConnell did attempt to make such a factual showing regarding disclosure- related 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 (dis cussing evidentiary submissions of NRA, ACLU, and three trade asso ciations).

3 Appellant has maintained a separate segregated fund (common ly 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 C00295527 (visited Oct. 16, 2008) <http://query.nictusa.com/cgi-bin/ fecimg/?C00295527>. During that time, appellant has disclosed ap proximately 1000 contributions from individuals in amounts of $200 or more, including address and employer information for most of the indi viduals. 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 pro duce any evidence of actual reprisals is particularly striking in light of the large volume of donor information that it has previously released.

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 func tional equivalent, id. at 282-283, the Fourth Circuit was referring to regulation of expenditures, and did not consider reporting require ments standing alone. See id. at 280.

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: "Be cause WRTL does not challenge the disclaimer and disclosure require ments, 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 trans parent. With all this information, it will then be up to the people to de cide 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).

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 dis trict 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").