Citizens United v. FEC - Brief (Merits)

Docket number: 
No. 08-205
Supreme Court Term: 
2008 Term
Court Level: 
Supreme Court

No. 08-205

In the Supreme Court of the United States






Acting Solicitor General
Counsel of Record
Deputy Solicitor General
Assistant to the Solicitor
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

General Counsel
Associate General Counsel
Assistant General Counsel
Federal Election Commission
Washington, D.C. 20463


1. Whether the three-judge district court correctly concluded that appellant's film about then-Senator Hil lary Clinton is the functional equivalent of express advo cacy under the test set forth in FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007).

2. Whether the three-judge district court correctly held that the reporting and disclaimer requirements of federal campaign finance law may permissibly be ap plied to advertisements that are not the functional equi valent of express advocacy.

In the Supreme Court of the United States

No. 08-205








The opinion of the three-judge district court granting appellee's motion for summary judgment (J.A. 261a- 262a) is unreported. The opinion of the three-judge dis trict court denying appellant's motions for preliminary injunctions (J.A. 195a-211a) is reported at 530 F. Supp. 2d 274.


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). The jurisdictional statement was filed on August 14, 2008. This Court noted probable jurisdiction on November 14, 2008. The jurisdiction of this Court rests on Section 403(a)(3) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 113.


Appellant is a nonprofit corporation that produced a movie critical of then-Senator Hillary Clinton, who was at that time a candidate for the Democratic presidential nomination. Appellant wished to use its treasury funds to pay cable companies to broadcast the film before and during the 2008 presidential primary elections, contrary to a federal prohibition on the use of corporate treasury funds to finance "electioneering communications" as defined by federal law. Appellant also sought to run advertisements promoting the film without complying with federal reporting and disclaimer requirements. Appellant filed suit against the Federal Election Com mission (Commission or FEC), alleging that those fed eral financing restrictions and disclosure requirements were unconstitutional as applied. A three-judge district court granted summary judgment for the Commission.

1. a. Since 1907, federal law has restricted corpora tions from using their general treasury funds to influ ence federal elections. The Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. 431 et seq., makes it "un lawful * * * for any corporation whatever * * * to make a contribution or expenditure in connection with any election" for federal office. 2 U.S.C. 441b(a). The restriction on a corporation's independent "expendi ture[s]" has been construed to encompass "express advo cacy," i.e., the financing of communications that express ly advocate the election or defeat of a clearly identified candidate. FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 248-249 (1986) (MCFL).

The general prohibition on express advocacy by cor porations in federal elections has two principal excep tions. First, a corporation may establish a "separate segregated fund," commonly called a political action committee (PAC), to finance those disbursements. 2 U.S.C. 441b(b)(2)(C). The money in a corporation's PAC, which is raised from individuals associated with the corporation, can be contributed directly to candi dates for federal office, and it may be used without limi tation to pay for independent expenditures to communi cate to the general public the corporation's views on such candidates.

Second, this Court has held that certain small, ideo logically-oriented corporations may use their treasury funds for express advocacy notwithstanding the general financing restriction. That exception applies to corpora tions that (1) were "formed for the express purpose of promoting political ideas, and cannot engage in business activities"; (2) had "no shareholders or other persons af filiated so as to have a claim on its assets or earnings"; and (3) were "not established by a business corporation or a labor union, and [had a] policy not to accept contri butions from such entities." MCFL, 479 U.S. at 264; see McConnell v. FEC, 540 U.S. 93, 210-211 (2003); 11 C.F.R. 114.10 (implementing MCFL exception). Cor porations possessing these characteristics are commonly referred to as "MCFL organizations." E.g., McConnell, 540 U.S. at 210.

b. Section 203 of BCRA extended the longstanding ban on corporate express electoral advocacy to an addi tional category of political spending. 116 Stat. 91. After this Court's decision in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), corporations and labor unions crafted political communications that avoided the so- called magic words of express electoral advocacy. They financed those communications with "hundreds of mil lions of dollars" from their general treasuries "'while concealing their identities from the public,'" including by "'hiding behind dubious and misleading names.'" McConnell, 540 U.S. at 127, 196-197 (quoting McConnell v. FEC, 251 F. Supp. 2d 176, 237 (D.D.C. 2003) (three- judge court)). "Congress enacted BCRA to correct the flaws it found in the existing system." Id. at 194.

Accordingly, Congress required any corporation or labor union that sponsors an "electioneering communica tion" to pay for it with PAC rather than general trea sury funds. See 2 U.S.C. 441b(a) and (b)(2).1 The term "electioneering communication" is defined, in the con text 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, within 30 days before a presidential nominating convention, or within 30 days before a presidential primary election in the state holding that primary. 2 U.S.C. 434(f)(3)(A)(i); 11 C.F.R. 100.29(a)(2) and (b)(3)(ii). The definition gener ally excludes any broadcast "communication appearing in a news story, commentary, or editorial." 2 U.S.C. 434(f)(3)(B)(i).

2. a. Federal law has also long required disclosure of the dollar amounts expended on campaign activity. FECA required donors to disclose not only contributions to political candidates, but also "the use of money or other valuable assets 'for the purpose of . . . influenc ing' the nomination or election of candidates for federal office." Buckley, 424 U.S. at 77 (quoting 2 U.S.C. 431(f)(1) (Supp. IV 1974)). The Court in Buckley upheld that requirement after construing it to avoid vagueness concerns. Id. at 76-84.

b. BCRA Section 201 added a requirement that any person who spends more than $10,000 to broadcast an electioneering communication must promptly file a com parable disclosure statement with the Commission. 2 U.S.C. 434(f)(1). The statement must identify the per son making the disbursement; the amount and date of the disbursement; and, in the case of an electioneering communication made by a corporation, all those who contributed "$1,000 or more to the corporation * * * for the purpose of furthering electioneering communica tions." 11 C.F.R. 104.20(c). If the disbursement is made out of a "segregated bank account" established for elec tioneering communications, the report need only iden tify those who contributed $1000 or more to that segre gated account. 2 U.S.C. 434(f)(2)(E); 11 C.F.R. 104.20(c)(7).

c. BCRA Section 311 added a separate requirement that a televised electioneering communication must in clude both written and oral disclaimers. The screen must display (1) "the name and permanent street ad dress, 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 both (1) made orally by a representative of the entity making the com munication and (2) printed "for a period of at least 4 sec onds" in text meeting specified size and contrast re quirements. 2 U.S.C. 441d(d)(2); 11 C.F.R. 110.11(c)(4).

3. 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. See Br. for Appellants Congressman Ron Paul, et al., at iii, McConnell, supra (No. 02-1747). This Court rejected the plaintiffs' facial challenges to the corporate-funding restrictions, reporting obligations, and disclaimer re quirements applicable to electioneering communications.

The Court in McConnell discussed its prior decisions upholding state and federal restrictions on corporate electoral advocacy. 540 U.S. at 204-205. The Court ex plained that, "[i]n light of [those] precedents, plaintiffs d[id] not contest that the Government has a compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal office." Id. at 205. The Court further explained that, "to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and gen eral elections are the functional equivalent of express advocacy," the same governmental interests apply equally to corporate financing of electioneering commu nications. Id. at 206. Based on a voluminous record ex amining the use of corporate-funded ads that influenced elections without using express advocacy, the Court con cluded that BCRA's restrictions on the financing of elec tioneering communications are facially valid. Id. at 207.

The Court also upheld BCRA's reporting require ments. The Court explained that those requirements serve three valid purposes: "providing the electorate with information, deterring actual corruption and avoid ing any appearance thereof, and gathering the data nec essary to enforce more substantive electioneering re strictions." 540 U.S. at 196. Although the Court noted the possibility of future as-applied challenges by plain tiffs for whom disclosure represented an unusually se vere burden, it concluded that none of the plaintiffs be fore it had shown such a burden. Id. at 198-199. Three other Justices, while rejecting much of the Court's rea soning, agreed that BCRA's reporting requirements (with one exception not relevant here) are constitutional because they "substantially relate" to the informational interest identified in the Court's opinion. Id. at 321 (Kennedy, J., concurring in the judgment in part and dissenting in part).

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, explained that BCRA's "inclusion of electioneering com munications in the [pre-existing disclaimer] regime bears a sufficient relationship to the important govern mental interest of 'shed[ding] the light of publicity' on campaign financing." Id. at 231 (quoting Buckley, 424 U.S. at 81).

4. Four years later, in FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (WRTL), this Court sustained an as-applied challenge to Section 203. The Chief Justice's controlling opinion,2 joined by Justice Alito, acknowledged McConnell's holding that Congress may regulate corporate financing of communications that constitute the functional equivalent of express advo cacy. The opinion then held that "an ad is the functional equivalent of express advocacy only if the ad is suscepti ble of no reasonable interpretation other than as an ap peal to vote for or against a specific candidate." Id. at 2667. Three other Justices concluded that BCRA Sec tion 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 con curring in the judgment).

5. Shortly before the 2008 presidential primaries began, appellant was preparing to release a film about then-Senator Hillary Clinton, entitled Hillary: The Movie. Appellant intended to distribute the film through theaters, DVD sales, video-on-demand broad casts, and other broadcast means while Senator Clinton was a candidate for President. J.A. 19a, 196a. The video-on-demand broadcast apparently would have in volved paying approximately $1.2 million to a consor tium of cable companies, which in return would make the movie available to the companies' subscribers. J.A. 19a, 256a. Appellant also produced three television adver tisements for the movie. J.A. 196a-197a & nn.2-4. Those advertisements mentioned Senator Clinton by name and therefore would have fallen within BCRA's definition of "electioneering communication" if they had been broad cast during the 30-day period before a primary election in which Senator Clinton was a candidate. See J.A. 198a-199a.

In December 2007, appellant filed suit in federal dis trict court. The complaint alleged that BCRA Section 203 and the reporting and disclaimer requirements were unconstitutional as applied to both the film and the pro posed advertisements, and that Section 203 was facially unconstitutional. See J.A. 200a-201a. The FEC con ceded that Section 203 could not be applied to the adver tisements because those advertisements were not the functional equivalent of express advocacy as the lead opinion in WRTL used that term.

The three-judge district court denied preliminary injunctive relief on each of appellant's claims. J.A. 195a- 211a. Appellant filed an interlocutory appeal in 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.A. 261a- 262a.

a. The district court held that BCRA's ban on the use of corporate treasury funds to finance electioneering communications is constitutional as applied to Hillary because the film is the functional equivalent of express advocacy. J.A. 203a-206a. The court found that the film "is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her." J.A. 204a.

b. The district court also rejected appellant's con tention that BCRA's reporting and disclaimer provisions are unconstitutional as applied to appellant's proposed advertisements. J.A. 206a-209a. The court explained that this Court in McConnell had upheld those provi sions on their face, and that appellant had offered no specific evidence of reprisals or other unconstitutional burdens that could distinguish its challenge from the one rejected in McConnell. Ibid. The district court also observed that, in various contexts, this Court "has writ ten approvingly of disclosure provisions triggered by political speech even though the speech itself was consti tutionally protected under the First Amendment." J.A. 208a.

c. The district court noted at the preliminary-in junction stage that appellant could not prevail on its facial challenge unless McConnell were overruled. J.A. 202a. In its subsequent motion for summary judgment, appellant stated that it no longer intended to pursue its facial challenge. 07-CV-2240 Docket entry No. 52, at 1-2 (May 16, 2008) ("[Appellant] hereby advises the Court of its intent to abandon the count and asks the Court to consider the count moot and not rule on it."). The par ties subsequently stipulated to the dismissal of the facial challenge. See id. Nos. 53 (May 22, 2008), 54 (May 23, 2008).


I. This Court has repeatedly sustained federal stat utes implementing Congress's compelling interest in ensuring the integrity of federal elections. In McCon nell, the decision controlling here, the Court held that Congress may validly prohibit corporations and labor unions from using the wealth amassed in their treasuries to finance either express electoral advocacy or election eering communications that are the functional equiva lent of express advocacy. The Court therefore sustained BCRA Section 203 against a facial challenge. Subse quently, in WRTL, the lead opinion declined to recon sider McConnell's holding on that issue because it con cluded that the advertisements at issue were not the functional equivalent of express advocacy.

McConnell forecloses appellant's claim of entitle ment to fund Hillary with corporate dollars, because Hillary is unmistakably an appeal to viewers to vote against Senator Clinton for President. Every element of the film, including the narration, the visual images and audio track, and the selection of clips, advances the clear message that Senator Clinton lacked both the in tegrity and the qualifications to be President of the United States. The film focused not on legislative issues but on Senator Clinton's character, and it tied that mes sage directly to her candidacy for President. Because Hillary cannot "reasonably be interpreted as something other than an appeal to vote * * * against" Senator Clinton, it is the "functional equivalent of express advo cacy," and Section 203 validly regulates the use of corpo rate money to put it on the air. WRTL, 127 S. Ct. at 2670 (opinion of Roberts, C.J.).

Appellant's attempts to distinguish McConnell are unavailing. Appellant sought to have Hillary broadcast by purchasing time through a video-on-demand consor tium, but that method of paid distribution is no different from buying an "infomercial" on a broadcast network, as political candidates have done for many years. Like any other television advertisement, Hillary uses the power of the visual medium to promote a message; broadcast ing that message on the "Elections '08" video-on-de mand channel rather than on Nickelodeon simply would increase the likelihood that the audience would be inter ested in the subject matter. Nor does Hillary's 90-min ute length have any constitutional significance once the film is found to be the functional equivalent of express advocacy. McConnell's holding is not limited to 30-sec ond advertisements.

Appellant also contends, without adequate record support, that it would have used many more individual donations than corporate donations to finance Hillary. But any use of corporate monies in this context would permit appellant to be used as a conduit to circumvent the valid restrictions on corporate spending. Congress's bright-line rule against the use of corporate treasury funds is valid in this context.

Because McConnell is controlling, appellant asks this Court to take the avulsive step of overruling its previous holdings and ending all federal regulation of corporate- financed electioneering, including express advocacy. That contention is not properly presented and, in any event, provides no new basis for overturning holdings that this Court has repeatedly reaffirmed.

II. BCRA's reporting and disclaimer requirements may validly be applied to appellant's three advertise ments. Appellant was permitted to use corporate funds to air the advertisements themselves, under the reason ing of the lead opinion in WRTL, because they are not the functional equivalent of express advocacy. Contrary to appellant's contention, however, the fact that appel lant's advertisements are not unambiguously election- related does not mean that they are constitutionally ex empt from all statutory provisions pertaining to the electoral process. The federal requirements that elec tioneering communications be reported to the Commis sion, and that they identify their sponsors to their view ers, are based on interests distinct from BCRA Section 203 and not considered in WRTL: the public interest in full information about participants in the electoral pro cess, and the government's interest in enforcing other, independent provisions of the campaign finance laws. Those interests are directly implicated by broadcast communications that can reasonably be construed as either electoral or non-electoral advocacy. Under the standard that this Court has consistently applied to in formational provisions of this sort-a standard more permissive than strict scrutiny-these interests are fully sufficient to sustain Congress's chosen methods here.

Appellant identifies no burden that can outweigh these valid interests. As-applied challenges to disclo sure requirements have been recognized for decades, based on genuine threats of harassment or reprisals, but appellant makes no effort to meet that standard. In stead, appellant contends (along with several amici) that disclosure always poses such a burden, or that disclo sure always creates an unconstitutional chill on pro tected speech. This Court has repeatedly rejected such facial attacks on disclosure requirements, recognizing that disclosures of the sort at issue here serve rather than undermine First Amendment interests by increas ing the amount of information available to the public.

Finally, appellant's challenge to the application of the disclaimer requirement is without merit. Appellant suffers no significant burden from identifying itself as the sponsor of Hillary; the film itself and the website promoting it make appellant's role clear. Appellant has offered no evidence to support the notion that the dis claimer will confuse viewers. And appellant does not have any constitutional entitlement to save money by not buying the four additional seconds of airtime neces sary to air the disclaimer.



The district court correctly concluded that Hillary, taken as a whole, is the functional equivalent of express advocacy. Appellant therefore had no constitutional right to use its treasury funds, or treasury funds con tributed by other corporations, to broadcast Hillary during the 30-day period before a primary election in which Senator Clinton was a candidate.3

A. This Court Has Upheld Congress's Power To Restrict Corporations From Using Their Treasury Funds To Fi nance Express Advocacy Or Its Functional Equivalent

Corporations and labor unions have long been re quired to finance express electoral advocacy through a separate segregated fund rather than with general trea sury monies. The constitutionality of that requirement has been "firmly embedded in our law" since this Court upheld FECA in Buckley, and it was common ground in the McConnell litigation. McConnell v. FEC, 540 U.S. 93, 203 (2003); see id. at 205. Section 203 of BCRA ex tended that requirement to a defined set of "election eering communication[s]," and the Court in McConnell upheld Section 203 to the extent that the advertisements it regulates are express advocacy or its "functional equivalent." 540 U.S. at 206. Appellant therefore has no constitutional right to use corporate treasury dollars to purchase airtime for a communication that unmistakably advocates a particular vote.

1. Congress has a compelling interest in protecting the electoral process from both actual corruption and the appearance of corruption. This Court has repeat edly recognized both the validity and the importance of that interest, see, e.g., WRTL, 127 S. Ct. at 2672 (opinion of Roberts, C.J.); Buckley v. Valeo, 424 U.S. 1, 45 (1976) (per curiam), and it has further recognized that the cor ruptive potential of campaign-related largesse is great est in the context of candidate elections, see First Nat'l Bank v. Bellotti, 435 U.S. 765, 788 n.26 (1978).

Congress has historically imposed particularly strin gent limits on the electoral advocacy of corporations and labor unions. Those restrictions reflect a "'legislative judgment that the special characteristics of the corpo rate structure require particularly careful regulation,'" and this Court has consistently "respect[ed]" that judg ment. FEC v. Beaumont, 539 U.S. 146, 155 (2003) (quot ing FEC v. National Right to Work Comm., 459 U.S. 197, 209-210 (1982)). In particular, because of the nu merous advantages that the corporate form confers, a corporation's ability to pay for electoral advocacy has "little or no correlation to the public's support for the corporation's political ideas." McConnell, 540 U.S. at 205 (quoting Austin v. Michigan State Chamber of Com merce, 494 U.S. 652, 660 (1990)).

2. The Court held in McConnell that those "unusu ally important interests" justify regulating corporations' use of treasury funds to influence elections directly, through either express advocacy or electioneering com munications that are the functional equivalent of express advocacy. 540 U.S. at 206 n.88; see id. at 205-207. The constitutionally valid justification for requiring corpora tions to fund express advocacy through PACs "appl[ies] equally" to corporate funding of "ads [that] are intended to influence the voters' decisions and have that effect," even if their electioneering message is less explicit than express advocacy. Id. at 206. In WRTL, the lead opin ion recognized that the Court in McConnell had "al ready ruled that BCRA survives strict scrutiny to the extent it regulates express advocacy or its functional equivalent." 127 S. Ct. at 2664; see ibid. (explaining that, if the broadcast is "express advocacy or its func tional equivalent," then "the FEC's burden is not oner ous; all it need do is point to McConnell and explain why it applies here").

B. Hillary Is The Functional Equivalent Of Express Advo cacy Because It Focuses On Senator Clinton's Candi dacy And Character

As the term itself makes clear, a communication may be the "functional equivalent" of express advocacy even if it does not explicitly urge a vote for or against a candi date. See McConnell, 540 U.S. at 193 (noting the Court's "longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad"). Rather, as the lead opinion in WRTL explained, a broadcast should be treated as electioneering if the only "reasonable in terpretation" of its content is "as an appeal to vote for or against a specific candidate." 127 S. Ct. at 2667. Apply ing that standard, the three-judge district court cor rectly concluded that Hillary "is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office * * * and that viewers should vote against her." J.A. 204a.

The lead opinion in WRTL identified three reasons for its conclusion that the advertisements at issue there did not constitute the functional equivalent of express advocacy. First, the advertisements "focus[ed] on a leg islative issue" and advocated specific congressional ac tion; they did not simply "condemn[] [the target's] re cord on a particular issue." 127 S. Ct. at 2667 & n.6 (ci tation omitted). Second, they "d[id] not mention an elec tion [or a] candidacy." Id. at 2667. Third, the advertise ments "d[id] not take a position on a candidate's charac ter, qualifications, or fitness for office." Ibid. The Com mission has codified those criteria in implementing regu lations, 11 C.F.R. 114.15. Under that analysis, Hillary is the functional equivalent of express advocacy.

1. Senator Clinton's candidacy for President is the central and unmistakable focus of the film. The narra tor's first voiceover begins, "Hillary Rodham Clinton. Could she become the first female President in the his tory of the United States?" J.A. 35a. The final voice over cautions that "before America decides on our next President, voters should need no reminders of * * * what's at stake-the well being and prosperity of our nation." J.A. 144a-145a. And throughout the film, Sena tor Clinton's candidacy is repeatedly brought up both by the narrator, see J.A. 35a, 37a-38a, 38a-39a, 39a-40a, 88a-89a, 94a-95a, 104a-105a, 112a, 115a, 125a, 142a, 143a-144a, and by a succession of featured commenta tors, all critical of Senator Clinton, see J.A. 30a-31a, 42a, 63a, 64a, 89a-90a, 100a, 146a, 147a, 148a-149a. The mes sage is forthrightly stated in a clip from Tony Blankley: Hillary is intended to cover "things in the Clinton[s'] political history worth recalling before you go in to po tentially vote for a Clinton, in this case a Hillary Clin ton." J.A. 42a (emphasis added).

The images and audio chosen by the film's editors evince a similar focus from beginning to end. As the film's title appears onscreen, the audio track plays Sena tor Clinton's message about starting her presidential campaign. J.A. 32a. And just before the film ends, the audio track plays Senator Clinton saying that "on Janu ary 20, 2009 . . . some one will stand on the steps of the [C]apitol . . . and raise his or her hand to take the oath of office as the 44th [P]resident." J.A. 149a.

2. Hillary's unmistakable message is that Senator Clinton's character, beliefs, qualifications, and personal history make her unsuited to the office of President of the United States. That message is conveyed through the film's narration; through its choice of commentators and its selection of extracts from their interviews; and through its use of visual imagery. "And although the resulting [production] do[es] not urge the viewer to vote for or against a candidate in so many words, [it is] no less clearly intended to influence" voters' views of candi date Clinton. McConnell, 540 U.S. at 193.

Rather than examining issues that might be the sub ject of legislative votes or Executive Branch action, Hil lary focuses on Senator Clinton's "character, qualifica tions, [and] fitness for office." WRTL, 127 S. Ct. at 2667 (opinion of Roberts, C.J.). The film repeatedly impugns Senator Clinton's honesty and character. See J.A. 39a ("She's deceitful. She'll make up any story; lie about anything."), 40a (narrator asking, "[I]s she ruthless, cunning, dishonest-willing to do anything for power?"), 41a ("the Clintons * * * speak dishonestly"), 64a (nar rator's reference to Senator Clinton's "Machiavellian behavior" and "tendency to manipulate, deceive and de stroy for personal gain"), 68a (narrator's reference to her "hypocrisy and startling recklessness"), 86a ("con genital liar"), 111a ("[S]he's not flipping and flopping. [S]he's lying."), 112a (narrator stating, "The war on ter ror isn't the only issue where Hillary is trying to have it both ways."), 130a (narrator stating, "Character is de fined as what we do when we think no one is looking. By that standard many critics say the Clintons are sorely lacking."). Those allegations are expressly tied to her fitness for elective office, and specifically for the office of President. E.g., J.A. 62a ("I don't understand how any woman in this country * * * could vote for a wom an who does that to other people."), 149a ("[T]he Hillary Clinton that I know is not equipped, not qualified to be our commander in chief.").

The images that appear onscreen reinforce the at tack on Senator Clinton's character. For example, 37 seconds into the movie, after a montage of headlines containing the phrase "Mrs. Clinton," the visual zooms in and lingers on the word "perjury" (omitting the re mainder of the headline). Four seconds later, after a montage of headlines referring to the "First Lady," the visual zooms in and lingers on the word "lies" (again omitting the remainder of the headline). Am. Compl. Exh. 2 (DVD version).

Appellant describes those manifestations of Hillary's critical message as merely the opinion of "various com mentators," offered only at the end of the movie. Br. 40; see Br. 37. That characterization is demonstrably inac curate. As explained above, criticism of Senator Clin ton's character and candidacy pervades the movie, be ginning in the visual montages and statements in the first minute of the film and continuing throughout. That criticism comes in the filmmakers' own voice (and voice over) and cannot be dismissed as the opinions of the in terviewees (who are in any event uniformly critical of Senator Clinton). And any potential ambiguity regard ing the "focus" of the film as a whole, WRTL, 127 S. Ct. at 2667 (opinion of Roberts, C.J.), is removed by the con cluding section, which marshals all of the preceding evi dence as support for the ultimate conclusion that Sena tor Clinton should not be elected president.4

3. Unlike a genuine issue advertisement, Hillary does not "focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, [or] urge the public to contact public officials with respect to the matter." WRTL, 127 S. Ct. at 2667 (opinion of Rob erts, C.J.). In the few short portions of the film that touch on legislative issues, the film consistently and ex plicitly ties those issues to further critiques of Senator Clinton's character and fitness for the presidency. See, e.g., J.A. 105a-108a (discussing Senator Clinton's posi tions on driver's licenses for illegal immigrants and con cluding that her performance failed to show "presiden tial stature or character"); J.A. 108a-112a (discussing Senator Clinton's positions on the war in Iraq and con cluding that Senator Clinton was "not flipping and flop ping. [S]he's lying."). The film does not express dis agreement with any of Senator Clinton's stands on the relevant issues but rather urges that her handling of those issues shows that she lacks both the forthright ness and the experience to be President. See J.A. 105a- 112a.

Even if one or more snippets of Hillary might in iso lation be seen as issue advocacy, they are part of a larger work that, as a whole, unambiguously argues that Senator Clinton is unfit for the office for which she was a candidate.5 Appellant cannot immunize such a commu nication from regulation simply by inserting some addi tional issue discussion. Indeed, much express advocacy contains issue discussion.6 In MCFL, for instance, the Court held that a newsletter that contained issue advo cacy nevertheless was "squarely" regulated by FECA because it also went "beyond issue discussion to express electoral advocacy." 479 U.S. at 249-250.

4. Appellant observes (Br. 36-37) that Hillary does not urge viewers to undertake "the specific act of voting against Senator Clinton in a Democratic presidential primary." Appellant argues (Br. 37) that, "[i]n the ab sence of such an unambiguous call to action, it is difficult to envision any language or images, or mix of the two," that would satisfy the constitutional standard set forth in the lead opinion in WRTL. That contention is in sub stance an appeal for reinstatement of the "magic words" requirement that the Court in McConnell held was not constitutionally required. See 540 U.S. at 190-192. Ac ceptance of that argument would mean that BCRA Sec tion 203 is unconstitutional in virtually all its applica tions, see id. at 127 & n.18, 193 & n.77 (explaining that modern campaign advertising, including advertisements run by candidates, rarely uses "magic words"), in con travention of McConnell's holding that Section 203 is not facially overbroad because most of its applications are constitutional, see id. at 207; accord WRTL, 127 S. Ct. at 2683 (Scalia, J., concurring in part and concurring in the judgment).

C. There Is No Other Constitutional Basis For Exempting Appellant's Film From The Corporate Financing Re striction

In addition to arguing that Hillary is not the func tional equivalent of express advocacy under the lead opinion in WRTL, appellant advances a variety of other arguments for finding BCRA's corporate financing re striction unconstitutional as applied to the film. Those arguments lack merit.

1. Video-on-demand has no special constitutional status

Appellant apparently wished to pay a consortium of cable television providers to show Hillary through the consortium's video-on-demand service. See J.A. 253a- 260a. Appellant argues (Br. 24-29) that even if Hillary can be regulated as the functional equivalent of express advocacy when it is broadcast on television (including cable television), the film is constitutionally exempt from such regulation when it is distributed as a cable video- on-demand transmission. That newly raised contention lacks merit.

a. Appellant's argument was neither presented to nor ruled on by the court below.7 Nor did appellant sug- gest in its jurisdictional statement that video-on-demand distribution might have constitutional significance. This Court generally "do[es] not decide in the first instance issues not decided below," NCAA v. Smith, 525 U.S. 459, 470 (1999), and no exception should be made here. In particular, in opposing the Commission's summary-judg ment motion, appellant never submitted any facts or argument to support its current contentions about the nature of video-on-demand.

b. In any event, appellant identifies no sound consti tutional basis for exempting video-on-demand broad casts from BCRA's restrictions on corporate financing of electioneering communications. As with a 30-second commercial or a 30-minute infomercial, the producer of a video-on-demand film pays the broadcaster to air the film without modification. See, e.g., J.A. 253a (touting the "advanced advertising opportunities" of video-on- demand, which allows candidates and others to "craft[] and control[] [their] own long-form campaign message [and] reach voters with no media dilution or bias").

Appellant speculates (Br. 25, 26) that making Hillary available through video-on-demand would not change any voter's mind because only viewers who "want to learn what [appellant] has to say about Hillary Clinton" would select Hillary from a video-on-demand menu. An interested audience, however, is a virtue to an adver tiser. Indeed, the "Elections '08" video-on-demand channel on which Hillary purportedly would have run is marketed-to campaigns as well as issue-advocacy groups-as an effective way to reach voters, including swing voters. See J.A. 258a, 259a. A voter's decision to select "Hillary: The Movie" from an on-screen menu does not logically imply that the voter has decided how to cast his ballot.

The apparent premise of appellant's argument-i.e., that typical voters with access to video-on-demand may select programs that they believe will reinforce their pre-existing beliefs, but will not choose programs that may inform them with respect to electoral choices as to which they are currently undecided-reflects a jaun diced view of American democracy. But even if every one who would have watched Hillary through video-on- demand was already opposed to Senator Clinton's candi dacy, it would not follow that the film lacked electoral influence. A significant amount of electoral advertising is intended not to sway undecided voters, but rather to motivate the advertiser's political "base." To the extent that Hillary would have induced viewers already op posed to Senator Clinton to become more active in their opposition to her candidacy, the film's electoral effect would have been comparable to that of any other com munication directed at decided voters.

Longstanding federal restrictions on corporate and union electioneering, see 2 U.S.C. 441b(a), apply to all forms of express advocacy, including appellant's "free DVD by mail" hypothetical (Br. 27-28). It is true that the restrictions imposed by BCRA Section 203, which extend beyond express advocacy to its functional equiva lent, are limited to broadcast media and do not apply to newspaper advertising or the Internet. See 2 U.S.C. 434(f)(3)(A)(i). Based on an extensive factual record, this Court in McConnell upheld that legislative judg ment, reiterating its statement in Buckley that "reform may take one step at a time, addressing itself to that phase of the problem which seems most acute to the leg islative mind." 540 U.S. at 207-208 (quoting Buckley, 424 U.S. at 105).8 Appellant identifies no sound basis for rejecting that conclusion now, and there are valid rea sons to subject video-on-demand broadcasts to the same financing restrictions as other broadcast advertise ments. Video-on-demand advertising has many of the strengths of the television medium, and it can target particular audiences. See J.A. 257a (regional targeting available); Brian Steinberg, Custom National TV Spots Are Close: Verklin, Advertising Age, Sept. 22, 2008, at 6, available in 2008 WLNR 18294102.

2. Hillary's 90-minute length gives it no special consti tutional status

Appellant also contends (Br. 13, 28) that the holdings of McConnell and WRTL do not apply to "feature-length films," even when those films are the functional equiva lent of express advocacy. That argument lacks merit. As explained above, Hillary is a 90-minute advocacy piece whose unmistakable import is that Senator Clinton should not be elected President. Once that proposition is established, there is no principled constitutional basis for distinguishing Hillary from the attack advertise ments discussed in McConnell simply because the movie spends more time on its electioneering than the adver tisements do.

In arguing that the rationale of McConnell does not extend to feature-length movies, appellant notes (e.g., Br. 24, 28) the apparent absence of evidence that such films had been the subject of widespread abuse before BCRA was enacted. But the legislative record on which BCRA was based amply established the prevalence, dur ing the periods directly before federal elections, of corporate-funded broadcast attacks that carefully avoid ed using the explicit words of electoral advocacy but nonetheless urged the election or defeat of clearly iden tified candidates. McConnell, 540 U.S. at 206. And the McConnell record contained evidence that advocacy groups used corporate money to broadcast lengthy "in fomercials" that were much longer than the traditional 30-second advertisement. See McConnell v. FEC, 251 F. Supp. 2d 176, 305-306, 316-317 (D.D.C. 2003) (opinion of Henderson, J.); id. at 547-548 (opinion of Kollar-Kotelly, J.); id. at 906 (opinion of Leon, J.).9 As appellant notes (Br. 26), video-on-demand technology is relatively new, and its advent has made buying a feature-length block of advertising time much easier. But nothing about the duration of Hillary separates it from the other pieces of broadcast advertising documented in the McConnell record.

3. The "overtly conservative" nature of Hillary's advo cacy does not entitle appellant to use corporate trea sury funds to broadcast the film

Appellant contends that despite its electioneering message, Hillary poses no risk of actual or apparent quid-pro-quo corruption because "[t]he self-selecting au dience of an overtly conservative documentary like Hil lary likely would not have included a significant number of Democratic primary voters." Br. 41. That contention fails for multiple reasons.

First, the lead opinion in WRTL made clear that the constitutional inquiry in this context does not turn on the sort of speculation in which appellant engages. Fol lowing Buckley, that opinion noted "the flaws of a test based on the actual effect speech will have on an election or on a particular segment of the target audience. Such a test 'puts the speaker . . . wholly at the mercy of the varied understanding of his hearers.'" 127 S. Ct. at 2666 (quoting Buckley, 424 U.S. at 43). The application and constitutionality of the longstanding restrictions on cor porate express advocacy do not depend on a determina tion that specific advertisements will actually achieve their intended objective. (There is, in other words, no constitutional exemption for ineffective corporate elec tioneering.) If a particular electioneering communica tion is the functional equivalent of express advocacy- i.e., if it "can only be reasonably be viewed as advocating or opposing a candidate in a federal election," id. at 2669-the likelihood that the communication will ulti mately affect voting behavior is irrelevant to the consti tutional analysis.

Second, there is in any event no sound basis for appel lant's contention that Hillary's "overtly conservative" orientation would deprive the film of any potential effect on voters in a Democratic presidential primary. Some members of the Democratic Party hold conservative views. In addition, many Democratic presidential pri maries are open to unaffiliated voters and members of other parties. See, e.g., Calvin Woodward, Open Prima ries in Texas and Ohio Will Test Clinton, Hous. Chron., Feb. 24, 2008, at A4, available in 2008 WLNR 3698542. And while the film featured criticisms of Senator Clinton by well-known conservative commentators, its predomi nant thrust was that Senator Clinton was unfit to be President because of a flawed character, not because of an unduly liberal political ideology. Such attacks might influence the voting behavior even of Democratic party members who did not share the interviewees' conserva tive political views.

4. Appellant's purported use of funds acquired from in dividuals to finance the film at issue here does not entitle it to a constitutional exemption from BCRA Section 203's restrictions

Appellant contends (Br. 29-34) that BCRA Section 203 is unconstitutional as applied to Hillary because the film was financed "overwhelmingly" by donations from individuals. That argument is not properly before the Court and in any event lacks merit.

Appellant has not previously contended, either in the district court or in its jurisdictional statement, that it is entitled to distinct constitutional treatment because it relies primarily on individual donations. With respect to its sources of funding, appellant's complaint simply al leged that the organization "is not a 'qualified nonprofit corporation'" within the meaning of 11 C.F.R. 114.10 (which implements the MCFL exemption, see p. 3, su pra) because appellant "receives corporate donations and engages in business activities." J.A. 11a.

Because appellant failed to raise its current line of argument in the district court, the evidentiary record is inadequate to determine whether Hillary was in fact financed "overwhelmingly" by individual donations. During discovery, appellant disclosed only those dona tions of $1000 or more that were made or pledged for the purpose of furthering the production or public distribu tion of appellant's films regarding then-Senators Clinton and Obama. See J.A. 225a, 244a; 11 C.F.R. 104.20(c)(9). The total amount of disclosable donations was approxi mately $200,000. J.A. 251a-252a. The record does not disclose the movie's production cost, but the cost of dis tributing the film, including through video-on-demand, would have greatly exceeded $200,000. See J.A. 256a (nationwide video-on-demand availability for four weeks would cost $1.2 million). It is therefore unclear from the record how appellant obtained (or intended to obtain) a substantial percentage of the funds needed to produce and distribute the film.

In any event, even if appellant's current representa tions about the film's funding sources were treated as established, they would not entitle it to a constitutional exemption from BCRA Section 203's restrictions. Appel lant concedes that it does not qualify for the narrow as- applied exemption announced in MCFL because it both engages in business activities and receives corporate donations.10 See Br. 5, 30; J.A. 11a. Thus, as in WRTL, this case does not present the question (raised by amicus National Rifle Association) whether a corporation fun ded only by individuals can make out an as-applied chal lenge on that basis. See WRTL, 127 S. Ct. at 2673 n.10 (opinion of Roberts, C.J.) (declining to reach that ques tion "because WRTL's funds for its ads were not derived solely from individual contributions").

In McConnell, the Court reaffirmed that its holding in MCFL "related to a carefully defined category of enti ties," and that each of the three features of the nonprofit corporation in that case was "central" to the Court's holding. McConnell, 540 U.S. at 210. In particular, by limiting the MCFL exception to entities that do not ac cept contributions from business corporations, the Court ensured that MCFL organizations cannot "serv[e] as conduits for the type of direct spending that creates a threat to the political marketplace." MCFL, 479 U.S. at 264; see Beaumont, 539 U.S. at 160 (noting that "[n]on profit advocacy corporations are * * * no less suscepti ble than traditional business companies to misuse as conduits for circumventing * * * contribution limits").

Appellant's proposed constitutional exemption is in two respects a significant expansion of the MCFL excep tion beyond the boundaries previously recognized and reaffirmed by this Court. First, appellant would aban don an existing bright-line rule, see MCFL, 479 U.S. at 264 (noting that Massachusetts Citizens for Life had a "policy not to accept contributions from" business corpo rations or labor unions); McConnell, 540 U.S. at 210, for a more amorphous inquiry into whether Hillary was funded "predominantly" or "overwhelmingly" by individ uals, Br. 31, 32. Cf. WRTL, 127 S. Ct. at 2666, 2669 n.7 (opinion of Roberts, C.J.) (agreeing with "the imperative for clarity in this area"); id. at 2680-2681 (Scalia, J., con curring in part and concurring in the judgment) (same).

Second, whereas the MCFL exception turns on an assessment of an organization's overall operations, ap pellant does not assert that the bulk of its total re sources were acquired from individual donations, but only that Hillary itself was financed "predominantly" or "overwhelmingly" in that manner. It would appear that, under appellant's theory, even an advocacy corporation that obtains most of its funds from business corporations would be constitutionally exempt from BCRA's restric tions with respect to any particular electioneering com munication that is financed (or mostly financed) through individual donations.

Finally, there is no logical reason to allow appellant's business-corporation donors, which could not spend their treasury funds to finance electioneering communi cations directly, to achieve the same result by using ap pellant as a conduit. The fact that funds provided by appellant's business-corporation contributors are com mingled with other dollars does not eliminate the govern ment's interest in preventing the use of those corpora tions' treasury funds for electoral advocacy. Appellant contends (Br. 32-33) that all of its advocacy accurately reflects the views of its individual donors. Even if that is so, it does not follow that appellant's electioneering necessarily reflects the views of the shareholders and customers of its business-corporation donors. See Mc Connell, 540 U.S. at 205 (citing Austin, 494 U.S. at 660).

D. Appellant Presents No Basis For Overruling This Court's Decision In Austin

In Austin, this Court held that corporations may constitutionally be barred from using their treasury funds to finance express advocacy for or against a candi date for elective office.11 494 U.S. at 660. Appellant con tends (Br. 30-31) that this Court should overrule Austin and hold that all corporations are entitled to use their treasury funds to engage in all forms of electioneering, including express advocacy in candidate elections.12

Appellant's argument is not properly before the Court. Although appellant previously sought to have BCRA Section 203 declared facially unconstitutional, see J.A. 24a, it later abandoned that claim, and the district court ultimately ordered dismissal of the relevant count pursuant to the parties' stipulation. See p. 10, supra. In addition, appellant's jurisdictional statement presented only "an as-applied challenge to * * * BCRA § 203." J.S. 5. In setting out the substantial federal questions that it believed warranted plenary review, appellant identified a dispute over the application of WRTL and a question about whether Section 203 can be applied to a "feature-length documentary movie." J.S. i, 24-28. No issue as to the continuing vitality of Austin was either "set out" in the questions presented or "fairly included therein." Sup. Ct. R. 14.1(a) (rule for certiorari peti tions), 18.3 (applying Rule 14 to jurisdictional state ments).

In any event, this case presents none of the consider ations that might support a departure from this Court's customary fidelity to precedent. Austin has been relied on by the other branches of the federal government, es pecially in crafting BCRA; by this Court, which applied Austin in upholding that statute, see McConnell, 540 U.S. at 203, 205 (explaining that none of the plaintiffs in that case, which included appellant, challenged the cor rectness of Austin's holding); and by legislatures and courts considering state and local campaign-finance measures. In short, "Congress' power to prohibit corpo rations and unions from using funds in their treasuries to finance advertisements expressly advocating the elec tion or defeat of candidates in federal elections has been firmly embedded in our law." McConnell, 540 U.S. at 203.

Appellant makes virtually no effort to explain why Austin should be overruled under "the doctrine of stare decisis or the Court's cases elaborating on the circum stances in which it is appropriate to reconsider a prior constitutional decision." Randall v. Sorrell, 548 U.S. 230, 263 (2006) (Alito, J., concurring in part and concur ring in the judgment). Appellant devotes less than two pages of its 58-page brief (Br. 30-31) to this issue, and it identifies no relevant new evidence or other intervening development that was unavailable to the Court when Austin was decided. That "incomplete presentation" is "reason enough to refuse" appellant's extraordinary re quest to overrule Austin, and as a consequence the rele vant holding of McConnell as well. Randall, 548 U.S. at 263 (Alito, J., concurring in part and concurring in the judgment).

In arguing that Austin was "wrongly decided" (Br. 30), appellant relies in part on this Court's subsequent decision in Davis v. FEC, 128 S. Ct. 2759 (2008). That ruling, however, invalidated statutory conditions placed on a wealthy individual's expenditure of personal funds in support of his own candidacy. See id. at 2766-2767, 2770-2774. The case therefore did not implicate this Court's consistent "respect for the 'legislative judgment that the special characteristics of the corporate struc ture require particularly careful regulation.'" McCon nell, 540 U.S. at 205 (quoting National Right to Work Comm., 459 U.S. at 209-210). Indeed, neither the Court nor the dissenters in Davis suggested that there was any inconsistency between that decision and the prior ruling in Austin.

Appellant also relies (Br. 30) on Bellotti, which was decided 12 years before Austin. But the Court in Bellot ti, while invalidating state-law restrictions on the use of corporate funds to influence ballot-question referenda, explained that its "consideration of a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of partic ipation in a political campaign for election to public of fice." 435 U.S. at 788 n.26. The Court further observed that "Congress might well be able to demonstrate the existence of a danger or apparent corruption in inde pendent expenditures by corporations to influence candidate elections." Ibid. Far from providing a basis for overruling Austin, the decision in Bellotti anticipated the rationale on which the Austin Court later relied.


Appellant contends (Br. 42-57) that BCRA's report ing and disclaimer requirements are unconstitutional as applied to Hillary and the advertisements promoting it. Because Hillary itself is the functional equivalent of express advocacy, see pp. 16-22, supra, the constitution ality of the reporting and disclaimer provisions as ap plied to the film is clearly established by this Court's decision in McConnell. See 540 U.S. at 196.13 Although the advertisements are not the functional equivalent of express advocacy under the lead opinion in WRTL, they would fall within BCRA's definition of "electioneering communication" if they were broadcast during the peri ods immediately preceding federal elections in which Senator Clinton was a candidate, and their airing during those periods would implicate important governmental interests related to the federal electoral process. Appli cation of BCRA's reporting and disclaimer requirements to those and similar advertisements is therefore consti tutional.

A. Disclosure Requirements Are Subject To Intermediate Scrutiny

Because "disclosure requirements * * * do not pre vent anyone from speaking," McConnell, 540 U.S. at 201 (citation and brackets omitted), they are not subject to strict scrutiny. Rather, First Amendment challenges to disclosure requirements are analyzed under a more per missive standard, which this Court has called "exacting scrutiny," and which requires that the disclosure re quirement bear a "substantial relation" to a "sufficiently important" governmental interest. Buckley, 424 U.S. at 64, 66, 75 (citation omitted); accord Davis, 128 S. Ct. at 2775 (reiterating that "there must be 'a "relevant corre lation" or "substantial relation" between the governmen tal interest and the information required to be dis closed,' and the governmental interest 'must survive ex acting scrutiny'") (quoting Buckley, 424 U.S. at 64); McConnell, 540 U.S. at 196, 231. That standard corre sponds to intermediate scrutiny, not strict scrutiny. See, e.g., United States v. Virginia, 518 U.S. 515, 532- 533 (1996).

This Court in Buckley expressly distinguished the strict scrutiny applicable to statutes (such as expendi ture limits) that impose "limitations on core First Amendment rights of political expression," 424 U.S. at 44-45, from the lesser scrutiny applicable to encroach ments on the "privacy of association" by disclosure re quirements, id. at 64. Neither Buckley, nor McConnell, nor any of the other cases that appellant cites applied strict scrutiny to an election-disclosure requirement. E.g., Buckley v. American Constitutional Law Found., Inc., 525 U.S. 182, 202 (1999) (ACLF) (applying "exact ing scrutiny" and requiring that disclosure requirements be "substantially related to important governmental in terests").14

Nor does McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995), support the application of strict scrutiny here. The Court in McIntyre explicitly distinguished the state law at issue, which prohibited the distribution of anonymous handbills addressing a variety of political issues, see id. at 338 n.3, from the disclosure require ments contained in federal campaign-finance laws. See id. at 355. BCRA's reporting requirements apply only to broadcast, cable, or satellite communications, materi als far removed from the "personally crafted statement of a political viewpoint" involved in McIntyre. Ibid. And the required disclosure pertains in part to contribu tors, who often will have played no part in crafting the corporation's electioneering message beyond contribut ing financially.

B. As Applied To Advertisements That Fall Within BCRA's Definition Of "Electioneering Communication," But That Are Not The Functional Equivalent Of Express Advocacy, BCRA's Reporting And Disclaimer Require ments Are Substantially Related To Important Govern mental Interests

The challenged disclosure provisions require the sponsor of an electioneering communication to identify itself to the Commission, disclose the amount spent on the advertisement and any large contributions ear marked to underwrite it, and identify itself in the adver tisement itself. Important governmental interests sup port each of these requirements. First, disclosure serves the public interest in transparency in political activity. Second, disclosure permits the Commission to enforce the substantive requirements of the law. Buck ley, 424 U.S. at 83; accord McConnell, 540 U.S. at 196. As this Court has held, these interests readily satisfy exacting scrutiny.

Nothing in WRTL casts doubt upon those holdings. In that case the government asserted a different inter est, and the Court applied a more stringent standard of scrutiny. The Court concluded that the government's interest in protecting the political process from corrup tion was insufficiently compelling to justify a ban on corporate-treasury financing of advertisements that, like those at issue in this case, fell within the statutory definition of "electioneering communication" but were not the functional equivalent of express advocacy. The Court did not hold, however, and its decision does not logically suggest, that such advertisements are constitu tionally exempt from all regulation. To the contrary, many categories of constitutionally protected political speech and related spending are properly subject to dis closure requirements. The government's informational and enforcement interests are distinct and substantial, and they amply justify the application of BCRA's report ing and disclaimer requirements under the exacting- scrutiny standard.

1. The government has an important interest in provid ing information to the public

a. In upholding the disclosure requirements at issue here against a facial challenge, this Court relied first on the important interest in securing the public's access to full information about the selection of their elected lead ers. McConnell, 540 U.S. at 196, 200-201. The Court had long recognized the validity of that interest in up holding requirements to disclose contributions, express advocacy, and political committees' disbursements. Buckley, 424 U.S. at 66-68, 81-82. In McConnell, the Court confirmed that the same important interest "am ply supports application of [BCRA's] disclosure require ments to the entire range of 'electioneering communica tions.'" McConnell, 540 U.S. at 196.

Promoting that interest through disclosure serves important First Amendment values. "[I]ndividual citi zens seeking to make informed choices in the political marketplace" have "First Amendment interests" in learning how electoral advocacy is funded. McConnell, 540 U.S. at 197 (citation omitted); accord Buckley, 424 U.S. at 82 (disclosure "further[s] First Amendment val ues by opening the basic processes of our federal elec tion system to public view"). And the practical efficacy of disclosure requirements in furthering that interest has been enhanced by technological advances that make it possible for groups to disclose expenditures quickly, with minimum effort, and for the public to review and even search the data with ease. Cf. Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 408 (2000) (Kennedy, J., dissenting) (online disclosure now provides an "immedi ate way to assess the integrity and the performance of our leaders").

b. Appellant, joined by numerous amici, contends that, if a particular electioneering communication is not the functional equivalent of express advocacy under WRTL, then the communication must be treated as wholly unrelated to any federal election, and BCRA's reporting and disclaimer provisions for that reason can not constitutionally be applied to that communication. See Br. 46-47, 51-52, 57; accord, e.g., CCP Br. 21-22; FFE Br. 28-29. The lead opinion in WRTL, however, provides no support for that proposition. To the con trary, the guiding premise of that opinion is that some advertisements falling within the statutory definition of "electioneering communication" can reasonably be con strued either as electoral appeals or as issue advocacy. See 127 S. Ct. at 2669. The lead opinion concluded that BCRA Section 203's financing restrictions cannot consti tutionally be applied to such advertisements, on the ground that "the tie goes to the speaker, not the cen sor." Ibid. The necessary consequence of that holding is that particular electioneering communications may be constitutionally exempt from BCRA's corporate-financ ing prohibitions even though some reasonable observers will construe the advertisements as electoral advocacy and the advertisements will foreseeably affect electoral outcomes.

For that reason, the concession on which appellant relies-i.e., that the advertisements at issue here were not the functional equivalent of express advocacy under WRTL-does not logically imply that the advertise ments were unrelated to any federal election. Appel lant's "Questions" advertisement, for example, refers to Senator Clinton as a "European socialist." J.A. 197a n.4. Although the advertisement might be interpreted as simply promoting the film without unambiguously urg ing any particular electoral outcome, it could also rea sonably be construed as electoral advocacy, and its air ing within 30 days before a presidential primary would have an obvious potential to affect voting behavior.

Under WRTL, those potential consequences are an insufficient basis for barring the use of corporate trea sury funds for advertisements that do not unambigu ously appeal for a particular vote. Voters who perceive a connection between an advertisement and an upcoming election, however, retain a significant interest in identi fying the advertisement's sponsor and underwriters, in order to assess the advertisement's credibility and the sponsor's motives. BCRA's reporting and disclaimer requirements help to vindicate that interest, and to en sure in particular that communications having potential electoral significance are not misattributed to the iden tified candidate or her opponent. Cf. Johanns v. Live stock Mktg. Ass'n, 544 U.S. 550, 565 (2005); id. at 568 (Thomas, J., concurring).

c. There is nothing incongruous in recognizing that particular communications may properly be subject to disclosure requirements even though they are constitu tionally exempt from restrictions such as spending or financing limits. In McConnell, for example, the Court held that BCRA's disclosure requirements could be ap plied to the "entire range of 'electioneering communica tions,'" 540 U.S. at 196, even though it upheld the cor porate-financing prohibition only as to express advocacy and communications that are the functional equivalent of such advocacy, id. at 206. And three additional Jus tices voted to uphold BCRA's disclosure requirements (with one exception that is not implicated in this case) even as they voted to invalidate the corporate-funding restriction on electioneering communications. See id. at 321 (Kennedy, J., concurring in the judgment in part and dissenting in part). Similarly, in Buckley the Court struck down FECA's dollar limits on independent ex penditures but nevertheless sustained the statute's dis closure requirements applicable to such expenditures. See 424 U.S. at 75-82. While acknowledging that the disclosure requirements "would no longer serve any gov ernmental purpose" if their sole function were to effec tuate the invalid spending limits, id. at 76, the Court ex plained that the disclosure requirements served an addi tional "informational interest" by "increas[ing] the fund of information concerning those who support the candi dates," id. at 81.15

Indeed, this Court has frequently explained, in inval idating particular spending or funding limits, that the relevant spending would still be subject to disclosure requirements. See, e.g., MCFL, 479 U.S. at 262 (ex plaining that "MCFL will be required to identify all con tributors who annually provide in the aggregate $200 in funds intended to influence elections, will have to specify all recipients of independent spending amounting to more than $200, and will be bound to identify all persons making contributions over $200 who request that the money be used for independent expenditures"); ACLF, 525 U.S. at 202-203, 205 (upholding requirement to dis close donations made to organizations to pay ballot-ini tiative petition circulators); see also Shrink Mo. Gov't, 528 U.S. at 428-429 (Thomas, J., dissenting). That is so even in the context of ballot-issue campaigns, in which unrestricted campaign spending creates little risk of quid pro quo corruption because the elections do not involve candidates who may become beholden to their financial supporters. See Bellotti, 435 U.S. at 792 n.32 ("Identification of the source of advertising may be re quired as a means of disclosure, so that the people will be able to evaluate the arguments to which they are be ing subjected."); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 294 n.4, 298-299 (1981) (noting that "contributors must make their identities known under * * * [an unchallenged provision of] the ordi nance").

Similarly, although lobbying is protected by the First Amendment, this Court and several courts of appeals have upheld mandatory disclosure of lobbying expendi tures on the basis of the government's interest in in forming the public of who is attempting to sway the res olution of public issues and how they are attempting to do so. See United States v. Harriss, 347 U.S. 612, 625- 626 (1954) (holding that "those who for hire attempt to influence legislation" may be required to disclose the sources and amounts of the funds they receive to under take lobbying activities); accord, e.g., Florida League of Prof'l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 460 (11th Cir.) (upholding state lobbyist disclosure statutes in light of state interest in helping citizens "apprais[e] the integrity and performance of officeholders and candi dates, in view of the pressures they face"), cert. denied, 519 U.S. 1010 (1996). The Court has thereby recognized that legislatures may require the disclosure of informa tion concerning the source of funds used to influence public policy, even when that influence occurs outside the election context.

Against this line of cases, appellant 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." Br. 47 (quoting Buckley, 424 U.S. at 80). Appellant's reliance on that aspect of Buckley is misplaced. Buckley announced the express-advocacy test (for which the reference to "unambiguously cam paign related" spending, 424 U.S. at 81, was shorthand) as a construction of the statutory phrase "for the pur pose of . . . influencing [federal elections]." Id. at 78, 79; see id. at 78-81. This Court has since held that Buckley's "express advocacy limitation, in both the ex penditure and the disclosure contexts, was the product of statutory interpretation rather than a constitutional command." McConnell, 540 U.S. at 191-192; see WRTL, 127 S. Ct. at 2670 n.7 (opinion of Roberts, C.J.).16 With respect to disclosure requirements in particular, this Court's precedents squarely refute appellant's conten tion that Congress's power is limited to communications that are "unambiguously related" to an identified fed eral candidate's campaign. The decisions discussed above make clear that compelled disclosure of financing information is permissible in a number of situations in which the disbursements in question have nothing to do with a candidate election.

2. The government has an important interest in facili tating enforcement of funding regulations

In upholding BCRA's disclosure requirements, the Court in McConnell also relied on the government's in terest in facilitating the enforcement of substantive reg ulation of contributions and funding sources. 540 U.S. at 196; see also id. at 200-201 (upholding compelled disclo sure of executory contracts where to hold otherwise would "open a significant loophole" in disclosure re quirements); id. at 237 (upholding broadcast station record-keeping provisions to "provide an independently compiled set of data for purposes of verifying candi dates' compliance with the disclosure requirements and source limitations of BCRA and [FECA]"); Buckley, 424 U.S. at 67-68. Even in the context of independent cam paign-related spending, the government's interest in disclosure "can be as strong as it is in coordinated spending." See id. at 81.

Contrary to appellant's contention (Br. 48, 52-53, 57), that interest can be implicated even where, as here, the spending in question is constitutionally exempt from statutory financing restrictions. The classic example is the MCFL organization, which is permitted to spend unlimited amounts on independent express advocacy. See MCFL, 479 U.S. at 262-263. This Court held that the government's anticorruption interest in limiting cor porate express advocacy does not apply to corporations that possess the three essential characteristics of MCFL organizations. Id. at 263-264; see p. 3, supra. The Court observed, however, that an MCFL organization must report the amounts used for its constitutionally pro tected independent expenditures. 479 U.S. at 262. The Court explained that "MCFL will be required to identify all contributors who annually provide * * * funds in tended to influence elections * * * [or] who request that the money be used for independent expenditures. These reporting obligations provide precisely the infor mation necessary to monitor MCFL's independent spending activity and its receipt of contributions." Ibid. The Court thus recognized that, although an MCFL or ganization is constitutionally entitled to finance inde pendent expenditures with its general treasury funds, FECA's disclosure provisions advance an important gov ernmental interest by enabling the Commission to deter mine whether a particular organization has crossed the line from exempt to regulable activity.

BCRA's reporting and disclaimer requirements serve an analogous anti-circumvention purpose. Even when a corporate speaker believes that a particular electioneer ing communication does not contain the functional equiv alent of express advocacy, and therefore may be fi nanced with corporate treasury funds under WRTL, the FEC is entitled to make its own assessment of the com munication's content to determine whether the WRTL exemption applies. The Commission's ability to enforce BCRA Section 203's financing restrictions with respect to electioneering communications that are the functional equivalent of express advocacy would be impeded if the agency lacked knowledge that such communications had been aired, or if it could not readily determine whether particular advertisements were sponsored by corpora tions. Requiring disclosure of all corporate electioneer ing communications, even those that the corporate speaker believes should qualify for the WRTL exemp tion, thus furthers a valid governmental interest.

That continuing enforcement interest distinguishes this case from Davis, in which the Court invalidated both a contribution-limit provision and an associated disclosure requirement. In Davis, the Court invalidated the challenged contribution regulations in their en tirety, leaving the government with no remaining en forcement interest in receiving the information con tained in the associated reports. See 128 S. Ct. at 2775. Here, by contrast, Section 203 remains facially valid and enforceable. The government therefore retains a valid interest in obtaining the information necessary to en force it, including disclosure reports filed by organiza tions whose as-applied exemption from the substantive regulation depends on whether they can qualify for "the benefit of the doubt" under WRTL.

C. Appellant Demonstrates No First Amendment Burden Arising From The Disclosure Provisions

1. Appellant presents no evidence that the disclosure requirements would cause appellant or its donors to suffer reprisals

At least since Buckley, this Court has recognized that in some rare cases, involvement in political activity can be so controversial that disclosing that involvement to the public can be a genuine burden. See Buckley, 424 U.S. at 69. But the existence and extent of such a bur den requires substantiation, with the kind of evidence that can be presented in an as-applied challenge. For that reason, this Court upheld BCRA's disclosure re quirements against a facial challenge, explaining that the plaintiffs (which included appellant) had not made a sufficient evidentiary showing as to the likelihood of reprisals. McConnell, 540 U.S. at 199.

The Court in McConnell made clear that its "rejec tion of plaintiffs' facial challenge to the requirement to disclose individual donors does not foreclose possible future challenges to particular applications of that re quirement." 540 U.S. at 199. The Court further ex plained that, to succeed in such an as-applied challenge, a plaintiff must demonstrate a "reasonable probability" that the forced disclosures "would subject identified persons to 'threats, harassment, and reprisals.'" Id. at 198-199 (quoting Brown v. Socialist Workers '74 Cam paign Comm., 459 U.S. 87, 100 (1982)). As in McCon nell, however, appellant has failed to present any evi dence beyond "bald assertion" (J.A. 209a) that it, or any of its contributors, faces any particularized risk of "threats, harassment, and reprisals" if it is linked to electioneering communications.

Appellant asserts that disclosure "can have grave consequences" and "can expose contributors to harass ment." Br. 53 (emphasis added and internal quotation marks omitted). Several amici similarly contend that disclosure can sometimes lead to reprisals. Appellant, however, points to no record evidence that it would rea sonably fear reprisals.17 And this Court has consistently rejected the proposition that the mere theoretical possi bility of reprisals, unconnected to any particularized showing of likely harm to specific speakers or donors, is sufficient to render disclosure requirements unconstitu tional. See, e.g., Buckley, 424 U.S. at 68 (holding disclo sure requirements constitutional even though "[i]t is undoubtedly true that public disclosure of contributions * * * will deter some individuals who otherwise might contribute").

2. Appellant presents no evidence that the reporting requirements would chill speech

Appellant speculates (Br. 54) that the reporting re quirements might cause donors not to contribute to ap pellant, which would reduce appellant's "ability to con tinue communicating" and "chill the constitutionally pro tected political speech of Citizens United's supporters." To the extent appellant argues that some potential do nors would not contribute because of a fear of reprisal (or some other constitutionally cognizable fear), the ar gument fails for lack of evidence, as discussed above.

To the extent appellant claims that the disclosure requirements would chill its own speech directly, that argument has been explicitly rejected in McConnell and numerous other cases holding that financial reporting relating to speech is, as a matter of law, too removed in time and space from the speech act to constitute an un constitutional hindrance. See McConnell, 540 U.S. at 197-199, 201 ("[FECA's] disclosure requirements are constitutional because they 'd[o] not prevent anyone from speaking.'") (quoting McConnell, 251 F. Supp. 2d at 241); see also ACLF, 525 U.S. at 198 (rejecting chal lenge to requirement that petition circulators file affida vits); cf. Harriss, 347 U.S. at 626 (rejecting First Amendment challenge to lobbyist-disclosure statute be cause "hazard" of speech being silenced by financial dis closure was "too remote" to outweigh government's in terest in protecting legislative process). The Court's decisions provide no support for the proposition that financial-disclosure requirements impose an unconstitu tional chill on First Amendment activity. To the con trary, because disclosure increases the range of infor mation available to citizens, it furthers First Amend ment values. See pp. 40-41, supra.

3. The disclaimer requirements impose no constitution ally significant burdens

BCRA requires the following disclaimers to be in cluded in televised electioneering communications: (1) an oral statement that the entity funding the communi cation "is responsible for the content of this advertis ing"; and (2) a written statement on the screen, with the name and contact information of the entity responsible for funding the communication, stating "that the com munication is not authorized by any candidate or candi date's committee." See pp. 5-6, supra. Appellant argues that it should not be forced to disclose its identity (Br. 45, 47 (citing McIntyre, 514 U.S. at 348)), but appellant already discloses its identity at the website referred to in the advertisements and at the beginning and end of its film. See Citizens United, Hillary: The Movie (vis ited Feb. 17, 2009) <>; J.A. 26a-27a; Am. Compl. Exh. 2 (DVD version). Truly anonymous speech therefore is not at issue in this case. In any event, McIntyre's holding regarding in-person distribution of handbills unrelated to candidate elections is inapposite here. See p. 38, supra.

Because appellant is not seeking to keep its identity secret, it contends that the disclaimer requirement bur dens it in two other ways. First, appellant argues that the disclaimer would "distort the message of [appel lant's] advertisements by suggesting to viewers-most of whom are undoubtedly familiar with the disclaimers from the ubiquitous campaign advertisements aired pre ceding every election-that those advertisements con vey a campaign-related message." Br. 50. That argu ment lacks merit. Appellant has provided no evidence that any person has ever been misled or confused by an electioneering communication disclaimer. Cf. Washing ton State Grange v. Washington State Republican Party, 128 S. Ct. 1184, 1193-1194 (2008) (rejecting facial challenge to statute governing ballot listings where evi dence did not show that any voter would be misled by listings). And the danger of such confusion is slight. The disclaimer requirements are precisely worded so that the advertiser need only take responsibility "for the content of this advertising," with no additional charac terization or definition. 11 C.F.R. 110.11(c)(4)(i) (em phasis added). If a viewer does not otherwise regard the advertisements as campaign-related, a disclaimer that identifies the sponsor as someone other than a candidate or candidate committee is unlikely to produce that im pression.18

Second, appellant also contends that the disclaimer requirements are unconstitutional because they are analogous to "restriction[s] on the quantity of political expression," such as expenditure limits. Br. 49 (quoting Buckley, 424 U.S. at 55) (brackets in original). Specifi cally, appellant argues that the oral disclaimer would preclude appellant from airing ten-second advertise ments, thereby requiring it "to pay for a longer adver tisement." Br. 50.19

The government is not aware of any authority-and appellant cites none-holding that an advertiser's con stitutional rights are impermissibly burdened by a re quirement to use some of the time in its commercial to convey important information relevant to that commer cial. The Court in McConnell explained that similar dis claimer requirements had previously been imposed with respect to other campaign-related advertising, 540 U.S. at 230, and it upheld BCRA's "inclusion of electioneering communications in the [pre-existing] disclosure regime," id. at 231. More generally, federal and state govern ments often require extensive oral and written informa tion to be included in various communications, such as advertising for pharmaceuticals, attorneys, securities, etc. As the Second Circuit stated in rejecting a First Amendment challenge to a state labeling law:

[W]e note the potentially wide-ranging implications of [plaintiff's] First Amendment complaint. Innu merable federal and state regulatory programs re quire the disclosure of product and other commercial information. See, e.g., 2 U.S.C. § 434 (reporting of federal election campaign contributions); 15 U.S.C. § 78l (securities disclosures); 15 U.S.C. § 1333 (to bacco labeling); 21 U.S.C. § 343(q)(1) (nutritional labeling); 33 U.S.C. § 1318 (reporting of pollutant concentrations in discharges to water); 42 U.S.C. § 11023 (reporting of releases of toxic substances); 21 C.F.R. § 202.1 (disclosures in prescription drug ad vertisements); 29 C.F.R. § 1910.1200 (posting notifi cation of workplace hazards); Cal. Health & Safety Code § 25249.6 ("Proposition 65"; warning of poten tial exposure to certain hazardous substances); N.Y. Envtl. Conserv. Law § 33-0707 (disclosure of pesti cide formulas). To hold that the Vermont statute is insufficiently related to the state's interest in reduc ing mercury pollution would expose these long estab lished programs to searching scrutiny by unelected courts. Such a result is neither wise nor constitu tionally required.

National Elec. Mfrs. Ass'n v. Sorrell, 272 F.3d 104, 116 (2d Cir. 2001), cert. denied, 536 U.S. 905 (2002).

In each of those areas, the advertiser undoubtedly would prefer to use its time and space for content other than a disclaimer. But that preference does not state a constitutional claim, for the disclaimer requirements do not prevent anyone from advertising. They simply may have the effect of causing appellant (like numerous other regulated advertisers) to devote a portion of an adver tisement to the disclaimer or to purchase a few more seconds of broadcast time than its message would other wise call for. There is no warrant in this Court's prece dents for treating those seconds as a burden of constitu tional dimension.20


The judgment of the district court should be af firmed.

Respectfully submitted.

Acting Solicitor General
Deputy Solicitor General
Assistant to the Solicitor

General Counsel
Associate General Counsel
Assistant General Counsel
Federal Election Commission


1 MCFL organizations are excepted. See McConnell, 540 U.S. at 211.

2 The Chief Justice's opinion is controlling because he "concurred in the judgment[] on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193 (1977) (citation omitted).

3 Hillary is no longer subject to the restrictions on electioneering communications, and Senator Clinton now holds a Cabinet position that currently precludes her from seeking partisan political office. See 5 U.S.C. 7323(a)(3). Nonetheless, in our view the appeal is not moot, in light of this Court's holding in FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007), that a comparable challenge remained justiciable. See Mot. to Dismiss or Affirm 11 n.1; WRTL, 127 S. Ct. at 2662-2663. Appellant averred in the district court that it planned to produce, and to promote, a film about then-Senator Barack Obama. J.A. 214a. That film apparently has since been released. See Citizens United, Hype: The Obama Effect (visited Feb. 17, 2009) <http://www.hypemovie. com>. If aired during the period preceding a future election in which President Obama is a candidate, that film would fall within BCRA's definition of "electioneering communication." Appellant also expressed the "intention to do materially similar advertising in materially similar situations in the future." J.A. 214a. Accordingly, as in WRTL, appel lant's challenge appears to be "capable of repetition, yet evading re view," and therefore not moot.

4 Appellant suggests (Br. 37-38) that BCRA Section 203 is infirm because similar criticisms of Senator Clinton might have been aired on Meet the Press without running afoul of BCRA's restrictions on corpor ate financing of electioneering communications. BCRA provides that the electioneering communication requirements and restrictions do not apply to communications that "appear[] in a news story, commentary, or editorial distributed through the facilities of any broadcasting sta tion." 2 U.S.C. 434(f)(3)(B)(i); see 11 C.F.R. 100.29(c)(1); cf. 2 U.S.C. 431(9)(B)(i) (FECA's longstanding media exemption). This Court has repeatedly sustained such federal and state exemptions for media activ ity as "wholly consistent with First Amendment principles." McCon nell, 540 U.S. at 208; see Austin, 494 U.S. at 668.

Appellant does not contend that Hillary falls within BCRA's media exemption, and it appears that the film would not qualify because appel lant paid for it to be broadcast in the manner of an infomercial. Al though appellant ordinarily receives payment for DVDs and theater showings of its movies unrelated to candidates, it sought to spend over $1 million to have Hillary available during the election season. J.A. 11a-13a, 213a, 256a, 260a. See FEC Advisory Op. 2004-30, at 7 (Sept. 10, 2004) <> ("[T]he very act of paying a broadcaster to air a documentary on television, rather than receiving compensation from a broadcaster, is one of the 'considerations of form' that can help to distinguish an electioneering communication from exempted media activity."); cf. FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 251 (1986).

5 The district court's focus on the film as a whole (while quoting illus trative excerpts, see J.A. 204a & n.12) was compelled by this Court's direction to examine the "substance of the [electioneering] communica tion" itself. WRTL, 127 S. Ct. at 2666 (opinion of Roberts, C.J.). Appel lant complains (Br. 34-35) that the entirety of Hillary, not just the electioneering portions, is subject to BCRA's financing rules. But that consequence occurs only because appellant has produced a movie that, taken as a whole, is the functional equivalent of express advocacy. If portions of the film would qualify as protected issue advocacy (or would not fall within the definition of "electioneering communication"), and if appellant wished to use treasury funds to broadcast only those portions, nothing in BCRA would prevent it from doing so.

6 Appellant asserts that "[t]he parties agree that Hillary is not ex press advocacy." Br. 34 (citing Def.'s Mot. for Summ. J. 37). The Com mission has not expressed any opinion on that question, in the district court or elsewhere. Rather, the Commission has simply concluded that appellant's financing of Hillary may constitutionally be subject to BCRA Section 203 because the film is, "at a minimum, the functional equivalent of express advocacy." J.A. 236a.

7 To the contrary, the amended complaint alleged that appellant planned to televise the film both through video-on-demand and "by other means," and it did not suggest that video-on-demand placement had any special constitutional significance. J.A. 19a. Indeed, the offer for video-on-demand distribution did not come until after appellant filed this litigation. J.A. 230a-231a.

Appellant also alleged that Hillary would be "within the election eering communication definition," including the requirement that the communication be "receivable by more than 50,000 persons." J.A. 19a- 20a; see 11 C.F.R. 100.29(b)(3)(ii). Appellant now contends (Br. 26 n.2), however, that video-on-demand is categorically excluded from treat ment as an electioneering communication because no single video-on- demand transmission can be received by 50,000 people. That argument was neither pressed nor passed upon below, see J.A. 199a n.6 (consider ing a different definitional question), and it is not fairly included within the questions presented in the jurisdictional statement. In any event, the argument lacks merit. The applicable FEC regulation, which is en titled to deference, provides that the number of people who can receive a cable transmission is determined by the number of cable subscribers in the relevant area. See 11 C.F.R. 100.29(b)(7)(i)(G) and (ii). Because the digital video-on-demand system that appellant wished to use had 34.5 million subscribers nationwide (J.A. 256a), the regulatory definition appears to have been satisfied.

8 Although the FEC has broadly exempted electioneering activity on the Internet from regulation, see 11 C.F.R. 100.26, 100.155 (exempting from most regulation Internet electioneering other than the purchase of paid advertising on another's website), nothing in McConnell or any other decision suggests that this exemption is constitutionally com pelled.

9 Appellant also contends (Br. 22-23) that the 30-second spot is the most effective form of advocacy and, therefore, the only form Congress was justified in regulating. But many politicians have used lengthy video segments (some with all the trappings of a studio release) to great political effect. Virtually every national political convention features a hagiographic film about the candidate (such as the Hollywood-produced The Man from Hope), and presidential candidates have bought infomer cial-length blocks of advertising time for decades. See, e.g., Frank Greve, TV Ad Uses Flag, Prayers to Portray Reagan as Leader, Miami Herald, Sept. 12, 1984, at 16A, available in 1984 WLNR 203856; Will iam Safire, Safire's Political Dictionary 113 (2008) ("Checkers speech").

10 The corporate donors identified as contributing to Hillary were business corporations, not member-supported ideological entities like Massachusetts Citizens for Life. See J.A. 244a, 252a.

11 The question had been a recurring one, but the Court had not pre viously needed to decide it. See MCFL, 479 U.S. at 257-259; Bellotti, 435 U.S. at 788 n.26; see also National Right to Work Comm., 459 U.S. at 208-209; United States v. International Union UAW, 352 U.S. 567, 589-592 (1957) (union express advocacy).

12 Acceptance of appellant's argument would effectively invalidate not only BCRA Section 203, but also 2 U.S.C. 441b's prohibition on the use of corporate treasury funds for express advocacy, as well as any state- law analogues. Notably, appellant does not ask this Court to reconsider McConnell's holding that, if corporate spending on express advocacy in candidate elections may be regulated, so may corporate spending that is the functional equivalent of express advocacy. Cf. WRTL, 127 S. Ct. at 2686 (Scalia, J., concurring in part and concurring in the judgment) (advocating, as "modest medicine," the overruling of only McConnell's comparatively recent holding as to nonexpress advocacy). Rather, ap pellant seeks to invalidate both forms of regulation.

13 If this Court holds that Hillary is not the functional equivalent of express advocacy, or that appellant's financing of the film is otherwise constitutionally exempt from the restrictions imposed by BCRA Section 203, application of the reporting and disclaimer requirements to the film would nevertheless be constitutional for the reasons set forth below.

14 Appellant's reliance (Br. 43) on Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995), and Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988), is even more misplaced. In Hurley, this Court did not apply strict scrut iny. See 515 U.S. at 577-578 (holding that the state failed to identify any "legitimate interest" in the challenged application of the statute). And in Riley, the portion of the disclaimer statute at issue that was comparable to BCRA's electioneering communication disclaimer re quirement-i.e., the portion requiring the speaker to identify himself- was not challenged. 487 U.S. at 786; see id. at 800 (noting difference be tween challenged disclaimer and requiring "detailed financial disclosure forms"); see also McConnell, 540 U.S. at 140 (distinguishing Riley on other grounds).

15 The sponsor of the electioneering communications in WRTL like wise affirmatively disavowed any challenge to BCRA's disclosure re quirements and invoked the public's access to information about the sources of its funding to support its challenge to the funding limitation. Appellee Br. at 49, WRTL, supra (No. 06-969).

16 Appellant's reliance (Br. 52) on North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008), is misplaced. In holding that leg islatures' power to "establish campaign finance laws" is limited to regu lating express advocacy and its functional equivalent, id. at 282-283, the Fourth Circuit was referring to regulation of expenditures, and did not consider reporting requirements standing alone, see id. at 280.

17 Indeed, appellant has disclosed the identity of approximately 1000 contributors during the 18 years it has maintained a PAC. See FEC Disclosure Reports-Filer ID C00295527 (visited Feb. 17, 2009) <>; FEC, Individ uals Who Gave to This Committee: Citizens United Political Victory Fund (visited Feb. 17, 2009) < ind/C00295527/>.

18 Appellant further argues that BCRA's disclosure requirements are "fatally underinclusive because [they] do[ ] not reach advertisements in nonbroadcast formats." Br. 52; see id. at 47. The Court explicitly re jected an analogous argument in McConnell. See pp. 25-26, supra (citing McConnell, 540 U.S. at 208).

19 Although appellant challenges both the spoken and written dis claimer requirements, the latter has little effect on an advertiser's abili ty to use its time as it wishes, because the disclaimer may be as small as four percent of the television screen's vertical height. 11 C.F.R. 110.11(c)(4)(iii)(A).

20 Appellant's assertion (Br. 54) that BCRA's disclosure requirements are unconstitutional because they impose "substantial administrative costs" is similarly unsupported. The Court in McConnell upheld the disclosure requirements on their face, noting that they "are actually somewhat less intrusive than the comparable requirements that have long applied to persons making independent expenditures." 540 U.S. at 196 n.81; cf. id. at 235-237 (upholding BCRA's broadcaster record- keeping requirement against administrative-burden challenge). Dis closure regarding independent expenditures, in turn, requires fewer re sources than disclosure by a corporation's separate segregated fund. See MCFL, 479 U.S. at 252-254 (comparing requirements); id. at 262 (noting that MCFL was not exempt from independent-expenditure dis closures). Appellant presents no evidence to demonstrate that its $12 million budget would not permit the absorption of the administrative costs associated with filing the electioneering communications forms, or to distinguish the burdens at issue in this case from those advanced by appellant and others in the facial challenge rejected in McConnell. These costs do not rise to the level of a First Amendment burden, much less a burden sufficient to outweigh the important governmental inter ests that underlie BCRA's disclosure requirements.

Merits Stage Brief
Brief Topic: 
Civil Div. I: General (e.g., DOT, FEC, FOIA, FTC (except antitrust), HUD)
Updated February 4, 2016