Bipartisan Campaign Reform Act

Citizens United v. Federal Election Commission

Issues

Whether (1) Citizens United may challenge BCRA's disclosure requirements imposed on "electioneering communications"  as-applied  to Hillary: The Movie; (2) whether the disclosure requirements are overly burdensome  as-applied  to Hillary: The Movie; (3) whether Hillary: The Movie should be construed as  advocating to  the viewers how to vote, subjecting it to the "electioneering communications" corporate prohibition; and (4) whether Hillary: The Movie should be considered an "advertisement," making it subject to the BCRA's disclosure and disclaimer regulations.

Prior to the 2008 primary elections, Citizens United, a nonprofit corporation dedicated to educating the American public about their rights and the government, produced a politically conservative ninety-minute documentary entitled Hillary: The Movie ("The Movie"). This documentary covers Hillary Clinton's record while in the Senate, the White House as First Lady, and during her bid for the presidential  Democratic nominee, and contains express opinions about whether she would be a good choice for President. However, The Movie falls within the definition of "electioneering communications" under the Bipartisan Campaign Reform Act of 2002 ("BCRA")-a federal enactment designed to prevent "big money" from unfairly influencing federal  elections-which , among other things, prohibits corporate financing of "electioneering communications" and imposes mandatory disclosure and disclaimer requirements on such communications. The District Court for the District of Columbia denied Citizens United's motion for a preliminary injunction to enjoin the Federal Election Commission ("FEC") from enforcing these provisions of the BCRA against Citizens United. The questions the Supreme Court will have to decide are (1) whether BCRA's disclosure requirements imposed on "electioneering communications" are to be upheld against all as-applied challenges' (2) whether BCRA's disclosure requirements are overly burdensome and fail a strict scrutiny test  as-applied  to The Movie; (3) whether The Movie is a "clear plea for action to vote," subjecting it to the "electioneering communications" corporate prohibition; and (4) whether The Movie constitutes an advertisement, making it subject to the BCRA's disclosure and disclaimer regulations.

Questions as Framed for the Court by the Parties

1. Whether all as-applied challenges to the disclosure requirements (reporting and disclaimers) imposed on "electioneering communications" by the Bipartisan Campaign Reform Act of 2002 ("BCRA") were resolved by McConnell's statement that it was upholding the disclosure requirements against facial challenge "for the entire range of electioneering communications' set forth in the statute." Mem. Op. I, App. 15a (quoting McConnell v. FEC, 540 U.S. 93, 196 (200)).

2. Whether BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering communications protected from prohibition by the appeal-to-vote test, FEC v. Wisconsin Right to Life, 127 S. Ct. 2652, 2667 (2007) ("WRTL II"), because such communications are protected "political speech," not regulable "campaign speech," id. at 2659, in that they are not "unambiguously related to the campaign of a particular federal candidate," Buckley v. Valeo, 424 U.S. 1, 80 (1976), or because the disclosure requirements fail strict scrutiny when so applied.

3. Whether WRTL II's appeal-to-vote test requires a clear plea for action to vote for or against a candidate, so that a communication lacking such a clear plea for action is not subject to the electioneering communication prohibition. 2 U.S.C. § 441b.

4. Whether a broadcast feature-length documentary movie that is sold on DVD, shown in theaters, and accompanied by a compendium book is to be treated as the broadcast "ads" at issue in McConnell, 540 U.S. at 126, or whether the movie is not subject to regulation as an electioneering communication.

Citizens United ("Citizens") is a non-profit corporation with the stated purpose of being "dedicated to restoring our government to citizens' control [t]hrough the combination of education, advocacy, and grass roots organization." See Citizens United. Prior to the 2008 primary elections, Citizens produced a documentary titled 

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Federal Election Commission v. Wisconsin Right to Life; McCain v. Wisconsin Right to Life

Issues

Is the Electioneering Communication prohibition of the Bipartisan Campaign Reform Act unconstitutional as applied to grassroots lobbying ads, such as those that Wisconsin Right to Life wanted to run in 2004?

 

In July 2004, Wisconsin Right to Life aired a series of advertisements encouraging Wisconsin voters to urge their U.S. Senators, Russell Feingold and Herb Kohl, to oppose efforts to filibuster President Bush’s federal judicial nominees. The ads came into conflict with the limitations of the Bipartisan Campaign Reform Act because they coincided with Senator Feingold’s November 2004 re-election bid. The provision at issue prohibits corporations and unions from running ads targeted at a specific candidate within 30 days of a primary or 60 days of a general election. WRTL argues that the Act should not be applied to its ads because they were grassroots “issue ads,” and not “electioneering ads” covered by this Act. The Federal Election Commission contends that the WRTL ads were intended to sway voters in the federal election, and thus the Bipartisan Campaign Reform Act should be applied. The Supreme Court’s decision in this case will have an important effect on the delicate balance between the free speech rights guaranteed by the First Amendment and the interests of campaign finance reformers seeking to limit the electoral involvement of special interests, such as corporations and unions, which may improperly influence the electoral process.

Questions as Framed for the Court by the Parties

F.E.C. v. Wisconsin Right to Life

Whether the three-judge district court erred in holding that the federal statutory prohibition on a corporation’s use of general treasury funds to finance “electioneering communications” is unconstitutional as applied to three broadcast advertisements that appellee proposed to run in 2004.

McCain v. Wisconsin Right to Life

Whether the three-judge district court erred in holding that Section 203 of the Bipartisan Campaign Reform Act, 2 U.S.C. § 441b, is unconstitutional as applied to the three advertisements that appellee Wisconsin Right to Life, Inc. sought to broadcast in 2004.

In 2004, many political experts anticipated that members of the U.S. Senate would try to further delay a Senate vote on President George Bush’s judicial nominees with continued filibustering.

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Wisconsin Right to Life v. Federal Election Commission

Issues

Although McConnell v. FEC upheld the primary definition of electioneering communications, did it also preclude parties from challenging the application of that definition to prohibit certain forms of broadcast advertisements? 

 

Plaintiff Wisconsin Right to Life broadcasted three advertisements condemning the Senate for filibustering President Bush’s judicial nominees and urging viewers to contact Senator Feingold who was campaigning for reelection at the time. Wisconsin Right to Life believed that continued broadcasting of the ads would violate the Bipartisan Campaign Reform Act’s prohibition on electioneering communications. Accordingly, Wisconsin Right to Life filed suit to request an injunction against the Federal Election Commission for possible enforcement of the restrictions on electioneering against Wisconsin Right to Life, and a judgment that the definition of electioneering, as applied to Wisconsin Right to Life’s ads, violated the Constitution. The court relied on a prior Supreme Court case, McConnell v. Federal Election Commission, to dismiss Wisconsin Right to Life’s “as-applied” challenge. Wisconsin Right to Life now argues that McConnell did not, indeed could not, preclude as-applied challenges and that the ads were a permitted form of grassroots lobbying, not electioneering. The Federal Election Commission argues that McConnell squarely precluded as-applied challenges and that Wisconsin Right to Life’s distinction between grassroots lobbying and electioneering is a line drawn in the sand on a windy day.

Questions as Framed for the Court by the Parties

Whether as-applied challenges are permitted to the prohibition on corporate disbursements for electioneering communications at 2 U.S.C. § 441b after McConnell v. FEC, 540 U.S. 93 (2003)?

Historic overview

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