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." Prior to the 2008 primary elections, Citizens produced a documentary titled Hillary: The Movie ("The Movie") using funds donated almost exclusively from private individuals, and released it for sale on DVD on January 7, 2008. The United States District Court for the District of Columbia stated that "The Movie focuses on [former] Senator Hillary Rodham Clinton's Senate Record, her White House record during President Bill Clinton's presidency, her presidential bid, and includes express opinions on whether she would make a good president."
If Hillary Clinton had become the Democratic presidential nominee, Citizens had planned to air at least three short television advertisements promoting The Movie within thirty days prior to the 2008 Democratic National Committee Convention and within sixty days prior to the general presidential election in November, 2008. - Citizens had also begun negotiations to broadcast The Movie through a national video on-demand ("VOD") channel. However, anticipating the Federal Election Commission ("FEC") stepping in and enforcing certain provisions of the Bipartisan Campaign Reform Act of 2002 ("BCRA") against Citizens, Citizens sought a preliminary injunction from the District Court for the District of Columbia to prevent the FEC from doing so.
BCRA is a federal enactment designed to restrict "big money" from unfairly influencing national politics by regulating "electioneering communications." BCRA defines "electioneering communications" as any cable or satellite broadcast made within sixty days before a general election or thirty days before a primary election, and which "refers to a clearly identified candidate for Federal office[.]" Citizens concedes that its planned advertisements and VOD broadcast of The Movie fall within this definition of "electioneering communications," making them subject to three relevant restrictions under BCRA. First, BCRA § 203 prohibits Citizens from using its corporate funds to broadcast "electioneering communications" in order to advocate how a viewer should vote. - Second, if Citizens passes the first requirement, BCRA § 201 requires Citizens to disclose the identities of anybody who contributed more than $1,000 dollars towards the production of The Movie. Third, BCRA § 311 requires Citizens to display for at least four seconds a written disclaimer in its advertisements stating that it is responsible for the contents.
On January 15, 2008, the District Court for the District of Columbia denied Citizens' motion for a preliminary injunction to enjoin the FEC from enforcing certain provisions of BCRA in regards to The Movie. Citizens appealed, and the Supreme Court noted probable jurisdiction (follow hyperlink; see "Appellate jurisdiction") on November 14, 2008 on the questions of whether BCRA's disclosure and disclaimer requirements are unconstitutional as-applied to Citizens' planned broadcast of The Movie via VOD and advertisements for The Movie, and whether BCRA's prohibition on corporate funding of "electioneering communications" is unconstitutional as-applied to The Movie.
The Supreme Court has upheld section 203 of the Bipartisan Campaign Reform Act ("BCRA"), which says that corporations cannot use money from their general treasuries to finance express advocacy of a political candidate or its "functional equivalent." , "Functional equivalent" has been defined as a communication that could reasonably be interpreted as "an appeal for a vote for or against a specific candidate." Appellee Federal Election Commission ("FEC") argues that appellant Citizens United ("Citizens") has no constitutional right to use funds for its film, Hillary: The Movie ("The Movie"), because the film advocates a particular vote and therefore constitutes the functional equivalent of advocacy. According to the FEC, The Movie must be deemed a functional equivalent because while it did not explicitly urge voters to vote against Hillary Clinton, it clearly tried to influence them that she was unfit and should not be voted for by calling her character and qualifications repeatedly into question. Specifically, the film calls Clinton "dishonest," "Machiavellian," and "willing to do anything for power." The FEC also points out that no magic words are constitutionally required for the work to be a functional equivalent so long as the underlying message is clear.
According to Citizens, however, the FEC does not have the authority to restrict The Movie because it is subject to a reasonable interpretation other than that of a plea to vote against Clinton, and therefore does not qualify as the functional equivalent of express advocacy. Citizens points to FEC v. Wisconsin Right To Life, Inc, where the court held that ads are not to be considered the functional equivalent of express advocacy if they could possibly be interpreted as conveying information or education. Since the FEC wants to prohibit distribution of the entire film, Citizens points out, it would have to apply that standard to the film as a whole. However, Citizens argues, the film in its entirety is a documentary of historical events meant to educate viewers about issues and a potential candidate's stance on those issues, and is not a plea for votes. Citizens emphasizes that the mere fact that the viewer may take some of the information into account when casting his vote is not enough to classify the film as the functional equivalent of express advocacy. In addition, while Citizens acknowledges that no magical words are required for something to be express advocacy, Citizens argues that this does not mean that every time someone expresses their opinion as to another's character or qualifications, it is an appeal for a vote. [b1]
Citizens argues that the Court should follow its ruling in Buckley v. Valeo, which stated that the right to freedom of speech and expression is not dependant on where the money for that expression was obtained. Citizens points out that more than 99% of the funding for The Movie came from individuals and the fact that the rest came from for-profit sources should not affect the right to free speech. Citizens further points to First Nat'l Bank of Boston v. Bellotti, where the Court determined that the mere fear that corporations may exert a lot of influence is not enough to justify suppressing their speech. A wealthy individual could just as easily exert the same level of influence, tied even less to public support, as a corporation whose financial decisions involve more than one person. Citizens further points out that contrary to the FEC's concern, since so much of the funding here actually came from the public, the documentary is quite reflective of public support.
On the other hand, the FEC points out that Bellotti is irrelevant to the issue here, as that case specifically states that it does not imply any corporate rights to participate in political campaigns. According to the FEC, Austin v. Mich. Chamber of Comm. is the controlling case, which holds that corporate financial support is too dangerous because it eliminates the tie between campaign finance and public support, and allows corporations with deep pockets to exert too much influence on the election and the public's perception of the candidates. In addition, the FEC contends that Citizens' argument, which claims exemption from BCRA's restriction because individuals contributed its primary funds, lacks evidentiary support since it was not raised at the district court level. Further, the FEC argues, even if the project was funded primarily by individuals, accepting any funding from a for-profit corporation is enough for the restriction to apply. The FEC points out that mixing corporate funds with individual funds does not cure the problems associated with corporate funding because it is important that corporations who could not spend their funds directly on advocacy are not able to do so indirectly through smaller contributions.
Anti-corruption measure vs. unconstitutional restriction on free speech
Citizens argues that a financing restriction on the film violates free speech and therefore is subject to strict scrutiny, which requires that the restriction further a compelling interest and be narrowly tailored to meet that interest. Citizens contends that the FEC's anti-corruption interest is not compelling in the case of feature length films that are distributed on demand and privately financed by individuals. According to Citizens, anti-corruption is only a concern when the financial support is being given in exchange for political favors and consequently undermining the integrity of democracy. Citizens points to FEC v. Mass. Cit. for Life, where the Court found that express advocacy funded by individual donors was not to be restricted because it didn't pose corruption concerns. Further, viewers of Videos On Demand ("VOD") films have opted to receive the information on purpose, unlike viewers of television or radio ads, and are therefore far less vulnerable to influence or corruption. Finally, Citizens points out that the FEC's disparate treatment of VOD (but not DVDs) as potentially corrupt casts serious doubt that there is a genuine state interest in preventing communication.
The FEC, on the other hand, argues that by seeking to distribute content via VOD rather than through television or radio, Citizens is trying to create its own special exception to the BCRA restrictions. According to the FEC, just because the film is not being broadcast to all viewers the same way that a television or radio ad would and rather reaches only those who choose to view it, does not mean that those viewers have already made up their minds and will not be influenced by it. The FEC points out that even if the film merely motivated prior Hillary supporters to be more active, that effect would be enough to justify the restriction. The FEC argues that while section 203 of the BCRA extends the express advocacy restriction to certain types of media and does not explicitly include VOD, it does not grant an exemption to those media types.
Citizens argues that the disclosure requirements violate the First Amendment when applied in this case because they further no important government interest. According to Citizens, strict scrutiny must be applied since the disclosure requirements would force speech; however, strict scrutiny subsequently fails because there is no compelling interest. Citizens further argues that even if exacting scrutiny is used, the result would be the same. Citizens argues that the FEC's argument that the disclosure is necessary to help the audience assess the credibility of the ad does not make sense because viewers are smart enough to know to discount the message if they are unsure of its producer. Also, Citizens points out that even if there was some government interest, it would be outweighed by the burden that the requirements place on Citizens. Citizens fears that the requirements would turn viewers off to the film by making it seem less like a documentary and more like a piece of propaganda, and that it would hinder their ability to make future expressions because the requirements would chill donations. Citizens stresses that BCRA's disclosure requirements, like the financial restrictions, are only to be applied to express advocacy, and therefore do not extend to this communication since viewers do not need to be protected from misinformation.
In contrast, the FEC stresses that disclosure requirements are subject to exacting scrutiny rather than strict scrutiny, which means that the restrictions must bear a substantial relation to a sufficiently important interest. According to the FEC, the interests served by the disclosure requirements here are transparency and monitoring and so must extend to all electioneering communication, and not just to those deemed to be the functional equivalent of express advocacy. The FEC points to McConnell, which held that disclosure requirements could be applied to all election communications even though financing restrictions could not. The FEC stresses that in order for the public to make fully informed choices, the voter needs to know the source of any information perceived to be in connection with the election in order to properly assess its credibility. Finally, the FEC argues that while in some cases the burden of the disclosure requirements can outweigh the government's interest, here this is not the case because there is no showing that the disclosure would "subject identified persons to ‘threats, harassment, and reprisals.'" Moreover, the FEC contends, Citizens offers no evidence to support its arguments that the restrictions would hinder its ability to communicate, and that the disclosure is so far removed that it probably would not affect donations.
Does the Bipartisan Campaign Reform Act of 2002's ("BCRA") corporate prohibition on "electioneering communications" apply to a documentary consisting of "electioneering communication" about a candidate running for federal office which was produced by a corporation but where private individuals donated almost all of the funds that paid for the documentary's production? Are the disclosure and disclaimer requirements unduly burdensome as applied to Hillary: The Movie? Or, is The Movie the functional equivalent of express advocacy, and if not, may the reporting and disclaimer requirements be permissibly applied to The Movie as an advertisement?
Appellant Citizens United ("Citizens") argues that BCRA § 203 is unconstitutional as-applied to the broadcast of Hillary: The Movie ("The Movie") via Video on Demand ("VOD") because the government's anti-corruption interest does not apply to The Movie, a documentary almost entirely financed by individual donations and broadcast only to self-selecting viewers, and because The Movie is merely a critical biography and does not advocate to the viewers how to vote. - Citizens also argues that BCRA §§ 201 and 311's disclosure and disclaimer requirements are unconstitutional as-applied because they do not further a compelling government interest. On the other hand, Appellee Federal Elections Commission ("FEC") argues that BCRA § 203's restrictions on corporate financing of "electioneering communications" are constitutional as-applied because The Movie clearly advocates to the viewers how to vote. - The FEC also argues that BCRA §§ 201 and 311's disclaimer and disclosure requirements are constitutional as-applied because they are substantially related to the important government interests of serving the public interest in transparency in political activity, and enforcing substantive requirements of the law.
Several amici for Citizens argue that a decision allowing BCRA's disclosure and disclaimer regulations and its prohibition on corporate "electioneering communications" to apply here would further chill free speech by private citizens. - The Foundation for Free Expression amici argues that because the current law defining "electioneering communications" is so broad, documentaries which are almost entirely funded by individuals, such as The Movie, can be swept under the definition. Thus, amici argue, the "onerous burdens" that BCRA places on such broadcasts causes many non-profit corporations, and in turn, their private donors, to simply remain silent rather than search out alternative means of expressing their free speech. - In addition, amici Center for Competitive Politics points to studies that have found that mandatory disclosure requirements, similar to those imposed by BCRA, dissuades many private individuals from participating in political activities. -
Furthermore, other amici add that these requirements can often lead to harassing threats, physical violence, and economic harm. One amici points to an example of a woman who donated $500 to Presidential primary candidate John Edwards, and who ended up on a list of "targets" issued by an organization that the FBI had identified as a serious domestic terrorism threat. And Amici Alliance Defense Fund points to examples of property damage caused to churches that supported California's recent Proposition 8 and economic boycotts of stores whose owners personally supported Proposition 8. -
On the other hand, the FEC argues that, contrary to having a chilling effect, a decision upholding BCRA's mandatory disclosure requirements will further First Amendment interests by letting individual citizens and the general public learn how electoral advocacy is funded. The FEC contends that disclosure ensures that private individuals are able to make fully informed decisions when choosing a candidate. The FEC further argues that a favorable decision upholding BCRA's disclaimer requirement will allow viewers to judge an advertisement's credibility and identify the sponsor's motives behind the advertisement, thus enhancing viewers' ability to make informed decisions when selecting a candidate.
Amici for the FEC add that "[s]unlight is . . . the best of disinfectants." These amici argue that disclosure acts to encourage corporations to avoid any signs of corruption by being completely forthcoming with their expenditures. They argue that disclosure gives corporate shareholders the ability to know what political candidate a corporation is supporting and to be able to object to the corporation's political actions if the shareholders hold a contrary view. Further, amici argue, disclosure enables the corporate directors to better govern the corporation internally, and that mandatory public disclosure is often the easiest way for directors to monitor corporate political activity.
In Citizens United v. Federal Election Commission, the Supreme Court will have to decide whether a ninety-minute video on demand about Hillary Clinton is subject to the financial restrictions and disclosure requirements of the Bipartisan Campaign Reform Act or whether the film qualifies for an exemption of either. The Court will need to balance the interest in protecting free speech with that of protecting the public from corruption and improper influence over the election. The decision will have a tremendous impact on not-for-profit organizations that publish these types of documentaries, as well as political candidates. As technology changes and continues to increase the ways in which information is distributed to the masses, cases like this one here, which attempt to define exactly what is to be regulated and how it is done, are becoming increasingly more important.