supreme court of the united states - federal election commission

____________

____________

____________

No 08-205

In The

Supreme Court of theUnited States

CITIZENS UNITED Appellant v

FEDERAL ELECTION COMMISSION Appellee

On Appeal from the United States District Courtfor the District of Columbia

____________

Brief of Amicus Curiae Committee for Truth in Politics Inc

Supporting Appellant

James Bopp Jr Counsel of Record

Richard E Coleson Clayton J CallenBOPP COLESON amp BOSTROM

1 South 6th Street Terre Haute IN 47807-3510 812232-2434 (telephone)812235-3685 (facsimile)

January 15 2009 Counsel for Amicus Curiae

Table of Contents

Table of Authorities (ii)

Statement of Interest 1

Summary of Argument 2

Argument 3

I Campaign-Finance Laws May Only RegulateUnambiguously-Campaign-Related Activity 3

II WRTL IIrsquos Appeal-to-Vote Test Requires aClear Plea for Action Urging a Vote 17

Conclusion 25

(i)

Table of Authorities

Cases

American Civil Liberties Union of Nevada v Heller 378 F3d 979 (9th Cir 2004) 10

Anderson v Spear 356 F3d 651 (6th Cir 2004) 10

Buckley v Valeo 424 US 1 (1976) 2-8 10-11 13 15-16 18 21

California Pro-Life Council v Getman 328 F3d 1088 (9th Cir 2003) 22

Center for Individual Freedom v Carmouche 449 F3d 655 (5th Cir 2006) 10

FEC v Furgatch 807 F2d 857 (9th Cir 1987) 20-22

FEC v Massachusetts Citizens for Life 479 US 238 (1986) 9 18

FEC v Wisconsin Right to Life 127 SCt 2652 (2007) passim

Koerber v FEC No 08-39 (ED NC Oct 29 2008) 1

Marks v United States 430 US 188 (1977) 1

McConnell v FEC 540 US 93 (2003) 9-11 14-15 20 22

(ii)

North Carolina Right to Life v Leake 525 F3d 274 (4th Cir 2008) 5 13

Constitution Statutes Regulations amp Rules

2 USC sect 431(17) 9

2 USC sect 434(f)(3) 15

Bipartisan Campaign Reform Act 1 5

Federal Election Campaign Act 5

US Const amend I 3

US Const art I sect 4 4

Other Authorities

The American Heritage Dictionary of the English Language (4th ed 2000) 18

James Bopp Jr amp Richard E Coleson Distinguishshying ldquoGenuinerdquo from ldquoShamrdquo in Grassroots Lobbyshying Protecting the Right to Petition During Elecshytions 29 Camp L Rev 353 (2007) 16

(iii)

Statement of Interest1

The Committee for Truth in Politics Inc (ldquoCTPrdquo) isa nonstock nonprofit North Carolina corporation thatadvocates for limited government and honesty in govshyernment Before the 2008 general election it broadcastan electioneering communication about then-candidateBarack Obamarsquos record on abortion It was protected

2from the Prohibition under WRTL IIrsquos ldquoappeal to voterdquo test FEC v Wisconsin Right to Life 127 SCt 2652

32667 2670 (2007) CTP complied with the DisclaimerRequirement but did not comply with the ReportingRequirement and challenged the Disclosure Requireshyments as applied to electioneering communications protected by WRTL IIrsquos appeal-to-vote test The district court denied a preliminary injunction See Koerber v FEC No 08-39 (ED NC Oct 29 2008) appeal dockshyeted No 08-2257 (4th Cir Nov 13 2008) CTP is at

1 No party counsel authored any of this brief (CTP counshysel only represented Appellant until November 26 2008)and no party party counsel or person other than CTP paidfor brief preparation and submission The parties consentedto the filing of this brief

2 CTP follows the Jurisdictional Statement terminology id at 5 for Bipartisan Campaign Reform Act (ldquoBCRArdquo) sect 201 (ldquoReporting Requirementrdquo) sect 311 (ldquoDisclaimer Reshyquirementrdquo) (these requirements together are the ldquoDiscloshysure Requirementsrdquo) and sect 203 (ldquoProhibitionrdquo)

3 This opinion (ldquoWRTL IIrdquo) by Chief Justice Roberts joined by Justice Alito states the holding See Marks v United States 430 US 188 193 (1977) (position in concurshyrences on narrowest grounds)

2

risk for an intrusive burdensome and unconstitutionshyal investigation and enforcement proceeding

CTPrsquos counsel represented WRTL in WRTL II and represented Citizens United in this case throughNovember 26 2008 Counsel respectfully refer theCourt to their summary judgment briefing below (Docs 52 61) as well as the Jurisdictional Statement and Brief Opposing Motion to Dismiss or Affirm in this Court for further arguments

Summary of Argument

In Buckley v Valeo 424 US 1 (1976) this Courtdetermined that campaign finance laws may onlyregulate communications ldquounambiguously related to the campaign of a particular federal candidaterdquo Id at 80 Because Buckley applied this threshold requireshyment to disclosing expenditures for communications id at 80 it has direct application to the DisclosureRequirements which are unconstitutional as appliedto communications that are not unambiguously camshypaign related

WRTL IIrsquos appeal-to-vote test 127 SCt at 2667 isthe application of the unambiguously-campaign-relatedprinciple to electioneering communications So whetheran electioneering communication may be subjected to the Prohibition (at issue in WRTL II) or the DisclosureRequirements depends on whether an ldquoad is suscepshytible of no reasonable interpretation other than as an appeal to vote for or against a specific candidaterdquo id

For an electioneering communication to be subject to interpretation ldquoas an appeal to voterdquo it must contain a clear plea for action urging a vote Since it must beassumed that the words of this test were chosen

3

carefully it is decisive that the test is not whether anad promotes attacks supports or opposes a candidatemdashor whether it focuses on or criticizes a candidatemdash but whether it must be interpreted ldquoas an appeal to voterdquo An ad cannot be interpreted as an appeal absent a clear plea for action which requires some clearcommand or invitation to the hearer And an ad cannot be interpreted as an appeal to vote unless the appeal somehow urges a vote

Argument

I Campaign-Finance Laws May Only Regulate Unambiguously-Campaign-Related Activity4

Constitutional analysis should begin with the Constitution which mandates that ldquoCongress shallmake no law abridging the freedom of speechrdquo USConst amend I This ldquolsquoguarantee has its fullest andmost urgent application precisely to the conduct of campaigns for political officersquordquo Buckley 424 US at 15 (citation omitted) If ldquoCongress shall make no lawrdquohow may government regulate election-related First

4 Part I addresses the second of the Jurisdictional Stateshymentrsquos Questions Presented Citizens United makes the unambiguously-campaign-related argument See eg Brief for Appellant at 46 (because ads ldquoneither expressly nor imshypliedly advocate the election or defeat of that candidaterdquo adisclaimer ldquowould not provide viewers with relevant lsquoelectora[l] informationrsquordquo) 48 n3 51 (interest in discloshysure of donors for ldquocampaign-related speech is inapplishycablerdquo to ads that neither ldquoexpressly nor impliedly advoshycaterdquo) Because the unambiguously-campaign-related princishyple addresses a threshold requirement see infra the Court need go no further to decide this case

4

Amendment activities Buckley identified the answer as ldquo[t]he constitutional power of Congress to regulate federal electionsrdquo Id at 13 (footnote omitted) (emphasis added) (citing US Const art I sect 4)

This authority is self-limiting If government regushylates speech and association not clearly related to elecshytions it exceeds its authority Key to Buckleyrsquos analysisin the expenditure-disclosure context is its question of whether ldquothe relation of the information sought to the purpose of the Act [regulating elections] may be too reshymoterdquo and therefore ldquoimpermissibly broadrdquo id at 80 (emphasis added) So this Court requires that governshyment may only regulate First Amendment activity where the activity is ldquounambiguously related to the campaign of a particular federal candidaterdquo id at 80 (emphasis added) ie ldquounambiguously campaign reshy

5latedrdquo id at 81 After this first-principle threshold is

5 The Fourth Circuit also identified this need to ldquocabinrdquo campaign-finance regulations

Buckley recognized that legislatures have power to regulate elections and may estabshylish standards that govern the financing of politicalcampaigns In particular the Court identified ldquolimitshy[ing] the actuality and appearance of corruptionrdquo asan important governmental interest served by camshypaign finance regulation The Court simultaneshyously noted however that campaign finance restricshytions ldquooperate in an area of the most fundamentalFirst Amendment activitiesrdquo and thus threaten to limit ordinary ldquopolitical expressionrdquo Buckley recognized the need to cabin legislative authorityover elections in a manner that sufficiently safeshyguards vital First Amendment freedoms It did so by

5

met any regulation must still survive ldquoexacting scrutinyrdquo See id at 44-48 (imposing express-advocacyconstruction to protect ordinary political speech thenapplying exacting scrutiny) 64 (requiring ldquoexacting scrutinyrdquo and ldquoalso lsquosubstantial relationrsquo between the governmental interest and the information reshyquired to be disclosedrdquo (emphasis added) (citationsomitted)) 80-81 (employing express-advocacy construcshytion to satisfy unambiguously-campaign-related princishyple then applying exacting scrutiny)

demarcating a boundary between regulable elecshytion-related activity and constitutionally protected political speech after Buckley campaign financelaws may constitutionally regulate only those acshytions that are ldquounambiguously related to the camshypaign of a particular candidaterdquo This is beshycause only unambiguously campaign related commushynications have a sufficiently close relationship to thegovernmentrsquos acknowledged interest in preventingcorruption to be constitutionally regulable

North Carolina Right to Life v Leake 525 F3d 274 281 (4th Cir 2008)

The need to cabin congressional and FEC authority toregulate ordinary political speech is especially evident in the present case where the Federal Election Commission argued below that under the Federal Election Campaign Act and the Bipartisan Campaign Reform Act ldquothe governshymentrsquos interest in providing information to the public exshytends beyond speech about candidate election campaigns to encompass activity that attempts to sway public opinion or action on the specified issuesrdquo See Doc 61 (quoting Doc 55) (emphasis added)

6

Buckley employed two tests to implement theunambiguously-campaign-related principle First toimplement the requirement for PAC status this Courtcreated the major-purpose test for ldquopolitical commitshyteesrdquo

To fulfill the purposes of the Act [ie regulatingelections] they need only encompass organizashytions that are under the control of a candidate or the major purpose of which is the nomination orelection of a candidate Expenditures of candishydates and of ldquopolitical committeesrdquo so construedcan be assumed to fall within the core area sought to be addressed by Congress They are by definition campaign related

Id at 79 (emphasis added) Second to implement theunambiguously-campaign-related requirement as tonon-PAC expenditures this Court imposed the express-advocacy test ie whether a communication containsexplicit words expressly advocating the election or defeat of a clearly identified candidate id at 44 80 ldquoThis reading is directed precisely to that spending that is unambiguously related to the campaign of a parshyticular federal candidaterdquo Id at 80 (emphasis added)ldquo[A]s construed [the disclosure requirement] bears asufficient relationship to a substantial governmentalinterest As narrowed [it] does not reach all partisandiscussion for it only requires disclosure of those expenditures that expressly advocate a particular election resultrdquo Id It ldquoshed[s] the light of publicity on spending that is unambiguously campaign relatedrdquo Id at 81 (emphasis added)

Because Buckley expressly applied this first princishyple to expenditure disclosure id at 80 it has direct

7

application here But Buckley applied the unambigushyously-campaign-related principle in four contexts (a) ldquoexpenditurerdquo limitations id at 42-44 (b) ldquopolitical committeerdquo (ldquoPACrdquo) status and disclosure id at 79 (c) non-PAC disclosure of ldquocontributionsrdquo and independent ldquoexpendituresrdquo id at 79-81 and (d) ldquocontributionsrdquo id at 23 n24 78 (ldquoSo defined lsquocontributionsrsquo have a suffishyciently close relationship to the goals of the Act forthey are connected with a candidate or his campaignrdquo)

Buckley also anchored the need for the unambigushyously-campaign-related principle in another constitushytional first principle ie the fact that ldquo[i]n a republic the people are sovereignrdquo and ldquo[d]iscussion of publicissues and debate on the qualifications of candidatesare integral to the operation of the system of governshyment established by our Constitutionrdquo id at 14 Buckley noted a dissolving-distinction problem thatthreatens to interfere with the Peoplersquos debate in theirsovereign self-governing role which problem requiresa bright linemdashbetween (a) ldquodiscussion of issues andcandidatesrdquo and (b) ldquoadvocacy of election or defeat ofcandidatesrdquomdashto protect ordinary political speech

[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practicalapplication Candidates especially incumbentsare intimately tied to public issues involvinglegislative proposals and governmental actionsNot only do candidates campaign on the basis oftheir positions on various public issues butcampaigns themselves generate issues of publicinterest

8

Id at 42 (emphasis added) The Court elaborated onthe necessity of a bright line between (a) ldquodiscussionlaudation [and] general advocacyrdquo and (b) ldquosolicitashytionrdquo

[W]hether words intended and designed to fallshort of invitation would miss that mark is a question both of intent and of effect No speakerin such circumstances safely could assume thatanything he might say upon the general subjectwould not be understood by some as an invitashytion In short the supposedly clear-cut distincshytion between discussion laudation general adshyvocacy and solicitation puts the speaker inthese circumstances wholly at the mercy of thevaried understanding of his hearers and conshysequently of whatever inference may be drawnas to his intent and meaning [para] Such a distincshytion offers no security for free discussion Inthese conditions it blankets with uncertaintywhatever may be said It compels the speaker tohedge and trim

Id at 43 (emphasis added) 6 Buckley cited this dissolvshying-distinction problem immediately before its firstimposition of the express-advocacy construction 424US at 42-44 so in its reference to the ldquovaguenessrdquo of the ldquoexpenditurerdquo definition id it also had in mind the overbreadth that results from violation of the unambiguously-campaign-related principle Buckleyexpressly articulated the overbreadth concern when it

6 WRTL II reiterated the need for bright-line speech protection based on this dissolving-distinction problem See 127 SCt at 2659 2669

9

imposed the express-advocacy construction a secondtime ldquo[t]o insure that the reach of [the expenditure disshyclosure provision] [wa]s not impermissibly broadrdquo Id at 80 (emphasis added)

In FEC v Massachusetts Citizens for Life 479 US 238 (1986) (ldquoMCFLrdquo) this Court again recognized andapplied the unambiguously-campaign-relatedprinciple MCFL applied this first principle to the prohibition oncorporate and union independent expenditures7 at 2 USC sect 441b 479 US at 249 The Court made clearthat it was imposing the construction because of the dissolving-distinction overbreadth problem id and the consequent need for a bright line ldquoto distinguish discussion of issues and candidates from more pointed exhortations to vote for particular personsrdquo id (emphashysis added) MCFL also reiterated the major-purposetest which implements the unambiguously-campaignshyrelated principle as to PAC status Id at 253 262

McConnell declared ldquothe express advocacy restricshytion an endpoint of statutory interpretation not a first principle of constitutional lawrdquo McConnell v FEC 540 US 93 190 (2003) But the express-advocacy conshystruction was created to implement the unambiguousshyly-campaign-related principle which is a first principle of constitutional law McConnell recognized this by quoting Buckleyrsquos explanation that the express-advocashycy construction was done ldquolsquo[t]o insure that the reachrsquo of the disclosure requirement was lsquonot impermissibly broadrsquordquo 540 US at 191 (emphasis added) (quoting

7 An ldquoindependent expenditurerdquo is now an express-advoshycacy communication not coordinated with a candidate 2USC sect 431(17)

10

Buckley 424 US at 80) McConnell also recognized theunambiguously-campaign-related principle when itstated that ldquo[i]n narrowly reading the FECA provisions in Buckley to avoid problems of vagueness and over-breadth we nowhere suggested that a statute that was neither vague nor overbroad would be required to toe the same express advocacy linerdquo Id at 192 (emphasisadded) So where a restriction on First Amendment liberties is vague or overbroad (eg for regulatingactivity not unambiguously campaign related) it must toe the express advocacy line 8 or its functional equivalent in the electioneering communication context as established by WRTL IIrsquos appeal-to-vote test 127 SCt at 2667 McConnellrsquos facial upholding of the

8 Since McConnell several courts have embraced the express advocacy construction as an indispensable tool indealing with vague or overbroad provisions For example the Ninth Circuit in American Civil Liberties Union of Neshyvada v Heller 378 F3d 979 985 (9th Cir 2004) followedthe Sixth Circuit in endorsing the express advocacy test asthe appropriate tool where a provision is vague and overbroad

Nevertheless as stated recently by the Sixth Cirshycuit McConnell ldquoleft intact the ability of courts tomake distinctions between express advocacy andissue advocacy where such distinctions are necesshysary to cure vagueness and over-breadth in statuteswhich regulate more speech than that for which thelegislature has established a significant governmenshytal interestrdquo Anderson v Spear 356 F3d 651 664shy65 (6th Cir 2004)

See also Center for Individual Freedom v Carmouche 449 F3d 655 (5th Cir 2006)

11

electioneering communication Prohibition only ldquoto theextent that [an ad is] the functional equivalent ofexpress advocacyrdquo 540 US at 206 also reaffirms theunambiguously-campaign-related principle because it recognizes that only true equivalents to strictly-defined express advocacy may be regulated 9 McConnell also expressly recognized the existence of ldquoissue advocacyrdquowhich it described as ldquolsquodiscussion of political policygenerally or advocacy of the passage or defeat of legislationrsquordquo id at 205 (quoting Buckley 424 US at 48) and of ldquogenuine issue adsrdquo that likely lay beyond Congressrsquo ability to regulate Id at 206 n88

WRTL II applied the unambiguously-campaignshyrelated principle to eliminate overbreadth in the regushylation of electioneering communications when it statedits test for functional equivalence10 ldquo[A]n ad is thefunctional equivalent of express advocacy only if the adis susceptible of no reasonable interpretation otherthan as an appeal to vote for or against a specific

9 McConnell unequivocally recognized that express advoshycacy itself requires ldquomagic wordsrdquo See id at 217 (requiringpolitical parties to choose between coordinated expendituresand express-advocacy independent expenditures ldquoforced[them] to forgo only magic wordsrdquo)

10 The ldquofunctional equivalent of express advocacyrdquo is not a type of express advocacy so a functional-equivalence testmay not be used to define express advocacy Nor is thereany free-floating functional-equivalence test in campaign-finance law because McConnell used the concept only in theelectioneering-communication context 540 US at 206 Even in that context it is replaced by WRTL IIrsquos appeal-toshyvote test which now decides what is ldquothe functional equivashylent of express advocacyrdquo 127 SCt at 2667

12

candidaterdquo 127 SCt at 2667 This appeal-to-vote testis the application of the unambiguously-campaignshyrelated principle to electioneering communications beshycause the test mandates (a) no ambiguity (an ad mustbe ldquosusceptible of no reasonable interpretation other thanrdquo id and ldquoin a debatable case the tie is resolved in favor of protecting speechrdquo id at 2669 n7) and (b)a candidate-campaign-related message (ldquoas an appeal to vote for or against a specific candidaterdquo id at 2667)11 12

11 That the appeal-to-vote test is the implementation ofthe unambiguously-campaign-related principle is also clear from WRTL IIrsquos reaffirmation that the dissolving-distinction problem see supra requires speech protection not restricshytion 127 SCt at 2659 2669 WRTL II similarly reaffirmedthat ldquolsquo[t]he Government may not suppress lawful speech asthe means to suppress unlawful speech Protected speechdoes not become unprotected merely because it resembles the latter The Constitution requires the reversersquordquo Id at 2670 (citation omitted) Doing otherwise ldquolsquoturns the First Amendment upside downrsquordquo Id (citation omitted)

12 The Fourth Circuit has recognized that the unambigushyously-campaign-related principle was applied in WRTL II and that only two types of communications are recognizedas meeting this first principle

Pursuant to their power to regulate elections legishyslatures may establish campaign finance laws solong as those laws are addressed to communicationsthat are unambiguously campaign related The Sushypreme Court has identified two categories of commushynication as being unambiguously campaign relatedFirst ldquoexpress advocacyrdquo defined as a communicashytion that uses specific election-related words Secshy

13

WRTL II used its appeal-to-vote test to determinewhich electioneering communications may be subjectedto the Prohibition but since the test determines which electioneering communications are unambiguouslycampaign related it should also determine which elecshytioneering communications may be subjected to theDisclosure Requirements The unambiguously-camshypaign-related principle was articulated and applied in the expenditure-disclosure context in Buckley 424 US at 80

Moreover WRTL IIrsquos analysis turned on the natureof the communication (which has broad ramifications)not the nature of WRTL (which would apply only in theProhibition context) This Court could have ruled forWRTL based on (1) the nature of WRTL (2) the natureof the funds used or (3) the nature of the ads 13 A

ond ldquothe functional equivalent of express advocacyrdquodefined as an ldquoelectioneering communicationrdquo thatldquois susceptible of no reasonable interpretation otherthan as an appeal to vote for or against a specificcandidaterdquo This latter category has the potentialto trammel vital political speech and warrantscareful judicial scrutiny

Leake 525 F3d at 282-83 Only these carefully-defined catshyegories ldquostruck [the proper] balancerdquo and ldquoensured that poshytential speakers would have clear notice as to what commushynications could be regulated ensuring that political expresshysion would not be chilledrdquo Id at 284

13 All three bases were argued The nature of WRTL was argued in the Brief of Family Research Council Free Market Foundation and Home School Legal Defense Association as Amici Curiae in Support of Appellee WRTL II 127 SCt 2652 prepared by the Stanford Constitutional Law Center

14

decision based on the nature of WRTL or of its funds would necessarily have addressed the applicability ofthe corporate-form interest ie whether there could be a prohibition 14 WRTL IIrsquos decision based on the nature of the ads addresses the proper scope of the electionshyeering communication ie are these ads the functionalequivalent of express advocacy which is unambigushyously campaign related WRTL argued that its adswere not the functional equivalent of express advocacy This Court agreed Even when WRTL II addressed the corporate-form interest it did so based on the natureof WRTLrsquos ads not the nature of WRTL ldquoWe hold that the interest recognized in Austin [v Mich State Chamber of Commerce 494 US 652 (1990)] as justifyshying regulation of corporate campaign speech and ex-

which argued that all nonprofits should be exempted fromthe electioneering communication prohibition because thegovernment had no corporate-form interest as applied tononprofits The nature of the funds that WRTL proposed touse for its ads if necessary to obtain judicial relief wasraised in Count II of WRTLrsquos complaint which offered touse funds from a separate bank account containing onlyfunds raised for the purpose from individuals which optionwould have eliminated the corporate-form interest

WRTL II did not provide a narrow test limited to theseoptions or the special context of grassroots lobbying alshythough that is what WRTL proposed The Court should proshyvide similarly comprehensive guidance in the present casein light of the core speech association and self-governanceliberties and principles at issue

14 Only corporations (and unions for parity) are prohibshyited from making electioneering communications based on the corporate-form interest See McConnell 540 US at 205

15

tended in McConnell to the functional equivalent of such speech has no application to issue advocacy of the sort engaged in by WRTLrdquo WRTL II 127 SCt at 2673 (emphasis added) So although WRTL II never conshystrued the electioneering-communication definition (2USC sect 434(f)(3)) its analysis went to the permissible scope of regulable electioneering communications emshyploying the unambiguously-campaign-related princishyple15 Since that first principle is not limited to the Prohibition context and governs the expenditure-disclosure context Buckley 424 US at 80 there is no justification for limiting WRTL IIrsquos appeal-to-vote testfor regulable electioneering communications to theProhibition context All electioneering-communicationregulation must be limited to that permissible scope

Finally it must be noted that what WRTL II called constitutionally-protected ldquopolitical speechrdquo or ldquoissue advocacyrdquo see eg 127 SCt at 2659 does not requirefocus on current legislative or administrative branchissues The appeal-to-vote test contains no requirementthat the communication focus on legislative issues inorder to be protected only that it ldquomay reasonably beinterpreted as something other than as an appeal to vote for or against a specific candidaterdquo id at 2670 WRTL II did observe in applying its appeal-to-vote

15 WRTL II did not construe phrases of the ldquoelectioneershying communicationrdquo definition because McConnell decided that the ldquolsquoelectioneering communicationrsquo [definition] raisesnone of the vagueness concerns that drove our analysis inBuckleyrdquo 540 US at 194 and upheld the provisions fashycially id at 201-02 207 and because there were no vague phrases such as Buckley construed to require express advoshycacy as McConnell noted id at 191 (citations omitted)

16

test to grassroots lobbying that WRTLrsquos communicashytions focused on legislative issues Id at 2667 But making that a requirement for the appeal-to-vote testor for qualifying as protected ldquopolitical speechrdquo conshyfuses a test with the fact-bound application of the test16 To qualify as protected ldquopolitical speechrdquo a communication needs only to be ldquospeech about publicissues more generally or lsquoissue advocacyrsquo that menshytions a candidate for federal officerdquo id at 2659 or to ldquoconvey[] information and educate[]rdquo id at 2667 or to be a ldquodiscussion of issues and candidatesrdquo that falls short of express ldquoadvocacy of election or defeat of candidatesrdquo id at 2669 (quoting Buckley 424 US at 42) Since WRTL II reaffirmed ldquolsquothe fundamental rule of protection under the First Amendment that a speaker has the autonomy to choose the content of his

16 Moreover WRTL IIrsquos discussion applying its test was responding to arguments made by the parties and amicishowing that even under various rejected tests WRTLrsquos adswould be protected In James Bopp Jr amp Richard E Coleson Distinguishing ldquoGenuinerdquo from ldquoShamrdquo in Grass-roots Lobbying Protecting the Right to Petition During Elecshytions 29 Camp L Rev 353 (2007) (published contemporashyneously with WRTL II briefing) present counsel argued asthey did in WRTLrsquos briefing before this Court for a test specific to grassroots lobbying That test did require focuson a legislative or executive branch issue excluded mentionof an election candidacy a candidatersquos character and so on See id at 385-89 (ldquoPBA Ad Testrdquo) See also id at 406-12 (setting out other proposed tests) But WRTL II rejected alltests and criteria but one whether an ad ldquois susceptible ofno reasonable interpretation other than as an appeal to votefor or against a specific candidaterdquo 127 SCt at 2667

17

own messagersquordquo id at 2671 (citation omitted) no reshystriction may be imposed on what constitutes ordinaryldquopolitical speechrdquo The speaker is free to engage in speech without restriction unless there is a constitushytionally-cognizable reason and means to restrict itwhich there is not if the speech is not unambiguouslycampaign related under this Courtrsquos tests applyingthat requirement In effect then ordinary ldquopolitical speechrdquo or ldquoissue advocacyrdquo is defined by the absence of either express advocacy or WRTL IIrsquos ldquoappeal to voterdquo not the presence of some topic

In sum all campaign-finance regulation is subjectto the unambiguously-campaign-related principle and WRTL IIrsquos appeal-to-vote test is the application of thatprinciple in the electioneering communication contextso any electioneering communication protected by theappeal-to-vote test may neither be prohibited nor otherwise regulated It is protected as ordinary ldquopolitishycal speechrdquo or ldquoissue advocacyrdquo Since Citizens Unitedrsquosads are protected by the appeal-to-vote test as theFEC concedes they are not subject to the Disclosure Requirements Hillary The Movie is also protectedfrom all regulation by the appeal-to-vote test becauseit contains no clear plea for action urging a vote

II WRTL IIrsquos Appeal-to-Vote Test Requires a Clear Plea for Action Urging a Vote17

WRTL IIrsquos appeal-to-vote test permits regulation ofan electioneering-communication ad only if it ldquois susshyceptible of no reasonable interpretation other than as

17 Part II addresses the third of the Jurisdictional Stateshymentrsquos Questions Presented Citizens United also makes the present argument See Brief for Appellant at 14 36-37

18

an appeal to vote for or against a specific candidaterdquo127 SCt at 2667 (emphasis added) For an ad to beunmistakably subject to interpretation ldquoas an appeal tovoterdquo it must necessarily contain a clear plea for actionurging a vote

Since it must be assumed that the words of the appeal-to-vote test were chosen carefully it is decisivethat the test is not whether an ad promotes attackssupports or opposes a candidatemdashor whether it focuseson or criticizes a candidatemdashbut whether the ad must be interpreted ldquoas an appeal to voterdquo An appeal is ldquo[a]nearnest or urgent request entreaty or supplicationrdquo The American Heritage Dictionary of the English Lanshyguage (4th ed 2000) So to constitute an appeal to vote an ad must clearly ask or command the hearer to dosome action And the ad cannot be interpreted as an appeal to vote unless the action solicited has to do with voting for or against a candidate

This necessary focus on an appeal to vote is derived from the precedents The dissolving-distinction probshylem that Buckley and WRTL II recognized as requiring a bright speech-protective line see supra at 7-8 12 n11 is about how to distinguish (a) ldquodiscussion of issues and candidatesrdquo from ldquoadvocacy of election or deshyfeat of candidatesrdquo Buckley 424 US at 42 (emphasisadded) (b) ldquodiscussion laudation [and] general advoshycacyrdquo from ldquosolicitationrdquo id at 43 and (c) ldquodiscussion of issues and candidates from more pointed exhorshytations to vote for particular personsrdquo MCFL 479 US at 249 As the italicized terms indicate what had to be isolated was express advocacysolicitationexhortationfor a vote for or against a candidate Candidates andissues could be freely discussed together and candishy

19

dates could be focused on and lauded or criticized so long as there was no appeal to vote So when WRTL II required that an electioneering communication couldonly be regulated if it must be interpreted ldquoas an appeal to voterdquo WRTL II 127 SCt at 2667 2670 WRTL II was following precedent and recognizing thatonly an unmistakable appeal to vote would be unamshybiguously campaign related

WRTL II expressly held that thisdissolving-distincshytion problem may not be used to quash the very intershymingled discussion of issues and candidates that is at issue in Hillary ldquoDiscussion of issues cannot be supshypressed simply because the issues may also be pertinent in an electionrdquo Id at 2669 And it elaborated the point that the dissolving-distinction is a reason toprotect not restrict free speech ldquolsquoThe Governmentmay not suppress lawful speech as the means to supshypress unlawful speech Protected speech does notbecome unprotected merely because it resembles the latter The Constitution requires the reversersquordquo Id at 2670 (citation omitted)

The fact that the appeal-to-vote test requires a clearplea for action urging a vote is also evident from the manner in which the test was to be applied WRTL II required that the search for this unmistakable ldquoappeal to voterdquo must focus on the language of the communicashytion itself ie the test ldquomust be objective focusing on the substance of the communication rather than amorshyphous considerations of intent and effectrdquo Id at 2666 (emphasis added) This focus on the actual words of the communication is also required by WRTL IIrsquos rejection of reliance on ldquocontextual factorsrdquo id at 2669 This objective determination focused on the actual words

20

used is only possible where normal rules of grammarare applied to determine if there is in the words useda clear plea for action that urges a vote for or againsta candidate18

This understanding of the appeal-to-vote test doesnot make the test a ldquomagic wordsrdquo test It is instructiveto compare and contrast the appeal-to-vote test with the Ninth Circuitrsquos attempt in FEC v Furgatch 807 F2d 857 (9th Cir 1987) to frame an express-advocacytest that went beyond the magic words Of course McConnell made it clear that express advocacy reshyquires ldquomagic wordsrdquo so no other express-advocacy test is permissible and Furgatch is a dead letter for that purpose 19 But Furgatch represents an effort to permit government regulation beyond magic words WRTL II does not go beyond Furgatch and differs at several points Furgatch dealt with a newspaper ad thatconcluded with these words concerning President andcandidate Jimmy Carter ldquoIt is an attempt to hide hisown record or lack of it If he succeeds the country willbe burdened with four more years of incoherencies

18 This analysis is supported by WRTL IIrsquos repeated reshyquirement that where there is any doubt as to whether the necessary unmistakable ldquoappeal to voterdquo is present in the words of the communication then there is not an ldquoappeal tovoterdquo because all doubts and debatable words are to be reshysolved in favor of the speaker See id at 2667 2669 amp n7 2674 The elimination of borderline language requires thatads contain a clear plea for action that urges a vote for oragainst a candidate in order to be subject to regulation

19 See infra at n9 (express advocacy requires ldquomagic wordsrdquo)

21

ineptness and illusion as he leaves a legacy of low-level campaigning DONrsquoT LET HIM DO ITrdquo Id at 858 The Ninth Circuit adopted the following express-advocacy test

We conclude that speech need not include any of the words listed in Buckley to be express advoshycacy but it must when read as a whole andwith limited reference to external events be susceptible of no other reasonable interpretation but as an exhortation to vote for or against aspecific candidate This standard can be brokeninto three main components First even if it isnot presented in the clearest most explicitlanguage speech is ldquoexpressrdquo for present purshyposes if its message is unmistakable and unambiguous suggestive of only one plausiblemeaning Second speech may only be termed ldquoadvocacyrdquo if it presents a clear plea for action and thus speech that is merely informative isnot covered by the Act Finally it must be clearwhat action is advocated Speech cannot beldquoexpress advocacy of the election or defeat of aclearly identified candidaterdquo when reasonableminds could differ as to whether it encourages avote for or against a candidate or encourages thereader to take some other kind of action

Id at 863-64 (emphasis added) The Furgatch test mayfairly be called the exhortation-to-vote test becausethat is precisely what it requiresmdashalbeit without anyparticular magic words And the test made clear that no communication could be considered ldquoas an exhortashytion to voterdquo absent a clear plea for action that involvedvoting

22

In its appeal-to-vote test WRTL II rejected any relishyance on ldquoexternal eventsrdquo requiring that the objectivewords of the communication itself must be the focus 127 SCt at 2666 Of course an electioneering comshymunication by definition is broadcast near an electionidentifies a candidate and targets the candidatersquos conshystituents so there is a built-in relevant context Like WRTL II Furgatch mandated that the message mustbe ldquounambiguousrdquo and that all doubts are resolved in favor of the speaker And just as WRTL II requires an unmistakable ldquoappeal to voterdquo Furgatch mandated ldquoan exhortation to voterdquo which must be a ldquoclear plea for acshytionrdquo that ldquoencourages a voterdquo 20 Furgatch decided that ldquoDonrsquot let him do itrdquo was just such a clear plea for acshytion that constituted an unambiguous exhortation to vote without saying ldquovote againstrdquo WRTL II was not endorsing a test going beyond Furgatchrsquos now-rejectedexpress-advocacy test so the ldquoappeal to voterdquo requireshyment of WRTL IIrsquos test must be taken at least as serishyously as the Ninth Circuit took its ldquoexhortation to voterdquoor ldquoclear plea for actionrdquo requirement Consequently the WRTL II test requires some clear plea for actionurging a vote for or against a candidate for an ad to be unmistakably interpreted as an appeal to vote

20 Even before McConnell and WRTL II effectively overshyruled Furgatchrsquos express-advocacy test for ldquoindependentexpendituresrdquo the Ninth Circuit made clear that contextwas subordinate to the actual words and that some express words of advocacy were required under the Furgatch test ldquoa close reading of Furgatch indicates that we presumed express advocacy must contain some explicit words of advoshycacyrdquo See California Pro-Life Council v Getman 328 F3d 1088 1098 (9th Cir 2003)

23

Hillary contained no clear plea for action urging avote for or against then-candidate Clinton In sumshymary-judgment briefing the FEC made no attempt to identify any such plea for action See Doc56 at 44-46 (PDF pagination) Instead the FEC argued a flawed version of WRTL IIrsquos appeal-to-vote test First it argued that Hillary ldquomentions an election and candidashycyrdquo Id at 44 Second it argued that Hillary ldquotakes a position on a candidatersquos character qualifications or fitness for officerdquo Id Third the FEC argued that ldquothe movie fails to qualify for an exemption under WRTL because it lsquodoes not focus on legislative issues or otherwise constitute issue advocacyrsquordquo Id at 45 From these criteria the FEC concluded that ldquobecause Hillary is nothing but an extensive critique of SenatorClintonrsquos lsquocharacter qualifications and fitness forofficersquo and lacks indicia of genuine issue advocacy thefilm is susceptible of no reasonable interpretation other than as an appeal to vote against herrdquo Id at 46 So the FEC concluded ldquo[i]t is the functional equishyvalent of express advocacy rdquo Id

This argument is flawed As to the first assertionthe appeal-to-vote test does not turn on mentioning anelection or candidacy The FEC attempts to substitute an application of the testmdashin which WRTL II addressshyed proposed (but rejected) tests that did turn on the presence or absence of such a criterion see infra at 16 n16mdashfor the test itself Such prestidigitation is impermissible See infra at 15-17

As to the second assertion the argument thatcriticism constitutes the functional equivalent of express advocacy was argued and rejected in WRTL

24

II21 And the FEC has already settled two cases post-WRTL II about electioneering communications that setout candidatesrsquo positions on an issue and praised orcriticized them for that position which was a concesshysion that non-criticism is not part of the appeal-to-vote test See Doc 52 at 16-17 43-44 Moreover the FEC has conceded that the ads at issue in this case meet the appeal-to-vote test but the Questions Ad is clearly crishytical of Senator Clinton see Jurisdictional Statement at 8 n3 so the FECrsquos argument lacks credibility

As to the third assertion protected ordinary ldquopolitishycal speechrdquo or ldquoissue advocacyrdquo does not require focus on a particular issue See infra at 15-17

What the FEC was unable to do and studiouslyevaded was to point to any clear plea for action urging a vote for or against Senator Clinton Hillary did not even contain something like ldquoDonrsquot let her do itrdquo So Hillary was protected from both the Prohibition andthe Disclosure Requirements by the appeal-to-vote test because it was not unambiguously related to the camshypaign of Senator Clinton

21 See Brief for Appellee WRTL II 127 SCt 2652 (quotshying and citing FEC and Intervenorsrsquo arguments that WRTLrsquos ads were sham ads for criticizing candidate) In the present case this issue was briefed and the WRTL II brief is quoted in Doc 52 (summary judgment memo) at 44

25

Conclusion

The judgment of the district court should be reshyversed

Respectfully submitted



1 South 6th Street Terre Haute IN 47807-3510 812232-2434


Statement of Interest

Summary of Argument

Argument

I Campaign-Finance Laws May Only Regulate Unambiguously-Campaign-Related Activity

II WRTL IIrsquos Appeal-to-Vote Test Requires a Clear Plea for Action Urging a Vote

Conclusion

Table of Contents

Table of Authorities (ii)

Statement of Interest 1

Summary of Argument 2

Argument 3

I Campaign-Finance Laws May Only RegulateUnambiguously-Campaign-Related Activity 3

II WRTL IIrsquos Appeal-to-Vote Test Requires aClear Plea for Action Urging a Vote 17

Conclusion 25

(i)


Cases












(ii)



2 USC sect 431(17) 9

2 USC sect 434(f)(3) 15



US Const amend I 3


Other Authorities



(iii)








2



Summary of Argument




3


Argument




4






5





6





7




8





9





10





11





12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion


Cases












(ii)



2 USC sect 431(17) 9

2 USC sect 434(f)(3) 15



US Const amend I 3


Other Authorities



(iii)








2



Summary of Argument




3


Argument




4






5





6





7




8





9





10





11





12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion



2 USC sect 431(17) 9

2 USC sect 434(f)(3) 15



US Const amend I 3


Other Authorities



(iii)








2



Summary of Argument




3


Argument




4






5





6





7




8





9





10





11





12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion








2



Summary of Argument




3


Argument




4






5





6





7




8





9





10





11





12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

3


Argument




4






5





6





7




8





9





10





11





12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

4






5





6





7




8





9





10





11





12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

5





6





7




8





9





10





11





12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

6





7




8





9





10





11





12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

7




8





9





10





11





12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

8





9





10





11





12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

9





10





11





12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

10





11





12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

11





12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

12





13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

13






14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

14





15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

15




16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

16



17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

17






18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

18




19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

19




20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

20





21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

21




22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

22



23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

23




24





25

Conclusion








Summary of Argument

Argument



Conclusion

24





25

Conclusion








Summary of Argument

Argument



Conclusion

25

Conclusion








Summary of Argument

Argument



Conclusion

supreme court of the united states - federal election commission

Documents