UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
January 15, 2008
CITIZENS UNITED, PLAINTIFF,
FEDERAL ELECTION COMMISSION, DEFENDANT.
For the reasons that follow we deny Citizens United's ("Citizens") motions for a preliminary injunction to enjoin the Federal Election Commission ("FEC") from enforcing provisions of the Bipartisan Campaign Reform Act of 2002 ("BCRA"),*fn1 with respect to Citizens' advertisements for a movie-Hillary: The Movie-and its distribution of The Movie through cable TV video on-demand.
Citizens United is a nonprofit membership corporation, tax-exempt under Internal Revenue Code § 501(c)(4). (Am. Compl. ¶ 5.) Citizens produced a movie titled Hillary: The Movie. (Id. Ex. 2; Notice  Regarding Joint Stip.) The Movie focuses on 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." (Am. Compl. ¶ 14.) Citizens plans to distribute The Movie in January or February 2008 through theaters, video on-demand ("VOD") broadcasts, and DVD sales. (Id.) Citizens notified the court on January 7, 2008, that it had released The Movie for "public sale and exhibition." (Notice  Regarding Joint Stip.); see http://www.hillarythemovie.com (last visited Jan. 11, 2008) (offering The Movie on DVD for $23.95 and promoting screenings of the film in seven movie theaters across the country). The Movie's release date coincides with the dates when many states will hold primary elections or party caucuses. Senator Clinton is a presidential candidate in those states. (Am. Compl. ¶ 17.) Citizens intends to fund at least three television advertisements-two 10-second advertisements, "Wait"*fn2 and "Pants,"*fn3 and one 30-second advertisement, "Questions"*fn4 -to coincide with the release of its movie. (Id. Ex. 1.) The advertisements promote The Movie and direct viewers to The Movie's website for more information about the film and how to see or purchase it. (Id. ¶ 19.) If Senator Clinton becomes the Democratic presidential nominee, Citizens plans to broadcast the three advertisements and possibly other advertisements within 30 days before the Democratic National Committee Convention and within 60 days before the November general election-both periods are within BCRA's definition of an electioneering communication. (Id. ¶ 20); 2 U.S.C. § 434(f)(3)(A)(i)(II)(bb). Citizens has elected not to broadcast its advertisements pending resolution of this litigation. (Am. Compl. ¶ 26.) It has entered into negotiations to broadcast The Movie through the "Political Movies" component of a new nationwide VOD channel, "Elections '08," but has decided to forego the opportunity pending resolution of the current litigation because, according to Citizens, the broadcast would be banned under BCRA and, even if this were not so, the broadcast would require Citizens to disclose certain information and make certain statements as described below. (Id. ¶ 28--30.)
BCRA amended the Federal Election Campaign Act of 1971 ("FECA").*fn5 BCRA, Pub. L. No. 107--155, 116 Stat. 81 (2002) (codified at 2 U.S.C. § 431 et seq.). Passed in 2002, it represented "the most recent federal enactment designed to purge national politics of what was conceived to be the pernicious influence of 'big money' campaign contributions." McConnell v. FEC, 540 U.S. 93, 115 (2003) (internal citation omitted). BCRA introduced a new system for regulating what it termed "electioneering communications." Under BCRA § 201, an "electioneering communication" is: any broadcast, cable, or satellite communication which-
(I) refers to a clearly identified candidate for Federal office;
(II) is made within-
(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or
(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate . . .
2 U.S.C. § 434(f)(3)(A). For presidential candidates, the communication must also be capable of being received by 50,000 or more persons. See 11 C.F.R. § 100.29(b)(3)(ii). Citizens recognizes that under this statutory definition, both its advertisements and a VOD*fn6 broadcast of The Movie would be electioneering communications. (Am. Compl. ¶¶ 17, 29.) Electioneering communications are subject to a host of restrictions imposed by BCRA. Three are relevant here: § 203, § 201, and § 311. Section 203 prevents corporations and labor unions from funding electioneering communications out of their general treasury funds, unless the communication is made to its stockholders or members, to get out the vote, or to solicit donations for a segregated corporate fund for political purposes. 2 U.S.C. § 441b(b)(2). This provision does not bar electioneering communications paid for out of a segregated fund that receives donations only from stockholders, executives and their families. 2 U.S.C. §§ 441b(b)(2)(C), (b)(4)(A).*fn7 Any electioneering communication that is not prohibited is subject to the disclosure requirements of § 201 and the disclaimer requirements of § 311, which are set out in part II.B.
Citizens' complaint, filed on December 13, 2007,*fn8 contains two major claims: (1) that § 203's prohibition of corporate disbursements for electioneering communications violates the First Amendment on its face and as applied to The Movie and to the 30-second advertisement "Questions"*fn9 ; and (2) that BCRA § 201 requiring disclosure and § 311 requiring disclaimers are unconstitutional as applied to Citizens' three advertisements (and to The Movie, if Citizens broadcasts it in a manner that does not violate § 203).
The court will not issue a preliminary injunction unless the movant shows that it has "1) a substantial likelihood of success on the merits, 2) that it would suffer irreparable injury if the injunction is not granted, 3) that an injunction would not substantially injure other interested parties, and 4) that the public interest would be furthered by the injunction." Omar v. Harvey, 479 F.3d 1, 18 (D.C. Cir. 2007) (citing CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)). Granting injunctive relief is an "extraordinary and drastic remedy," and it is the movant's obligation to justify, "by a clear showing," the court's use of such a measure. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
We will analyze first Citizens' likelihood of prevailing on the merits of its claims regarding The Movie. In McConnell, the Supreme Court upheld § 203 on its face, rejecting claims that the financing of "electioneering communications" constituting express advocacy or its functional equivalent were within the protection of the First Amendment. 540 U.S. at 203--09. McConnell did not, however, "purport to resolve future as-applied challenges." FEC v. Wis. Right to Life, Inc., 127 S.Ct. 2652, 2661 (2007) (citation omitted) ("WRTL"). The Chief Justice's opinion in WRTL stated that an advertisement could not be considered the functional equivalent of express advocacy unless it "is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."*fn10 Id. at 2667. To promote the objectivity of this analysis, courts are to disregard contextual evidence of the corporation's intent in running an advertisement.*fn11 See id. at 2668.
Citizens wants us to enjoin the operation of BCRA § 203 as a facially unconstitutional burden on the First Amendment right to freedom of speech. The theory is that with respect to § 203, WRTL narrowed McConnell to such an extent that it "left the door open to facial invalidation based on the sort of circumstances that have now arisen." (2d Mot. for Prelim. Inj. Mem. at 2). For Citizens to prevail on this claim, we would have to overrule McConnell, which is to say that Citizens has no chance of prevailing. Only the Supreme Court may overrule its decisions. The lower courts are bound to follow them. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989); Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983); Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam).
With respect to Citizens's as-applied claims regarding The Movie, the first question under Chief Justice Roberts' WRTL opinion-and as it turns out, the last question-is whether the film is express advocacy or its functional equivalent. If it is, McConnell makes it likely that Citizens would not win on the merits of its claim that the First Amendment permits it to broadcast the movie within the electioneering communications period as currently funded. Citizens contends that The Movie is issue speech and, as it stated in oral argument, that issue speech is any speech that does not expressly say how a viewer should vote.The trouble is that the controlling opinion in WRTL stands for no such thing. Instead, if the speech cannot be interpreted as anything other than an appeal to vote for or against a candidate, it will not be considered genuine issue speech even if it does not expressly advocate the candidate's election or defeat. WRTL, 127 S.Ct. at 2667.
The Movie does not focus on legislative issues. See id.; 11 C.F.R. § 114.15(b). The Movie references the election and Senator Clinton's candidacy, and it takes a position on her character, qualifications, and fitness for office. See id.; 11 C.F.R. § 114.15(b). Dick Morris, one political commentator featured in The Movie, has described the film as really "giv[ing] people the flavor and an understanding of why she should not be President." Dick Morris, Hillary's Threat, Address (Mar. 2007) (available at www.citizensunited.org/blog/?entryid=4563815). After viewing The Movie and examining the 73-page script at length, the court finds Mr. Morris's description to be accurate. The Movie 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.*fn12
The Movie is thus the functional equivalent of express advocacy. See WRTL,127 S.Ct. at 2667 (setting out the "functional equivalent" standard). As such, it falls within the holding of McConnell sustaining, as against the First Amendment, § 203 insofar as it bars corporations from funding electioneering communications that constitute the functional equivalent of express advocacy. There is no substantial likelihood that Citizens will prevail on its as-applied challenge with respect to The Movie.
Citizens' proposed advertisements present a different picture. The FEC agrees that Citizens may broadcast the advertisements because they fall within the safe harbor of the FEC's prohibition regulations implementing WRTL. They did not advocate Senator Clinton's election or defeat; instead, they proposed a commercial transaction-buy the DVD of The Movie. See WRTL, 127 S.Ct. at 2667; 11 C.F.R. § 114.15(b). Although Citizens may therefore run the advertisements, it complains that requirements of § 201 and § 311 of BCRA, 2 U.S.C. §§ 434(f)(2), 441d, impose on it burdens that violate the First Amendment.
Section 201 is a disclosure provision requiring that any corporation spending more than $10,000 in a calendar year to produce or air electioneering communications must file a report with the FEC that includes-among other things-the names and addresses of anyone who contributed $1,000 or more in aggregate to the corporation for the purpose of furthering electioneering communications. §§ 434(f)(1), (2)(F); 11 C.F.R. § 104.20(c)(9). Section 311 is a disclaimer provision. 2 U.S.C. § 441d. For advertisements not authorized by a candidate or her political committee, the statement "____ is responsible for the content of this advertising" must be spoken during the advertisement and must appear in text on-screen for at least four seconds during the advertisement. § 441d(d)(2). In addition, such advertisements are required to include the name, address, and phone number or web address of the organization behind the advertisement. § 441d(a)(3).
Citizens thinks that § 201 and § 311 are unconstitutional because its advertisements do not constitute express advocacy or the functional equivalent of express advocacy. The argument is that the Supreme Court's WRTL decision narrowed the constitutionally permissible scope of what could be considered an electioneering communication. Under Citizens' reading of WRTL, anything that is not express advocacy or not "susceptible of [a] reasonable interpretation other than as an appeal to vote for or against a specific candidate" cannot be constitutionally regulated by Congress under BCRA. See 127 S.Ct. at 2667.
We do not believe WRTL went so far. The only issue in the case was whether speech that did not constitute the functional equivalent of express advocacy could be banned during the relevant pre-election period. Although McConnell upheld the § 203 prohibition on its face, the Court left open the issue that was presented in WRTL, reserving it for decision on an as-applied basis. In contrast, when the McConnell Court sustained the disclosure provision of § 201 and the disclaimer provision of § 311, it did so for the "entire range of electioneering communications" set forth in the statute. McConnell, 540 U.S.at 196; see also id. at 230--31 (discussing § 311). Citizens's advertisements obviously are within that range.
Although Citizens styles its argument as an as-applied challenge, it offers only one distinction between its advertisements and the mine-run of speech that constitutes electioneering communication under BCRA. The distinction, so goes the argument, is that Citizens' speech is constitutionally protected, as WRTL holds. Whether the Supreme Court will ultimately adopt that line as a ground for holding the disclosure and disclaimer provisions unconstitutional is not for us to say.*fn13 We know that the Supreme Court has not adopted that line as a ground for holding the disclosure and disclaimer provisions unconstitutional, and it is not for us to do so today. And we know as well that in the past the Supreme Court has written approvingly of disclosure provisions triggered by political speech even though the speech itself was constitutionally protected under the First Amendment. See FEC v. Mass. Citizens for Life, 479 U.S. 238, 259--62 (1986) (striking down a prohibition, and noting that the disclosure provisions will apply to the newly permitted speech); Citizens Against Rent Control/Coal. for Fair Housing v. City of Berkeley, 454 U.S. 290, 297--98 (1981) (same); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 791--92 & n.32 (1978) (discussing how disclosure provisions can help offset the coercive aspects of corporate speech).
The McConnell Court did suggest one circumstance in which the requirement to disclose donors might be unconstitutional as-applied-if disclosure would lead to reprisals and thus "impose an unconstitutional burden on the freedom to associate in support of a particular cause." 540 U.S.at 198. To this, the Court added that the plaintiff must show a "reasonable probability that the compelled disclosure of . . . contributors' names will subject them to threats, harassment, or reprisals." Id. (quoting Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 100 (1982)). Citizens' memorandum in support of its motion states that there may be reprisals, but it has presented no evidence to back up this bald assertion. In that respect, Citizens is thus in a similar position as the parties in McConnell who made the same assertion but presented no specific evidentiary support. See 540 U.S. at 199.
We therefore hold that Citizens has not established the requisite probability of prevailing on the merits of its arguments against the disclosure and disclaimer provisions-§ 201 and § 311, respectively.
Citizens tells us that without a preliminary injunction it will not be able to broadcast The Movie, that it will have to disclose the identity of its contributors to the FEC if it runs the advertisements, and that some portion of the time it purchased for the advertisements would be consumed by the disclaimers BCRA requires. If Citizens had made more of a showing that it had a chance of prevailing in this court on the merits, these kinds of harms might have warranted preliminary relief. But in the face of McConnell's ruling that the disclosure and disclaimer provisions are constitutional and that the restriction on corporate speech advocating the defeat of a candidate does not violate the First Amendment, Citizens is unable to raise "questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation." Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953); see also FTC v. H.J. Heinz Co., 246 F.3d 708, 714--15 (D.C. Cir. 2001), Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986), Washington Metro. Area Transit Comm. v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977).
As to the remaining factors governing preliminary relief, we cannot say that enjoining enforcement of the BCRA provisions at issue would serve the public interest in view of the Supreme Court's determination that the provisions assist the public in making informed decisions, limit the coercive effect of corporate speech, and assist the FEC in enforcing contribution limits. See McConnell, 540 U.S. at 196, 205, 231.
Citizens' motion for preliminary injunction with respect to the § 203 Prohibition as applied to "Questions" shall be DENIED as moot as set forth in footnote 9 and shall be DENIED with respect to all other claims. A separate order shall issue this date.
Signed by United States Circuit Judge A. Raymond Randolph, and United States District Judges Royce C. Lamberth and Richard W. Roberts, on January 15, 2008.