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Citizens United v. Federal Election Commission

January 15, 2008

CITIZENS UNITED, PLAINTIFF,
v.
FEDERAL ELECTION COMMISSION, DEFENDANT.



MEMORANDUM OPINION

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.

I.

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 [30] 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 [30] 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).

II.

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).

A.

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 ...


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