Constitutional Law – POL 104Citizens United v. Federal Election Commission, No. 08-205FACTS AND ISSUE1FactsIn modern national election campaigns, for President and for members of Congress, increasingly sophisticated modes of communication seek to capture the voting public’s attention, and to shapeelection outcomes. In various media, including films, the “attack ad” is one of the most ubiquitous kinds of message that campaign organizations or private advocacy groups put out. Congress made a major effort to put some limits on such so-called “electioneering communications” — including attack ads — when, in 2002, it passed the Bipartisan Campaign Reform Act. Since then, the Supreme Court has spent a good deal of time and energy sorting out constitutional issues surrounding one of the Act’s most controversial sections — Section 203, the“electioneering communications” section. The Court in the 2003 decision in McConnell v. FEC upheld that provision as written — that is, against “facial” constitutional challenges targeting its very wording. More recently, the Court has returned with some frequency to resolving challengesto Section 203 as it has been applied in the context of specific political messages. It returns to that exploration in Citizens United v. Federal Election Commission. Section 203 — a modern echo of federal regulation that goes back to 1907 — is aimed at corporations (including non-profit advocacy organizations using the corporate form) and at labor unions. It does not restrict corporate or union expenditures used to finance campaign communications, when those are paid for out of a PAC — a political action committee. But, if a corporation or union wishes to spend its own treasury funds, Section 203 bars the use of those funds to finance communications that refer to a clearly identified candidate for the presidency or for Congress, on radio, television, cable TV, or satellite broadcast, within 30 days before a primary election or nominating convention, or within 60 days before a general election. Along with Section 203, Congress in the 2002 Act added two other provisions that seek to bring out into the open the sources of financing for such communications. A disclosure requirement (Section 201) provides that any corporation or union that spends more than $10,000 in a year to produce or air such communications must file a report with the FEC revealing the names and addresses of anyone who contributed $1,000 or more for the communication’s preparation or distribution. A disclaimer requirement (Section 311) provides that, if the communication is not authorized by a candidate or a political committee, the broadcast must say who is responsible for the content, plus the name and address of the group that has prepared the communication. The disclosure and disclaimer provisions, like Section 203 itself, were upheld by the Court in 2003 against facial challenges. Citizens United, a Virginia-based conservative advocacy group (organized as a non-profit corporation), has been centrally involved in tests of the constitutionality of the federal controls on “electioneering caommunications.” Since December 2007, it has been engaged in a court 1 This statement of the facts and issue have been revised from an external source, the citation for which is intentionally omitted.1battle with the FEC over Sections 203, 201 and 311. At the center of the fight is a Citizens United film about Sen. Hillary Rodham Clinton, a Democratic presidential candidate, titled “Hillary: The Movie.” The feature-length movie has been described by Citizens United in court papers this way: it “includes interviews with numerous individuals and many scenes of Senator Clinton at public appearances. It is about 90 minutes in length. It does not expressly advocate Senator Clinton’s election or defeat, but it discusses her Senate record, her White House record during President Bill Clinton’s presidency, and her presidential bid.” The film actually has been shown in movie theaters, and has circulated at retail in a DVD format.Citizens United prepared three TV ads to promote the movie. The group planned to broadcast one of the ads on Fox News cable network, and on other TV networks. It planned to air two of the ads on other networks, but not on Fox. It planned to do so in what it called a “rollout advertising blitz” timed to coincide with public release of the movie in January of last year. It also had a plan to market the movie via video-on-demand on cable TV. The ads, however, appeared to come under the federal law’s definition as “electioneering communications,” because the group was planning to air them while the presidential primary election season was unfolding. So Citizens United went to court, seeking to bar the FEC from banning the broadcast of the movie and of the ads, and from enforcing the disclosure and disclaimer rules. Among its other arguments, it contended that the movie was not an electioneering communication within the meaning of Section 203 — it did not advocate a vote for or against Sen. Clinton — and that, if it was, the Section was unconstitutional because it interfered with political speech. A U.S. District Court refused to issue a preliminary order protecting the movie and the ads from regulation by FEC. Citizens United tried to take the issue to the Supreme Court, but the Justices summarily dismissed its appeal for lack of jurisdiction on March 24 of last year (docket 07-953). (Justice Stephen G. Breyer noted that he would have upheld the District Court decision.) The case then returned to District Court, leading to a final ruling last July on the merits, finding the movie to be covered by Section 203. That court said that the movie could not be interpreted as anything other than a message that Sen. Clinton was unfit for office, that the country would bea dangerous place if she were elected, and that viewers of the movie should vote against her. While the promotional ads could not be barred, the District Court found, Citizens United would have to obey the disclosure and disclaimer requirements for those ads. (Because both of the District Court rulings were by three-judge courts, appeals from those decisions went directly to the Supreme Court.) Citizens United then returned to the Supreme Court. After hearing argument, the Court ordered re-argument, to focus on the constitutionality of limiting corporations’ independent spending