Federal Election Commission

Citizens United v. Federal Election Commission

Issues

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." See Citizens United. Prior to the 2008 primary elections, Citizens produced a documentary titled 

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McCutcheon v. Federal Election Commission

Issues

Do aggregate limits on individual political contributions substantially burden the First Amendment right to freedom of association?

The Federal Election Commission (“FEC”) regulates contributions to political campaigns through base limits, the amount one person can give to a single candidate, and aggregate limits, the total amount an individual can give to any number of candidates or political committees. Shaun McCutcheon, a contributor to various candidates and organizations, sued the FEC in district court alleging that aggregate limits infringe his First Amendment rights to freedom of expression and association. He argues that aggregate limits are no longer necessary to satisfy the legitimate government purpose of preventing circumvention of base limits. He alleges that aggregate limits are overbroad and that the only purpose they serve is to prevent affluent donors from associating themselves with candidates. The FEC argues that aggregate limits prevent donors from circumventing base limits, reduce the appearance of corruption, and prevent any given donor from exercising impermissible influence over a politician. In September 2012, the district court upheld the aggregate limits, finding the limits constitutionally permissible. The Supreme Court will determine the permissible constitutional balance between the exercise of First Amendment rights through political contributions and the government’s interest in regulating campaign finance law. This implicates the boundaries of the First Amendment, and raises questions about campaign finance, the role of individual donors in politics, and the freedom of association.

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Questions as Framed for the Court by the Parties

Federal law imposes two types of limits on individual political contributions. Base limits restrict the amount an individual may contribute to a candidate committee ($2,500 per election), a national-party committee ($30,800 per calendar year), a state, local, and district party committee ($10,000 per calendar year (combined limit)), and a political-action committee ("PAC") ($5,000 per calendar year). 2 U.S.C. 441a(a)(1) (current limits provided). Biennial limits restrict the aggregate amount an individual may contribute biennially as follows: $46,200 to candidate committees; $70,800 to all other committees, of which no more than $46,200 may go to non-national-party committees (e.g., state parties and PACs). 2 U.S.C. 441a(a)(3) (current limits provided) (see Appendix at 20a (text of statute)). Appellants present five questions:

  1. Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national-party committees.
  2. Whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest.
  3. Whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially.
  4. Whether the biennial limit on contributions to candidate committees, 2 U.S. C. 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.
  5. Whether the biennial limit on contributions to candidate committees, 2 U.S.C. 441a(a)(3)(A), is unconstitutionally too low.

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Facts

Congress enacted the Federal Election Campaign Act (“FECA”) of 1971 to increase accountability and fairness in political campaigns. See McCutcheon v. FEC, 893 F.Supp 2d 133, 134–35 (D.D.C.

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