CITIZENS UNITED v.

FEDERAL ELECTION COMMISSION

FIVE YEARS OF FREEDOM

BY

MICHAEL BOOS
GENERAL COUNSEL
CHRIS BERG
DEPUTY GENERAL COUNSEL
CITIZENS UNITED

Dear Citizens United Supporter,

In 2007 all eyes were on Hillary Clinton and her presumptive road to the White House.
She appeared to be a juggernaut that could not be toppled. In the eyes of the mainstream press
she could do no wrong. I knew better.
I had spent the 1990s investigating dozens of Clinton scandals in both the United States
Senate and House of Representatives.
This was a story that needed to be told.
I had seen liberals turn to Hollywood to advance their agendas. They effectively
weaponized the film industry. Liberal Michael Moore was successful in bringing his extremist
ideology to movie theaters across the country with his film Fahrenheit 9/11. I knew that Citizens
United could be just as effective using film to spread a conservative message.
Our plan was to produce, distribute, and promote a film exposing Hillary Clinton and the
past that the Clinton team and the liberal media tried so hard to cover up. When I took the idea
to my lawyers I learned that if Citizens United released this film we could be subject to civil
fines, or worse, criminal penalties, including jail time prison for daring to speak out against the
Clinton machine.
We could not stay silent. We sued the Federal Election Commission. It took years for
our lawsuit to work its way through the legal system, but in the end, what started as our attempt
to stand up for the ideas and principles that you and I believe in, resulted in restoring First
Amendment protections to political speech.
Yours in Freedom,

David N. Bossie
President
Citizens United

EXECUTIVE SUMMARY
Citizens United did not set out to change the campaign finance landscape, we set out to
tell a story. Rather than publish a book or a pamphlet our chosen medium was film. In choosing
to produce and distribute a film we set in motion a series of events that has toppled overbroad
campaign finance laws and restored First Amendment protections to political speech.
This research paper explores the campaign finance regime that prohibited Citizens
Uniteds speech, the legal battle which led to the landmark Supreme Court decision in Citizens
United v. Federal Election Commission, and the impact that the case has had on subsequent
elections and speakers.
The paper specifically addresses the following:

The Federal Governments heavy-handed, unconstitutional, attempts to chill the

Freedom of Speech. From an outright ban on corporate electioneering, to
burdensome reporting and disclosure provisions the government had gone too far, and
Citizens United helped restore the balance.

Citizens Uniteds long journey through the Court system to restore First Amendment
protections to political speech. Faced with potential fines and jail time for daring to
produce and distribute a film exploring the record of Hillary Clinton, Citizens United
went to Court to defend our rights and those of our 500,000 members.

Subsequent litigation that has continued to restore First Amendment protections to

political speech that has built upon and strengthened the principles set forth in
Citizens United. Citizens United has been relied on by numerous courts throughout
the country as grounds for strengthening First Amendment protections.

The changing nature and role of the press and its impact on political speech. For
years, state and federal law had afforded protection to media conglomerates while
ignoring citizen journalists. These distinctions no longer apply. Citizens United has
been leading this battle and has been recognized by the Federal Election Commission
and the 10th Circuit Court of Appeals as a member of the press.

The impact that Citizens United has had on subsequent elections. Since the Court
decision on January 21, 2010 three federal election cycles have passed. While each
cycle showed an increase in spending by outside groups, the data shows that
messaging still matters contrary to President Obamas warnings, you cant simply
buy an election.

Citizens Uniteds continuing efforts to protect the First Amendment and political
speech, ensure government accountability and transparency, and prevent
unconstitutional overreach by the President and Executive Branch.

AN UNCONSTITUTIONAL REGIME
The Federal Election Campaign Act (FECA) was passed in 1971 and laid the
groundwork for much of the campaign finance regime we know today. The Act was signed into
law by President Nixon in 1972 months before the notorious Watergate burglary and ensuing
scandal. As Watergate played out in the pages of The Washington Post and on national
television, Americans distrust of the government and elected officials grew.
With President Nixons resignation and the Watergate scandal fresh on their minds, the
public, and Congress were eager for reform or at the very least measures they hoped might
lead to reform. A citizenry, weary of politicians, desired changes which would help clean up
the political process they had the best of intentions.
In the wake of Watergate FECA was revised to provide for reporting and disclosure,
contribution limitations, and the creation of the Federal Election Commission (FEC).
The scandal prompted Congress to finally tackle these bigger issues about campaigns.
As then Sen. Joseph Biden explained, "Watergate isn't the question. Watergate is merely
a vehicle through which we can get through what we originally could not get through
because the fellows on the other team are in a very compromising position as a
consequence of it." Congress passed legislation that established contribution and
spending limits, public financing for presidential elections and an independent elections
commission.1

FECA was intended to regulate political campaigns and campaign related speech. Over
the course of four decades the law had been expanded and came to regulate most speakers who
dared utter the name of a candidate. The most radical expansion of FECA was the Bipartisan
Campaign Reform Act of 2002, better known as McCain-Feingold.
Beyond just regulating the speech of candidates and political committees the federal
campaign finance laws had come to regulate, and in some cases ban, speech by third party
speakers. Two classes of speech made by third parties were broadly regulated: independent
expenditures and electioneering communications.
An independent expenditure is defined as:
an expenditure by a person
(A)
expressly advocating the election or defeat of a clearly identified
candidate; and
(B)
that is not made in concert or cooperation with or at the request or
suggestion of such candidate, the candidates authorized political
committee, or their agents, or a political party committee or its agents.2

Simply put, independent expenditures are advertisements paid for by a third party that
advocate the success or defeat of a candidate.
1
2

http://www.cnn.com/2012/01/23/opinion/zelizer-campaign-finance-reform/
2 USC 431(17).

An electioneering communication is defined as:

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;3

These advertisements are known as issue ads - rather than urging support or opposition of
a candidate they take a position on an issue and reference a candidate while doing so.
In the 60 days before a general election and the 30 days before a primary election, issue
ads were heavily regulated. Independent expenditures were regulated year-round. If the speaker
was a corporation, both of these types of speech were generally prohibited. The federal
campaign finance rules included harsh civil penalties for knowing and willful violations of these
provisions including fines of up to double the amount of any expenditures made.4 The FEC
could also refer the violation to the Attorney General for criminal prosecution with the potential
for jail time.5
As FECA had been amended, regulations enacted, and advisory opinions issued by the
FEC, the sheer volume of campaign finance law had grown to a staggering amount. At the time
Citizens United v. FEC was decided the FEC ha[d] adopted 568 pages of regulations, 1,278
pages of explanations and justifications for those regulations, and 1,771 advisory opinions since
1975.6 It had reached the point where one could not open their mouth without hiring an
attorney.
Under this overregulated regime Citizens United, a non-profit corporation (which could
legally accept corporate contributions), was prohibited from promoting or distributing a film on
television which referenced a candidate for federal office. While a corporation like Citizens
United could not speak, certain corporate speakers, including the mainstream media and
Hollywood production companies, could still have their voices be heard.
Many of FECAs prohibitions were enacted at troubled times in our nations history
when public distrust of government was at all time highs. Rather than empower third party
checks on the government, over time the federal campaign finance laws had evolved to silence
independent speakers. The unfortunate truth is that they have done little to remedy the actual
problems that Congress sought to address. However well meaning they may have been, efforts
to criminalize speech and silence speakers are a bastardization of the First Amendment.

2 USC 434(f)(3)(a).
2 USC 437g(a)(5)(B).
5
2 USC 437g(a)(5)(C).
6
Citizens United v. Federal Election Commission. 558 U.S. 310, at 334 (2010).
4

THE FIGHT TO SHOW A FILM

Against the backdrop of the federal campaign finance laws, it becomes clear that any
prospective speaker faced an uphill battle. Having to navigate the complex federal campaign
finance laws, rules, and regulations is a challenge to even the most learned of attorneys.
Despite the challenges that stood before us, Citizens United was determined to tell the
story of how Hillary Clinton placed her ambition over principle, politics before honesty and,
arguably, self-interest above the law itself. We pressed forward with plans to produce and
distribute Hillary: The Movie in late 2007. Mindful that the marketing and distributing the film
on television would have been prohibited under federal campaign finance law, Citizens United
filed suit against the FEC in the U.S. District Court for the District of Columbia. The lawsuit
was filed in December of 2007.
Citizens United challenged the electioneering communications reporting and disclosure
provisions as they applied to the organization and its film. A three judge panel of the District
Court sided with the FEC and went so far as to declare the film express advocacy.
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.7

The decision set the stage for Citizens Uniteds appeal to the Supreme Court. A
provision of McCain-Feingold allows a plaintiff an expedited route to the Supreme Court when
challenging the constitutionality of the statute.8 A plaintiff could request that a three judge panel
of the District Court for the District of Columbia hear the case, which would then be directly
appealable to the Supreme Court.
The drafters of the statute intended for the courts to treat these challenges efficiently: It
shall be the duty of the United States District Court for the District of Columbia and the Supreme
Court of the United States to advance on the docket and to expedite to the greatest possible
extent the disposition of the action and appeal.9
For Citizens United, this expedited process took just over two years from filing to
resolution.
Citizens United was set for oral argument on March 24, 2009. At oral arguments, the
overreaching nature of the campaign finance laws became crystal clear. In response to
questioning by Justice Alito, Deputy Solicitor General Malcolm Stewart argued that Congress
had the power to regulate other media, including books the Government literally argued it had
the ability to ban books!

Citizens United v. Federal Election Commission. 530 F.Supp.2d 274, at 279 (D.D.C. 2008).
See BCRA 403.
9
BCRA 403(a)(4).
8

JUSTICE ALITO: That's pretty incredible. You think that if -- if a book was published, a
campaign biography that was the functional equivalent of express advocacy, that could be
banned?
MR. STEWART: I'm not saying it could be banned. I'm saying that Congress could
prohibit the use of corporate treasury funds and could require a corporation to publish it
using its -JUSTICE ALITO: Well, most publishers are corporations. And a publisher that is a
corporation could be prohibited from selling a book?10

The governments position became even more ludicrous, when the question of whether a book
distributed on an Amazon Kindle was prohibited under the statute.
JUSTICE KENNEDY: Just to make it clear, it's the government's position that under the
statute, if this kindle device where you can read a book which is campaign advocacy,
within the 60-30 day period, if it comes from a satellite, it's under -- it can be prohibited
under the Constitution and perhaps under this statute?
MR. STEWART: It -- it can't be prohibited, but a corporation could be barred from using
its general treasury funds to publish the book and could be required to use -- to raise
funds to publish the book using its PAC.11

As the questioning intensified, the Governments position became laughable:

CHIEF JUSTICE ROBERTS: It's a 500-page book, and at the end it says, and so vote for
X, the government could ban that?
MR. STEWART: Well, if it says vote for X, it would be express advocacy and it would
be covered by the pre-existing Federal Election Campaign Act provision.
*

MR. STEWART: Yes, our position would be that the corporation could be required to
use PAC funds rather than general treasury funds.
CHIEF JUSTICE ROBERTS: And if they didn't, you could ban it?
MR. STEWART: If they didn't, we could prohibit the publication of the book using the
corporate treasury funds.12

Months passed after that day in court. Each day that the Court would meet to release
opinions, the team at Citizens United eagerly awaited its ruling, and each day we received news
that the Court had yet to release the opinion. Finally, the last day of the Courts term came
around. The Court had no choice but to issue the opinion that day Citizens Uniteds President

10

Citizens United v. FEC, March 24, 2009 Oral Argument Transcript at 27.
Id at 28-29.
12
Id at 29-30.
11

David Bossie and General Counsel Michael Boos headed to the Court in anticipation of receiving
the decision.
The Court surprised Citizens United and the world, and did not issue an opinion in the
case. Instead, the Court, in an extremely rare action, set the case for rehearing to address a
broader question, whether it should overrule two previous Supreme Court cases which permitted
the government to ban corporate speech based on an anti-distortion rationale. Simply put, does
the government have an interest in regulating political speech to address the corrosive and
distorting effects of potentially large expenditures made by corporations?13 Setting the case for
rehearing was a break from tradition.
In a Supreme Court term that has had its share of surprises, the court saved one of the
biggest for last. Rather than publish an opinion at the end of the term as expected in
an obscure campaign finance case, Citizens United v. FEC, the court issued a rare order
for reargument of the case in September (before the usual start of the term). At that point,
the court will consider whether to overrule its two previous decisions that
in 1990 and 2003 upheld limits on corporate spending in federal elections.14

Further breaking from tradition, the Court set oral arguments for September 9, 2009,
nearly one month before the Courts traditional first Monday in October start date. When the
parties returned to Court, the United States had chosen to rely on then Solicitor General Elena
Kagan, perhaps in an attempt to distance themselves from Mr. Stewarts previous enthusiasm for
banning books.
Kagan continued the Governments defense of the overbroad prohibition on political
speech. She argued that corporations must be subject to special rules when they participate in
elections.15 In an argument littered with references to 100 years of precedent (which she conceded
was in reality less than 60) and references to corruption, Kagan also fell down the book banning
rabbit hole. She argued that:
We went back, we considered the matter carefully, and the government's view is that
although 441b does cover full-length books, that there would be quite good as-applied
challenge to any attempt to apply 441b in that context. And I should say that the FEC has
never applied 441b in that context. So for 60 years a book has never been at issue.16

In essence, yes the government can ban books, but trust us, we wont. After this line of
questioning, the result of this case was almost certain the Court was never going to endorse
granting the federal government unchecked power to regulate speech.
Chief Justice Roberts was quick to rebuke then Solicitor General Kagan: we don't put our - we don't put our First Amendment rights in the hands of FEC bureaucrats.17
13

Austin v. Michigan Chamber of Commerce, 494 U.S. 652, at 660 (1990).

The Supreme Court Gets Ready to Turn on the Corporate Fundraising Spigot.
http://www.slate.com/articles/news_and_politics/jurisprudence/2009/06/the_supreme_court_gets_ready_to_turn_on
_the_corporate_fundraising_spigot.html
15
Citizens United v. FEC September 9, 2009 Oral Argument Transcript at 35.
16
Id at 65.
17
Id at 66.
14

When the Citizens United decision was finally announced on January 21, 2010, it
reverberated throughout the nation. The Court went beyond just declaring that Citizens United
and its film were exempt from the restrictive campaign finance laws, the Court held that because
electioneering communications and independent expenditures are not done in coordination with a
candidate they are not a corrupting influence on a candidate as a result the bans on corporate
and union independent expenditures and electioneering communications were struck down.
Because of the Citizens United decision a wide range of previously silenced speakers had
their voices restored. Citizens could band together and speak with one voice. Other speakers,
including small business owners, mom-and-pop shops, corporations, and labor unions also had
their First Amendment rights restored.
The decision was met with loud criticism from the Left. Senator Chuck Schumer derided
the decision, stating:
With a stroke of a pen, the court decided to overrule the 100-year-old ban on corporate
expenditures and override the will of millions of Americans who want their voices heard
in our democracy.18

Schumers inflammatory statements missed the mark. His 100 year claim has been
disproven.19 He was joined by then Senator Russ Feingold, who argued that Citizens United
would result in corporate bullying of elected officials:
This decision gives a green light to corporations to unleash their massive coffers on the
political system. The profits of Fortune 500 companies in 2008 alone were 350 times the
entire amount spent on the last presidential election.
Oil companies, with virtually no harm to their balance sheets, can now try to "take out"
members of Congress who don't toe their company line on energy policy.20

In the years following the decision liberal legislators like Senator Tom Udall have gone
so far as to propose amendments to the United States Constitution to overturn Citizens United.
While these liberals were quick to decry Citizens United, in the five years that have
followed the decision they cannot cite a single example of a Member of Congress being
corrupted by independent expenditures. There is no evidence whatsoever to validate Schumers
or Feingolds dire warnings of Congress being bought and paid for by corporate interests this
purported corruption just does not occur.
The Left was eager to fight the decision because they knew that in striking down the
restrictive campaign finance laws and restoring First Amendment protections to political speech,
the Court had leveled the playing field. Speakers, whether individuals, corporations, or unions

18

Statement of Senator Charles Schumer, January 21, 2010.

http://www.politifact.com/truth-o-meter/statements/2010/jan/22/charles-schumer/campaign-finance-ruling-unitedcitizens-historical/
20
http://www.washingtonpost.com/wp-dyn/content/article/2010/01/22/AR2010012203874.html
19

were now subject to the same standards regardless of their identity. This would have a
profound impact in the years to come.
CONTINUING TO ADVANCE FREEDOM IN THE COURTS
Citizens United was a tsunami that rocked the campaign finance world. It engendered
such strong feelings that President Obama decried the decision during his State of the Union
address and sought to turn the 2010 midterm elections into a referendum on the case:
With all due deference to separation of powers, last week the Supreme Court reversed a
century of law that I believe will open the floodgates for special interests - including
foreign corporations - to spend without limit in our elections. I don't think American
elections should be bankrolled by America's most powerful interests, or worse, by foreign
entities. They should be decided by the American people. And I'd urge Democrats and
Republicans to pass a bill that helps to correct some of these problems.21

President Obamas accusations have been thoroughly debunked. American elections

have not been bought and paid for by foreign nationals or foreign corporations. Beyond that, the
fear-mongering didnt work. Americans did not view the 2010 elections as a referendum on
Citizens United or campaign finance law and if they did, they came down firmly against the
Presidents position.
While liberals have sought to turn Citizens United into a dirty word, conservatives have
continued the fight to protect the First Amendment in the courts. Three notable cases have built
off of the Citizens United decision and further crystallized its precedential value.
SpeechNow v. FEC
Just two months after the Citizens United decision was released, the U.S. Court of
Appeals for the District of Columbia Circuit as applied its precedent. In SpeechNow v. FEC, the
D.C. Circuit had to address whether a political action committee that limited its activity to
making independent expenditures would itself be subject to contribution limits. Due to the
Citizens United decision the Court reached a very straightforward answer:
Because of the Supreme Courts recent decision in Citizens United v. FEC, the analysis is
straightforward. There, the Court held that the government has no anti-corruption interest
in limiting independent expenditures
*

In light of the Courts holding as a matter of law that independent expenditures do not
corrupt or create the appearance of quid pro quo corruption, contributions to groups that
make only independent expenditures also cannot corrupt or create the appearance of
corruption. The Court has effectively held that there is no corrupting quid for which a
candidate might in exchange offer a corrupt quo.

21

2010 State of the Union Address.

Given this analysis from Citizens United, we must conclude that the government has no
anti-corruption interest in limiting contributions to an independent expenditure group
such as SpeechNow.22

The D.C. Circuits decision to eliminate contribution limits to committees that only made
independent expenditures resulted in the FEC creating a new class of registrants, Independent
Expenditure Only Committees (IEOCs or more commonly Super PACs). Subsequent
litigation has also allowed traditional political action committees to open separate bank accounts
to raise funds for independent expenditures that are not subject to contribution limits.23
American Tradition Partnership v. Bullock
From the date Citizens United was decided it was the law of the land. The decision
placed a limit on what the federal government, state governments, and regulatory bodies could
do to regulate speech. It was settled, everywhere -- except Montana.
In American Tradition Partnership v. Bullock24 the Supreme Court of the State of
Montana had to address whether Montanas ban on corporate political speech could stand in the
wake of Citizens United. Despite the Supreme Court invalidating bans on independent political
speech by corporations, the Montana Supreme Court upheld the law:
Citizens United does not compel a conclusion that Montana's law prohibiting independent
political expenditures by a corporation related to a candidate is unconstitutional. Rather,
applying the principles enunciated in Citizens United, it is clear that Montana has a
compelling interest to impose the challenged rationally-tailored statutory restrictions.25

The plaintiff, American Tradition Partnership rightly appealed the case to the Supreme
Court. Citizens United, aware that liberal judicial activists would encourage the Court to
overturn the Citizens United decision weighed in with an amicus brief.
This case was over before it even began. The Supreme Court did not even hear oral
arguments in the case. It summarily reversed the Montana Supreme Court in a one-page per
curium opinion:
The question presented in this case is whether the holding of Citizens United applies to
the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art.
VI, cl. 2. Montanas arguments in support of the judgment below either were already
rejected in Citizens United, or fail to meaningfully distinguish that case.
The petition for certiorari is granted. The judgment of the Supreme Court of Montana is
reversed. 26

22

SpeechNow.org v. Federal Election Commission. 599 F.3d 686 (D.C. Cir 2010).
Carey v. Federal Election Commission. 791 F.Supp.2d 121 (D.D.C. 2011).
24
American Tradition Partnership, Inc. v. Bullock (2012).
25
Western Tradition Partnership, Inc. v. Bullock. 271 P.3d. 1, at 13 (Mont. 2011).
26
American Tradition Partnership, Inc. v. Bullock (2012).
23

McCutcheon v. FEC
Citizens United explored the notion of corruption and the extent to which corruption
could justify limits on speech. Its been a long standing precedent that quid pro quo corruption
can justify limiting the amount of contributions an individual can give to a specific candidate.27
The federal campaign finance laws however went farther and capped the aggregate
amount that an individual could give to all parties, committees, and candidates. This aggregate
limit was at issue in McCutcheon v. FEC. Given the Courts guidance on what constitutes
corruption in Citizens United its easy to see why such an aggregate limit is unconstitutional.
If Congress has determined that a $2,600 contribution to a candidate will not corrupt a
candidate, why cant an individual give $2,600 contributions to as many candidates as they
desire? That was the question at issue in McCutcheon - Shaun McCutcheon, a businessman from
Alabama wanted to give numerous candidates contributions of $1,776 and make generous
contributions to party committees. Given the number of candidates he wished to support he
would have surpassed the aggregate limits.
The Supreme Court again sided with the First Amendment and rolled back another
federal limit on the ability to exercise ones right to political speech.
The right to participate in democracy through political contributions is protected by the
First Amendment, but that right is not absolute. Our cases have held that Congress may
regulate campaign contributions to protect against corruption or the appearance of
corruption. At the same time, we have made clear that Congress may not regulate
contributions simply to reduce the amount of money in politics, or to restrict the political
participation of some in order to enhance the relative influence of others (citations
omitted).28

The Courts decision reinforced its precedent that the government may only regulate
political speech in an effort to address quid pro quo corruption. Thats come to be one of the few
bright lines in the field of campaign finance law.
At their most basic level Citizens United, SpeechNow, American Traditional Partnership,
and McCutcheon all stand for the proposition that more speech is better speech. If you do not
like what a particular person or entity has to say, its your right to counter their speech with your
own message. As the number of speakers in the marketplace of ideas has grown, one entrenched
speaker has lost its clout and near monopoly on speech the mainstream media.
THE MODERN PRESS
YOU REPORT AND YOU DECIDE
Citizens United and the fight to distribute Hillary: The Movie could have been resolved
far more simply and efficiently had the FEC recognized that Citizens United is a legitimate
27
28

See, Buckley v. Valeo. 424 U.S. 1 (1976).

McCutcheon v. FEC. 134 S. Ct. 1434 (2014).

member of the press. Just as the First Amendment protects the Freedom of Speech, it also
protects the Freedom of the Press. The Supreme Court has recognized that:
In the First Amendment the Founding Fathers gave the free press the protection it must
have to fulfill its essential role in our democracy. The press was to serve the governed,
not the governors. The Government's power to censor the press was abolished so that
the press would remain forever free to censure the Government. The press was
protected so that it could bare the secrets of government and inform the people.
Only a free and unrestrained press can effectively expose deception in government
(emphasis added). 29

The Freedom of the Press is clearly established in the First Amendment and our nations
history. However, the press at the time of our nations founding was far different from the
press we are familiar with today. At that time it was far more common for the press to consist
of a solitary figure, like Thomas Paine, distributing his ideas to the public as a pamphleteer.
The Founding Fathers put their words to paper and distributed them anonymously look
no further than Alexander Hamilton, James Madison, and John Jay who penned the Federalist
Papers under the name Publius. A far cry from ABC, NBC, or the New York Times these
revolutionaries spread their message from patriot to patriot. Citizens United carries on in the
tradition of these citizen journalists rather than spreading news through a pamphlet, it does so
through film and the internet.
At the time of the Citizens United decision, noted campaign finance attorney Cleta
Mitchell addressed the nature of the modern corporation-dominated press:
The Supreme Court has correctly eliminated a constitutionally flawed system that
allowed media corporations (e.g., The Washington Post Co.) to freely disseminate their
opinions about candidates using corporate treasury funds, while denying that
constitutional privilege to Susie's Flower Shop Inc.30

Under federal campaign finance laws, the definition of electioneering communication

includes an exception for a communication appearing in a news story, commentary, or editorial
distributed through the facilities of any broadcasting station, unless such facilities are owned or
controlled by any political party, political committee, or candidate.31 Similarly, statements by
the press are excluded from the definitions of expenditure and independent expenditure.32 While
such exemptions are in keeping with the First Amendment and the Freedom of the Press, finding
an effective way to implement them has proven difficult and often resulted in discriminatory
results that favor one class of speakers over another.
The FEC has a process known as an advisory opinion wherein an entity can petition the
Commission for recognition as a media entity. This process, when properly exercised,

29

New York Times v. United States. 403 U.S. 713, at 717. (1971).
http://www.washingtonpost.com/wp-dyn/content/article/2010/01/22/AR2010012203874.html
31
2 USC 434(f)(3)(b)(1).
32
2 USC 431(9)(B)(i).
30

provides a relatively convenient means for determining whether a speaker will be subjected to
burdensome campaign finance regulations or exempted as a media entity.
In 2004 Citizens United sought a media exemption from the FEC to produce and
distribute a film on the life and career of then presidential candidate John Kerry. The FEC
denied Citizens Uniteds request. The Commission made a value judgment in denying Citizens
Uniteds request, in essence finding that Citizens United had made too few films at the time to
qualify:
[T]he Commission concludes that the proposed Film would not be entitled to the media
exception. Citizens United does not regularly produce documentaries or pay to broadcast
them on television. In fact, the information that you provided indicates that Citizens
United has produced only two documentaries since its founding in 1988.33

In 2010, after having defeated the FEC at the Supreme Court, Citizens United again
asked the Commission to recognize its status as a media entity. This time, with at least 14 films
in our repertoire, and a Supreme Court victory, Citizens United was declared a media entity, and
its costs for producing and distributing its films were excluded from regulation as expenditures,
independent expenditures or electioneering communications.34
Despite having been granted the federal media exemption Citizens United has had to
continue fighting for recognition as a media entity in the states. For example, the State of
Colorados media exemption was written so narrowly that absent ownership of a printing press
or a broadcast station, one would not qualify.35
Colorado defined media as though they had taken a photograph in 1970 ignoring what
had come before, including the role that film historically played in conveying news footage, and
failing completely to acknowledge what had come since. The concept of media has evolved as
technology has lessened the impact and reach of traditional print and broadcast media today
blogs, live streaming, and even Twitter reach greater audiences than the evening news or the
print edition of The Washington Post. In essence weve embraced a new media culture where
you report and you decide.
In Colorado, the Secretary of State administers that states burdensome and complex
campaign finance regulatory regime. Similar to the FEC advisory opinion process, the Secretary
of State has a mechanism for obtaining an advance ruling on the application of the states
campaign finance laws to a proposed undertaking. But when Citizens United petitioned for a
ruling that a forthcoming film about Colorado politics would be exempt from the regime under
the states media exemptions, the Secretary ruled that the film was not exempt because the
exemptions applied only to printed publications, such as The Denver Post, and broadcast
facilities, such as a television station.

33

AO 2004-30.
AO 2010-08 Citizens United.
35
Colo. Const. art. XXVIII, 2(7)(b); see also Colo. Rev. Stat. 1-45-103(9).
34

Despite Citizens Uniteds robust history as a film studio, having produced twenty four
films, having secured a victory at the Supreme Court, and having received the federal media
exemption, Citizens United would be subject to campaign finance reporting and disclosure it
promoted or distributed its film, Rocky Mountain Heist, in Colorado. Refusing to stay silent,
Citizens United continued the fight for the First Amendment in court.
In filing its lawsuit, Citizens United is fighting to reconcile the law with what we
all know to be fact: The media is changing. We've watched it evolve from
traditional printed newspapers to radio, television, bloggers and film.
To impose campaign finance reporting obligations on one class of media entities
while protecting others is both discriminatory and wrong.
Congressman Ken Buck (CO-4)36

After losing at the trial court, Citizens United appealed and had its rights vindicated by
the 10 Circuit U.S. Court of Appeals, which held the First Amendment requires the Secretary
to treat Citizens United the same as exempted media. Thus, Citizens United was able to release
and promote Rocky Mountain Heist in Colorado in the days leading up to the 2014 elections.
th

The question of who, or what entities, are members of the media still has yet to be firmly
resolved. Undoubtedly additional litigation will arise. It wont be confined to the realm of
campaign finance. This question strikes at the heart of the First Amendment. Certainly the
freedom of the press, the reporters privilege, and to what extent they extend beyond traditional
news sources to new forms of media, including modern citizen journalists like bloggers will need
to be resolved in short order.
THE FREEDOM OF SPEECH IN THE CITIZENS UNITED ERA
While Citizens United has continued to cement its position as the nations premier
conservative filmmaker, a slew of other independent speakers have joined the public debate now
that the Citizens United decision has restored their First Amendment rights.
At least $560 million in outside spending occurred in the 2014 election cycle.37
Approximately $300 million was spent by conservative groups and $225 million by liberals.
This is an increase over the nearly $310 million spent in the first post-Citizens United midterm
election in 2010, and the $69 million spent in last pre-Citizens United midterm election in
2006.38 While these total numbers are large they pale in comparison to the $2.5 billion spent on
Halloween candy each year or the billions of dollars in advertising revenue spent by McDonalds,
General Motors.39

36

http://www.denverpost.com/opinion/ci_26606922/ken-buck-democrats-chill-free-speech-by-halting
https://www.opensecrets.org/outsidespending/cycle_tots.php
38
Id.
39
http://nypost.com/2014/10/12/halloween-candy-sales-expected-to-top-2-5b/
http://www.businessinsider.com/the-35-companies-that-spent-1-billion-on-ads-in-2011-2012-11?op=1
37

A 2014 study evaluated the impact of post Citizens United spending on state legislative
races. The results founds that Citizens United is associated with an increase of approximately
six percentage points in the probability that a Republican candidate is elected in state legislative
races. Furthermore the study found that Citizens United is associated with a statistically
significant increase of approximately four percentage points in the probability that a Republican
candidate is elected in state House Races. These numbers were so pronounced that
Republicans took control of an unprecedented 69 of 99 statehouse chambers in the [2014]
midterm elections.41 Thats a marked shift from the 36 chambers Republicans controlled during
the 2009 legislative session.42
40

Outside spending in politics has increased, and made an impact. Before Citizens United
political speech was heavily tilted in favor of incumbents. Sitting legislators and party
committees had a built in advantage. Its far easier for an incumbent to raise funds in $2,600
increments than for an unproven challenger. Incumbents can exercise their influence to open the
wallets of donors and special interests.
Independent voices had been silenced by lawmakers sitting in Washington and state
capitals eager to shut down those who dare oppose them. Thats not to even mention the built in
advantage of federal legislators ability to send franked mail to promote their successes to their
constituents they can legally send out self-serving promotional materials to their constituents,
paid for by the taxpayers.
Challengers were traditionally the odd man out. Post Citizens United additional
resources could be spent by independent groups to break this stranglehold incumbents held on
Washington and in State Houses throughout the nation.
The Revolution (2010)
Midterm elections are often yawn-inducing. They tend to have low turnout, low energy,
and generate little excitement. The 2010 elections were a different story. Outraged by the liberal
policies of President Barack Obama such as the Affordable Care Act (commonly known as
ObamaCare) an energized and vocal group burst onto the scene. This group of Tea Party
activists brought an injection of energy to races across the nation. Their message was simple:
Washington is horribly broken. We are encountering a day of reckoning and this
movement, this Tea Party movement, is a message to Washington that we're unhappy and
that we want things done differently.
Dr. Rand Paul.43

The ability of these activists to join together, raise funds, and fight for core conservative
values was made possible by Citizens United. Among the groups leading the Tea Party
40

http://www.ualberta.ca/~klumpp/docs/cu.pdf
http://www.nytimes.com/2014/11/30/us/gop-gains-by-tapping-democrats-base-for-state-candidates.html?ref=politics&_r=1
42
http://www.ncsl.org/documents/statevote/LegisControl_2009.pdf
43
Dr. Rand Paul, Primary Victory Speech, May 18, 2010.
41

movement, many were 501(c)(4) non-profit organizations recognized by the IRS. These groups
including Freedom Works and Americans for Prosperity were able to make their voices heard
using the rights restored by Citizens United and they whole-heartedly embraced those rights.
In 2010 nearly $310 million was spent by
2010 FEDERAL ELECTIONS
outside groups.44 The underlying numbers show that
REPUBLICAN DEMOCRAT
conservative groups were better prepared and eager
SENATE
47
51
to exercise their restored rights than liberals.
+6
-6
Conservative groups spent approximately $190
HOUSE
242
193
million compared to liberals $105 million.45 $310
+64
-64
million was a dramatic increase from the $69 million
46
spent by outside groups in the last pre-Citizens United midterm election.
This Tea Party revolution transformed the House of Representatives and helped set the
stage for future wins in the Senate. Republicans gained sixty four seats in the House. This wave
elected conservative leaders to Congress including Allen West (FL) and Tim Scott (SC). This
was the single biggest Republican increase since 1938.47
Not only were the gains widespread, the candidates who were elected were more
conservative. The Tea Party embraced conservative principles and ideas, and they sought out
and supported true conservatives. 2010 saw the election of Senators Rand Paul in Kentucky,
Ron Johnson in Wisconsin, and Marco Rubio in Florida. One of the more interesting races saw
Mike Lee, a conservative attorney, challenge and defeat the sitting Senator from Utah, Bob
Bennett, in a heated primary convention. The outside spending in these Senate races showed an
uptick: $10 million was spent in Kentucky; $10 million in Florida; and $5 million in
Wisconsin.48
The Tea Party proved it could win in general elections, but also fought hard to make sure
the Republican Party selected true conservatives in their primaries. In his victory speech Senator
Paul described the results as a Tea Party tidal wave, and were sending a message.49
Washington, D.C. heard their message loud and clear. Americans were fed up and not
willing to accept the liberal, big-government, status quo anymore. This sort of revolution would
not have occurred without the First Amendment protections restored by Citizens United.
The Most Expensive Election in History (2012)
Just as 2010 showed a significant increase in outside spending, 2012 broke all of the
records. In 2012 outside spending crossed $1 billion.50 Of that spending, $720 million was
spent by conservative interests as compared to nearly $300 million spent by liberals.51
44

https://www.opensecrets.org/outsidespending/cycle_tots.php
https://www.opensecrets.org/outsidespending/cycle_tots.php
46
Id.
47
Time for Republicans to Deliver. Karl Rove. http://www.rove.com/articles/265
48
https://www.opensecrets.org/outsidespending/summ.php?cycle=2010&disp=R&pty=A&type=A
49
Senator Rand Paul, Victory Speech, November 2, 2010.
50
https://www.opensecrets.org/outsidespending/cycle_tots.php
45

Much of the funds were spent on the presidential election. Conservative outside spending
approached $420 million, while liberals spent $130 million.52 These numbers helped bridge the
funding advantage that President Barack Obama enjoyed over Republican Challenger Mitt
Romney. Obama raised nearly $270 million more than Romney, and spent over $250 million
more than his challenger.53
Among the innovations in the 2012 cycle was the creation of candidate specific Super
PACs. Most of the top-tier Republican candidates for president had their primary efforts
bolstered by independent groups that were able to raise unlimited funds to support their races.
Speaker Newt Gingrich was supported by Winning Our Future. Make Us Great Again supported
Texas Governor Rick Perry. Candidate specific Super PACs were initially attacked by the Left
as an end run around contribution limits.
Further indicating that candidate-specific super PACs are being used to end-run
traditional campaign contribution limits, a new analysis finds that Restore Our Future, the
super PAC formed to support former Massachusetts Governor Mitt Romney's candidacy
for president, is being primarily funded by donors who have already maxed out on direct
contributions to Romney's campaign.54

Its natural for maxed out donors to drive their support to Super PACs, even wealthy liberals do
so. If the Left would rather the funds go to candidates there is a simple solution raise candidate
contribution limits.
Since 2012 these candidate Super PACs have become commonplace. In the general
election Mitt Romneys efforts were bolstered by Restore Our Future ($142 million), while
Barack Obama was backed by Priorities USA Action ($65 million).55 Despite these large sums
of money, Romney did not prevail over Obama. The outside spending made possible by Citizens
United was unable to tilt the election in favor of Mitt Romney. While money is an important
tool in any election, it is not the be-all and end-all.
Independent conservative groups are going to have to come to terms with the fact that
they spent more than $700 million 70 percent of all of the reported independent
spending in the 2012 election and walked away with little to show for it.
Republican presidential candidate Mitt Romney was supported by outside groups that
outspent allies of President Barack Obama by $260 million. And yet he still lost.56

The real story of 2012 was found in Senate races across the country - principle mattered.
Regardless of party, voters were eager to embrace strong-minded, principled, candidates who
clearly articulated their beliefs. For the Republicans, the superstar was Ted Cruz, who ran for
51

Ibid.
https://www.opensecrets.org/pres12/#out
53
https://www.opensecrets.org/pres12/#out
54
Candidate-Specific Super PACs Offer End Run For Maxed-Out Donors: Study Dan Froomkin.
http://www.huffingtonpost.com/2011/10/04/candidate-specific-super-pacs-donors_n_994260.html
55
https://www.opensecrets.org/pacs/superpacs.php?cycle=2012
56
Super PACs, Outside Money Influenced But Didnt Buy The 2012 Election. Paul Blumenthal.
http://www.huffingtonpost.com/2012/11/07/super-pacs-2012-election-outside-money_n_2087040.html
52

the Senate in Texas. Cruz, the former Solicitor

General of Texas, handily defeated the sitting
Lieutenant Governor David Dewhurst in a primary
runoff by a margin of 57% to 43%. Cruzs bold
principles and positive agenda carried the day.

2012 FEDERAL ELECTIONS

REPUBLICAN DEMOCRAT
SENATE
47
51
-2
+2
HOUSE
234
201
-8
+8

On the other side of the aisle, liberals hung

their hat on the Senate campaign of Elizabeth Warren in Massachusetts. Warren ran a
relentlessly liberal campaign and prevailed. Over $4 million in outside spending was focused on
this Massachusetts Senate seat.57
The Wave (2014)

The dust is just beginning to settle on the 2014 elections. Its too early to fully evaluate
the true impact of outside spending on results in key House and Senate races. What we do know,
is that Citizens United v. FEC allowed for greater participation in the electoral process.
In 2014 at least $560 million was spent by outside groups (excluding the political party
committees). That number is a dramatic increase over the funds spent in the 2010 midterm
election. Spending went from approximately $310 million to $560 million or a 45% increase.
This shows increased participation in the political process. Those who invested in the political
process did so wisely. Funds were directed to states where they could make an impact: $80
million was spent in North Carolina, nearly $70 million in Colorado, and $60 million in Iowa.58
These independent voices and their messages helped voters send once powerful
Democrats like Kay Hagan (NC), Mark Pryor (AR), Mark Begich (AK), and Mary Landrieu
(LA) into retirement. Independent speech has made it possible to defeat entrenched incumbents,
much to the chagrin of party leaders.
Senate Majority Leader Harry Reid saw this coming
for quite some time. What else could explain his
taking to the Senate Floor numerous times to attack
outside spending, and seeking to blame all the ills of
the world on the Koch brothers.59 He sought to stem
the influence of outside speech by giving it a face and
attempting to demonize it he failed. Not only that,
he failed to grasp what issues matter to the American public. Reid, like Obama before him, tried
to turn the election into a referendum on campaign finance law and outside speech; it was a
desperate tactic they turned to when they could no longer defend their failed liberal agenda.
2014 FEDERAL ELECTIONS
REPUBLICAN DEMOCRAT
SENATE
54
44
+9
-9
HOUSE
247
188
+13
-13

The 2014 elections showed a Republican wave with Senate candidates like Tom Cotton
(AR) or Joni Ernst (IA) winning decisively. There were however many tight races that were
determined by a point or two. In close races like the victory of Thom Tillis over Kay Hagan in
57

https://www.opensecrets.org/outsidespending/summ.php?cycle=2012&disp=C&type=A
https://www.opensecrets.org/outsidespending/summ.php?disp=R
59
http://www.politico.com/story/2014/07/harry-reid-koch-brothers-108632.html
58

North Carolinas Senate race, or in closely contested House races, the impact of Citizens United
and independent speech cannot be discounted. The voice of the people has been restored, and
theyve taken to the megaphone to make sure their voices are heard.
Where outside spending gave voice to what Americans have been thinking and feeling it
had a tremendous impact. Super PAC and 501(c)(4) advertising that represented the interests
and values of an electorate eager for meaningful change helped secure victories. Look no further
than advertisements run by Americans for Prosperity highlighting Democrat candidates support
for President Obama and his failed policies in Georgia and North Carolina, or the advertisements
Citizens United Political Victory Fund ran in Arkansas highlighting Mark Pryors lax attitude
towards securing our borders.
These are examples of grassroots organizations, supported by millions of freedom loving
Americans, speaking out and having their voices heard. These messages spoke to voters and
connected with them because they focused on issues that matter to real people. Americans are
hungry for leadership. They want a government that enacts policies that allow individuals to
succeed rather than trap them in a cycle of dependency. Channeling that voice undoubtedly
helped sway what could have otherwise been tight races in states like Arkansas, Colorado,
Georgia, and Iowa.
Where outside spending merely gave voice to liberal special interests it overwhelmingly
failed. Out of touch elites like Tom Steyer spent millions on pet projects such as NextGen
Climate that were attempts to shove a liberal agenda down the throats of voters who were neither
hungry nor eager for it. Its reported that Steyer spent $57 million of his own dollars across the
country, with barely any results to show for it.60
Similarly, the liberal elites who backed the Mayday PAC failed miserably. Despite
Harvard Professor Larry Lessigs aggressive attempts to woo media attention to his liberal
agenda, Americans were not moved by a Super PAC that existed to oppose money in politics.
This effort squandered $10 million on an issue that did not resonate with voters.61
The takeaway is simple, the message matters. Citizens United restored voices and
opportunities for Americans to speak out against a government run amok. Liberal elites, despite
their best efforts, could not hijack this election from the millions of hard working Americans
who stood up for what they believe in. Citizens United allowed citizens to stand together and
demand real change. On Tuesday November 4, 2014 they got it.

60

http://www.nationaljournal.com/energy/tom-steyer-spent-74-million-on-the-election-he-didn-t-get-much-to-showfor-it-20141105
61
http://www.politico.com/story/2014/11/2014-elections-mayday-pac-larry-lessig-112617.html

THE LONG LOUD ROAD AHEAD

When the Citizens United decision was announced on January 21, 2010 it made an
impact. It changed the way elections are conducted by restoring the voices of millions of
Americans who wished to join together and speak with one voice. It allowed independent
speakers to break the stranglehold that entrenched establishment incumbents held over our
political system.
When Citizens United went to court to defend our First Amendment rights and those of
our 500,000 members few others were willing to stand with us. We embarked on a long and
costly legal battle to defend the Freedom of Speech, confident that the Constitution was on our
side. We know firsthand the critical role the courts play in defending liberty.
This important victory was a new beginning. While the case was the end of Citizen
Uniteds multi-year effort to broadcast a film, it also helped define Citizens Uniteds mission
going forward. There are still important battles to be waged and we will not stand idly by while
liberal activists work to encroach on our rights and freedoms.

Defending the First Amendment Where states or the federal government seek to
trample on the Freedom of Speech, Citizens United has taken action. Currently Citizens
United is fighting outdated campaign finance regulations in Colorado that silence
political speech. Weve secured an important victory at the 10th Circuit, but the battle
continues. Were also leading the charge to protect our donors right to privacy by suing
New York State. The New York Attorney General had demanded Citizens United and
other non-profits turn over their confidential donor information, which would have a
chilling effect on speech and the freedom of association.

Holding the Government Accountable Transparency in government helps citizens

hold officials accountable. Citizens United has filed dozens of Freedom of Information
Act (FOIA) requests with various government agencies seeking disclosure of public
records. Where the government has failed to meet its legal obligations under FOIA,
Citizens United will sue to compel disclosure. The publics watchful eyes serve as an
important check on government power, and only through monitoring its activities can we
ensure that it stays true to the principles we hold dear.

Preventing Executive Overreach President Obama is determined to finish his term in

office ruling by fiat, legislating from the Oval Office by Executive Order, rather than
respecting the Constitutions separation of powers. Where Obama ignores Constitutional
limits and usurps legislative powers, we must work aggressively to blunt his overreach.

Continuing to Spread Conservative Ideas Through Film In the years since the
Supreme Court decision in Citizens United we have continued to tell impactful stories
through film. Through our films weve given a voice to conservatives and helped spread
their message of the importance of free market economic principles, the need for a strong
national defense, and conservative family values. Thanks to our decisive victory at the
Supreme Court Hillary: The Sequel will be coming soon to theaters across the country.