Citizens United, now represented by former Solicitor General Ted Olson, has filed with the Court a stinging attack on the rules now in place to limit campaign related, corporate-paid issue advertising.  The "narrow" issues concern a film highly critical of Hillary Clinton and the advertisements run to promote them: Citizens United, a nonprofit corporation, paid for them, with mostly individual but some corporate money, and the questions are whether (1) the film is corporate-paid electioneering, not eligible for the issue advocacy exemption established by Wisconsin Right to Life II, and (2) the advertisements for the film, if exempt as commercial promotions, are subject to FECA "disclaimer" and disclosure requirements.

     The Olson brief is not modest in ambition.  It calls for the Court to overrule Austin v. Michican Chamber of Commerce (494 U.S. 652 (1990)), a case upholding prohibitions on corporate independent expenditures—expenditures that expressly advocate the election or defeat of a clearly identified candidate.  Citizens United dismisses the notion that speech restrictions can be keyed to the identity of the speaker.  It also quarrels with the unforgiving, "all or nothing" application of the so-called MCFL exception, which allows a certain class of nonprofit corporations to fund independent expenditures if they use only funds donated by individuals.  Citizens United argues that its financing was predominantly from individuals, which for constitutional purposes, it is sure, should be enough.

     The brief rolls on to assail the reasoning behind applying the corporate spending restrictions to media not disseminated to the public at large, but accessed only "on demand."  The Citizens United film was to be made available through "Video On Demand":  the customer would choose the film and only the customers who wished to see the film would do so.  DVDs were also available and Olson makes much of the point that, under the law, the DVDs may be acquired by an individual who would not have the right to order it for personal viewing on Video On Demand.

     Olson is in no mood for concessions.  By the end of these doctrinally grounded defenses, he takes the film as it is and argues that it is not, by the WRTL standard, susceptible of no reasonable interpretation other than as an appeal to vote for or against a particular candidate.  Yes, the film was an election year production, and yes, it includes express commentary by various interviewees who believe that for one reason or another Hillary Clinton should not be President.  Viewed as a whole, Olson insists, the film is a source of information (and even, he writes, entertainment), and the mere reference to candidacy might be necessary to, but it cannot be sufficient for, the finding of a prohibited electioneering communication.  Olson would have the Court distinguish between the 30-second ad, presenting an opinion about the fitness of a candidate to hold office, and the incorporation of the same opinion "as part of a larger debate over the competing candidates' fitness for office".  Br. at 39.  A debate of that kind would not constitute a "blunt appeal" to vote (id.):  it would not be proscribed by the McCain-Feingold "electioneering communication" prohibition on corporate broadcast speech.

     Throughout this analysis, Olson returns to the constitutional requirement that these complex restrictions be measured against the compelling interest in preventing corruption or its appearance.  He does not see the corruptive potential of Citizen United's documentary film-making.  Those who would have seen it through Video On Demand would have done so as matter of choice.  It would not have been snuck into their living rooms under cover of commercial television entertainment.  And "the notion that Senator Obama would have viewed the Video On Demand distribution of [the film] as a contribution to his amply financed campaign, and that President-Elect Obama…would now feel beholden to Citizens United…is patently absurd."  Id. at 41.

     The reading of this brief will leave no doubt that this case, before this Court, has the potential to leave a large and ever widening crack in the foundation of contemporary campaign finance regulation.

Bob Bauer