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Citizens United Pursuant to the Federal Election Campaign Act of 1971, As Amended ("FECA")

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Citizens United Pursuant to the Federal Election Campaign Act of 1971, As Amended ( \*m%t Via Hand Delivery Sss 2? H Lawrence H. Norton, Esquire f S^S^^ General Counsel co .f :^Sr'rn Federal Election Commission TJ nj'.i?coP< 999 E Street, NW ^ g§q5 Washington, DC 20463 ^ > 5 CO ~~ Re: Advisory Opinion Request Dear Mr. Norton: This advisory opinion request is being submitted on behalf of Citizens United pursuant to the Federal Election Campaign Act of 1971, as amended ("FECA"). In particular, Citizens United desires an advisory opinion on the following three issues: (1) whether paid broadcast advertisements for a book titled The Many Faces of John Kerry. which was authored by the organization's president, David N. Bossie, would qualify as "electioneering communications" if the ads are broadcast during either the 30 day period preceding the Democratic National Convention or the 60 day period preceding the presidential election on November 2,2004; (2) whether the broadcast of a documentary film on John Kerry and John Edwards and/or broadcast advertisements for the film would qualify as "electioneering communications" if the film or ads are broadcast during the 60 day period preceding the presidential election on November 2,2004; and (3) if the film or ads at issue in this advisory opinion request qualify as electioneering communications, whether the film or ads for the film or book fall within FECA's press exemption.1 1 Citizens United is aware that on June 25, 2004 the Commission issued Advisory Opinion 2004- 15, which concluded that broadcast advertising of a documentary the included references to President George W. Bush would qualify as an electioneering communication if the ads are aired during the 60 days preceding the general election or 30 days preceding any primary or preference election for the office sought by the candidate. AO 2004-15. In that opinion, however, the Commission expressly declined to determine whether the press exemption applied because the requester did not assert entitlement to the exemption and the request did not provide any information that would allow the Commission to determine whether the exemption would apply. See kL In addition, Advisory Opinion 2004-15 does not address whether the paid broadcast of a documentary, as opposed to commercials advertising the documentary, would qualify as an electioneering communication, and if so, whether the documentary would qualify under the Act's press exemption. 1006 Pennsylvania Avenue, S.E. • Washington, D.C. 20003 Tel (202) 547-5420 • Fax (202) 547-5421 • www.citizensunited.org Contributions or gifts to Citizens United are not tax deductible. Advisory Opinion Request July 8,2004 Page 2 of4 Background Information Citizens United is a Virginia non-stock corporation that is exempt from Federal taxes under section 501(c)(4) of the Internal Revenue Code. Citizens United was established as a membership organization in 1988, and throughout its existence, it has accepted contributions from a variety of sources, including individuals and corporations. Citizens United intends to continue accepting contributions from corporations and it has no immediate plans to establish a separate segregated fund for the purpose of making electioneering communications.2 Citizens United is not owned or controlled by any political party, political committee or candidate. Citizens United considers itself part of the news media. Throughout its existence, the organization has published and disseminated various types of informational and editorial materials. Examples include newsletters, position papers, video documentaries, paid broadcast infomercials and books, including biographies on presidential candidates Bill Clinton (1992) and Al Gore (2000). During the mid-1990s Citizens United hosted a daily radio program entitled "Floyd Brown Talks Back to America." Citizens United was also one of the litigants in McConnell v. FEC. 124 S.Ct. 619 (2003). In that action, Citizens United argued unsuccessfully that FECA, as amended by the so-called Bipartisan Campaign Reform Act, was unconstitutional on its face because it violated the organization's Freedom of the Press rights under the First Amendment. With the exception of the book and documentary film at issue in this advisory opinion request, Citizens United's press activities, including the activities referenced above, were part of the court record in McConnell. One of Citizens United's main contentions in the case was that FECA's press exemption unconstitutionally discriminated against the press activities of ordinary citizens and advocacy organizations such as Citizens United. The Supreme Court's opinion, however, does not directly address whether activities of the nature described in this advisory opinion, if undertaken by Citizens United, fall within the scope of the press exemption. Recently, David N. Bossie, president of Citizens United, authored a book titled The Many Faces of John Kerry. Why This Massachusetts Liberal Is Wrong for America.3 The book has been published by WMD Books and is about to be released for sale across the country. As it has in the past, Citizens United has entered into an agreement with an 2 Citizens United has established a separate segregated fund named Citizens United Political Victory Fund (CU-PVF), which is qualified as a multi-candidate political action committee under FECA. The organization does not intend to use any CU-PVF funds to pay for any of the broadcast of advertisements or film at issue in this advisory opinion request. 3 Mr. Bossie recently filed a complaint with the Commission alleging that broadcast ads for Michael Moore's film "FAHRENHEIT 9/11" will qualify as electioneering communications if broadcast within the 30 days preceding the Republican National Convention and 60 days preceding the November 2, 2004 presidential election. See MUR 5467. Advisory Opinion Request July 8,2004 Page 3 of4 online bookstore whereby it (Citizens United) receives a commission on any copies of the book ordered via it's web-page. In order to maximize its online sales, Citizens United is considering producing and airing advertisements for the book in various television, cable, satellite and radio markets throughout the United States. While the ads are yet to be produced it is anticipated that television ads would include a visual image to the book cover (a copy of which is enclosed). The book cover includes the words "John Kerry" in the title and three photographic images of Mr. Kerry. Radio ads would likely include the title of the book and other references to Mr. Kerry by name. None of the ads would expressly advocate the election or defeat of Mr. Kerry or any other Federal candidate. The projected time frame for running the ads includes periods falling within the 30 days preceding the Democratic National Convention and 60 days preceding the presidential election on November 2,2004. It is anticipated that the number of persons in the United States would could view or hear the ads would far exceed 50,000, and Citizens United's total expenditures on the ads would be well in excess of $10,000 in the current year. The planned documentary film would focus on the lives and careers of John Kerry and John Edwards, and would include numerous visual images of both men and would mention their names throughout. The film may also include visual images and the names of other federal candidates. Broadcast ads for the film would also include visual images of Kerry and Edwards, and make mention of their names. Neither the film, nor its advertising, would expressly advocate the election or defeat of the Kerry/Edwards ticket. Besides making the documentary available to movie theaters and marketing it for DVD and VCR sales, Citizens United is considering purchasing broadcast time to air the film in certain markets. The broadcast of the documentary and/or its advertisements would likely occur during the 60 day period preceding the presidential election on November 2,2004. It is further contemplated that any broadcast of the film or its commercials could be viewed by more than 50,000 persons in the United States. Citizens United's anticipated expenditures to air the film would far exceed $10,000 in the current year, as would the organization's expenditures on the film's broadcast advertising. Questions In light of the facts presented above, Citizens United requests an advisory opinion on the following questions: 1. Would the organization's broadcast ads for The Many Faces of John Kerry qualify as an "electioneering communication" under FECA? 2. Would the paid broadcast of either the documentary on the lives and careers of John Kerry and John Edwards or commercials advertising the documentary qualify as an "electioneering communication" under FECA? Advisory Opinion Request July 8,2004 Page 4 of4 3. If the film or ads referenced in this request qualify as electioneering communications would any of them fall within the press exemption under 2 U.S.C. § 434(f)(3)(B)(i)? Citizens United acknowledges that existing law allows the Commission 60 days following receipt of this advisory opinion request to issue a written opinion. Nevertheless, in light of the significant First Amendment issues at stake and the proximity of the "electioneering communications" window, Citizens United respectfully requests expedited consideration of this advisory opinion request. Michael J^oos Vice President & General Counsel Enclosure B •• m ff «!gga^gassfc»gg ^* aya^HH1" ""I •• P" •• i • h m n, ** i -i s^j n. FT: •v ^JT ^ Hr-Ni C2-ILJ =w* JT pa cd_S eLi eib. L=4 ^ WHY THTS MASSACHUSETTS LIBERAL IS WRONG FOR AMERICA i ^ =1 V1, ju>£kv A\ <egaiffesasaBiil*aaiaiiiiMaaiHBAB£i '""- '"" FEDERAL ELECTION COMMISSION Washington, DC 20463 July 19,2004 Michael Boos, Esq. Vice President & General Counsel Citizens United 1006 Pennsylvania Avenue, S.E. Washington, D.C. 20003 Dear Mr. Boos: This refers to your letter dated July 8,2004, concerning the application of the Federal Election Campaign Act of 1971, as amended (the "Act"), and Commission regulations to the purchase of television, cable, satellite and radio airtime for commercials promoting a book and a planned documentary film.
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