Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
September 10, 2004
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2004-30
Michael Boos, Esq.
Vice President & General Counsel
Citizens United
1006 Pennsylvania Avenue, S.E.
Washington, D.C. 20003
Dear Mr. Boos:
This responds to your letter dated July 8, 2004, as
supplemented by your letter of July 22 and additional
communications, requesting an advisory opinion concerning
the application of the Federal Election Campaign Act of
1971, as amended (the "Act"), and Commission regulations to
Citizens United's plans to buy television time to air a
documentary film about presidential candidate John Kerry and
his vice-presidential running mate, John Edwards, within
sixty days before the general election on November 2, 2004.
You also ask about the application of the Act and Commission
regulations to Citizens United's plans to advertise both the
film and a book about Mr. Kerry on television and radio
within sixty days before the upcoming general election.
Background
The discussion below provides information about
Citizens United, Citizens United's proposed documentary film
and proposed advertisements for the film and book, and
Citizens United's assertion that it is a member of the news
media.
Citizens United. Citizens United is a Virginia non-
stock corporation exempt from Federal taxes under Section
501(c)(4) of the Internal Revenue Code. Citizens United was
established in 1988 "to promote social welfare through
informing and educating the public on conservative ideas and
positions on issues, including national defense, the free
enterprise system, belief in God, and the family as the
basic unit of society."1 Citizens United's Mission
Statement states that Citizens United seeks to accomplish
this goal "[t]hrough a combination of education, advocacy,
and grass roots organization."
In support of your advisory opinion request, you
provided the Commission with a copy of an affidavit that was
executed by David N. Bossie, the president of Citizens
United, and used in litigation challenging the Bipartisan
Campaign Reform Act ("BCRA").2 According to the Bossie
Affidavit, Citizens United "represents its views, and the
views of its members and contributors, on legislative and
public policy issues before federal, state, and local
officials and the general public." Bossie Affidavit at 2.
Citizens United "engages in, including spending significant
funds for, communications on such issues during campaigns
for election to federal office." Id. The district court in
McConnell recognized that "the principal function [of
Citizens United] is the dissemination of information
concerning [its] beliefs and advocacy."3
You state that Citizens United accepts donations from
corporations and individuals. It is not owned or controlled
by any political party, political committee or candidate
committee.
Citizens United is an incorporated membership
organization for purposes of the Act, and it has established
a separate segregated fund ("SSF"), the Citizens United
Political Victory Fund. Citizens United's SSF has
contributed to the re-election campaign of President Bush,
and you state that it has communicated its support of the
Bush re-election campaign to members of its restricted
class. You indicate, however, that Citizens United does not
wish to finance any television broadcasts of the proposed
film, or any of the proposed advertisements at issue here,
through its SSF. Furthermore, you state that Citizens
United does not intend to establish a new SSF for the
purpose of making these communications.
The Film. You state that Citizens United plans to
produce and market a documentary film that will focus on the
lives and careers of presidential candidate John Kerry and
vice-presidential candidate John Edwards (the "Film").
Although still in the planning stage, you anticipate that
the Film will be between 60 and 80 minutes in length, that
it will include numerous visual images of Senator Kerry and
Senator Edwards, and that it will mention both candidates'
names throughout. You state that the Film may also include
visual images and the names of other Federal candidates but
will not expressly advocate the election or defeat of any
Federal candidate.
You state that Citizens United will own the copyright
for the Film, and that Citizens United will be responsible
for the Film's content. Citizens United plans to make the
Film available to the public in three different ways:
through movie theaters; through DVD and videocassette sales;
and by purchasing television airtime to broadcast the Film
in its entirety in certain markets.
Citizens United also plans to produce and air
advertisements for the Film in various television, cable,
satellite and radio markets in the United States. These
advertisements have not yet been prepared. Nonetheless, you
anticipate that they will include visual images of Senator
Kerry and Senator Edwards and that they will mention the
candidates' names, but that they will not expressly advocate
the election or defeat of either candidate.
The Book. Mr. Bossie has written a book about Senator
Kerry, entitled, The Many Faces of John Kerry, Why This
Massachusetts Liberal Is Wrong for America (the "Bossie
Book"). The Bossie Book was published earlier this year by
WND Books, a publisher not affiliated with Citizens United,
and has been released for sale across the country.
You state that Citizens United proposes to market the
Bossie Book, even though Citizens United does not own any
rights to the Bossie Book, has not entered into any
contractual arrangements with Mr. Bossie or with WND Books
regarding the Bossie Book, and receives no book royalties.
Citizens United has, however, entered into an agreement with
Amazon.com, an on-line bookseller, under which Citizens
United receives a small commission on certain sales of the
Bossie Book by Amazon.com. Specifically, Citizens United
receives this commission only if the purchaser accesses the
Amazon.com website through a pop-up advertisement and
hypertext link on the Citizens United website.4 Citizens
United does not receive a commission on any other sales of
the Bossie Book, such as, for instance, sales made to
purchasers who gain access to Amazon.com without first going
through the Citizens United website, sales made through WND
Books's website, or sales made through bookstores.
You state that Citizens United is considering producing
and airing advertisements for the Bossie Book in various
television, cable, satellite and radio markets throughout
the United States. Currently there are no scripts, outlines
or treatments for the advertisements, but you anticipate
that the advertisements will follow a certain format:
television advertisements will display the cover of the
Bossie Book, which shows the title of the Bossie Book and
three photographs of Senator Kerry; radio advertisements
will refer to the Bossie Book by title and will include
other references to Senator Kerry; all of the
advertisements, both television and radio, will direct
viewers and listeners to the Citizens United website,
through which they can purchase the Bossie Book from
Amazon.com; and none of the advertisements will expressly
advocate the election or defeat of Senator Kerry or any
other candidate for Federal office.
Citizens United and the News Media. You state that
Citizens United considers itself to be part of the news
media. As support, you state that Citizens United paid for
a nationally syndicated radio talk show in the mid-1990s
hosted by Citizens United's then-president, Mr. Floyd Brown,5
and that Citizens United is currently negotiating with the
owner of an Internet broadcasting company to provide
"regular news/issue programs" on the Internet. You also
state that Citizens United and Citizens United Foundation
(the "Foundation"), which is a tax-exempt organization under
26 U.S.C. 501(c)(3), have published and disseminated various
types of informational and editorial materials. Recent
examples of these materials include newsletters, position
papers, paid "television editorials," a "webmercial,"
several "investigative reports/policy papers," court
filings, and "numerous op-eds" that have been published in
such newspapers as the Washington Times. To the best of
your knowledge, however, neither Citizens United nor Mr.
Bossie has ever sought or acquired press credentials.
You state that Citizens United and the Foundation
recently paid to produce and place advertisements in
magazines and on the Internet for two other books. The
books are entitled, Intelligence Failure: How Clinton's
National Security Policy Set the Stage for 9/11
("Intelligence Failure"), and Hand of Providence: The Strong
and Quiet Faith of Ronald Reagan. Citizens United entered
the same type of agreement with Amazon.com pertaining to the
sale of these two books as it has entered in connection with
the Bossie Book. Citizens United did not finance any
television or radio advertisements for either of the
previous books.
You have provided us with a copy of a full-page
magazine advertisement for Intelligence Failure paid for by
Citizens United. A picture of the book's cover, bearing the
book's title and a photograph of former President Clinton,
occupies roughly one-quarter of the page. The remaining
three-quarters of the page feature statements and quotations
criticizing the Clinton administration for alleged
intelligence failures. Comparatively small print at the
bottom of the page informs readers that the book is
"available www.citizensunited.org and at bookstores
everywhere."
You state that Citizens United and the Foundation also
produced and sold two video documentaries during the late
1990s. The video documentaries are entitled, Sinister
Secrets of the U.N. and Confidential Report: Bill Clinton,
Al Gore and the Communist Chinese Connection. The videos
were marketed primarily through direct mail and print
advertising. Citizens United did not finance any television
or radio advertisements for the videos, nor did it finance
any television or radio broadcasts of the videos themselves.
Citizens United understands, however, that certain local
access cable channels broadcast both videos.
Questions Presented
1. Would Citizens United's proposed television broadcasts
of the Film be electioneering communications within the
meaning of the Act and Commission regulations?
2. Would Citizens United's proposed television and radio
advertisements for the Film and the Bossie Book be
electioneering communications within the meaning of the Act
and Commission regulations?
Legal Analysis and Conclusion
Both Citizens United's proposed television broadcasts
of the Film and its proposed television and radio
advertisements for the Film and the Bossie Book would be
electioneering communications as defined in 2 U.S.C.
434(f)(3)(A)(i) and 11 CFR 100.29.
Subject to certain exceptions, an electioneering
communication is any broadcast, cable or satellite
communication that refers to a clearly identified candidate
for Federal office and is publicly distributed for a fee
within 60 days before a general, special or runoff election
for the office sought by the candidate, or within 30 days
before a primary or preference election for the office
sought by the candidate. See 2 U.S.C. 434(f)(3) and 11 CFR
100.29; see also Advisory Opinion 2004-15. For presidential
and vice- presidential candidates, "publicly distributed"
means that the electioneering communication is disseminated
for a fee through the facilities of a television station,
radio station, cable television system, or satellite system,
and that it can be received
(1) by 50,000 or more people in a State where a primary
election or caucus is being held within 30 days; or (2) by
50,000 or more people anywhere in the United States from 30
days before a presidential nominating convention to the end
of the convention; or
(3) anywhere in the United States within 60 days before the
general election. 2 U.S.C. 434(f)(3)(A)(i); 11 CFR
100.29(b)(3)(ii); and Advisory Opinion 2004-15; see also
2 U.S.C. 434(f)(3)(C).
The television broadcasts of the Film and the
television and radio advertisements that you describe in
your request would be electioneering communications because
they meet all of the elements of 2 U.S.C. 434(f)(3) and 11
CFR 100.29. The proposed Film and the proposed
advertisements would refer to Senator Kerry, who is a
clearly identified candidate for Federal office. See 11 CFR
100.29(a)(1). The proposed Film and advertisements would be
publicly distributed because you intend to pay television
and radio stations to air or broadcast them, and because
they would be able to reach people in the United States
within 60 days before the upcoming general election. 6 See
11 CFR 100.29(a)(2) and (b)(3)(i).
Furthermore, the proposed Film and advertisements do
not fall within any of the six exceptions to the term
"electioneering communications." See 2 U.S.C.
434(f)(3)(B)(i)-(iv) and 11 CFR 100.29(c)(1)-(6). First,
the Film and advertisements would be disseminated through
broadcast, cable or satellite communication.7 Second, they
would not be reportable expenditures or independent
expenditures.8 Third, they would not constitute a candidate
debate or forum or promotion of such an event. Fourth, they
would not be communications by local or State candidates.
Fifth, they would not be made by entities organized under 26
U.S.C. 501(c)(3) because they will be made by Citizens
United itself, and not by the Foundation.
Finally, the proposed Film and the proposed
advertisements are not entitled to the media exception under
2 U.S.C. 434(f)(3)(B)(i). See also 11 CFR 100.29(c)(2).
The media exception excludes from the term "electioneering
communication" any communication "appearing in a news story,
commentary, or editorial distributed through the facilities
of any broadcast, cable, or satellite television or radio
station, unless such facilities are owned or controlled by
any political party, political committee, or candidate." 11
CFR 100.29(c)(2); see also 2 U.S.C. 434(f)(3)(B)(i) (the "EC
media exception").
The Media Exception and Advertisements for the Bossie
Book
Citizens United has no greater commercial interest in
promoting the Bossie Book than does any other entity that
might choose to advertise the Bossie Book on its website
under the Amazon Associates Program. It is not the
publisher of the Bossie Book; it is not the owner of the
Bossie Book; and it is not the distributor of the Bossie
Book. These facts distinguish the present situation from
those addressed in Reader's Digest Association, Inc. v.
Federal Election Commission, 509 F. Supp. 1210 (S.D.N.Y.
1981) ("Reader's Digest"), Federal Election Commission v.
Phillips Publishing, Inc., 517 F. Supp. 1308 (D.D.C. 1981)
("Phillips"), and Advisory Opinions 2004-7 and 2003-34, in
which the parties were in the business of either publishing
(Reader's Digest and Phillips), or producing and
distributing (Advisory Opinions 2004-7 and 2003-34) the
products that they were promoting.
Thus, Citizens United's proposed advertisements for the
Bossie Book would not qualify for the EC media exception for
two reasons. First, the advertisements would not "appear in
a news story, commentary, or editorial." 2 U.S.C.
434(f)(3)(B)(i). Second, given that Citizens United is not
acting as a media entity in connection with the Bossie Book,
its advertising of the Bossie Book cannot be considered part
of a "normal, legitimate [media] function." Phillips, 717
F. Supp. at 1313.
The Media Exception and the Film
Although the Commission has stated that the phrase
"news story, commentary and editorial" in the EC media
exception includes documentaries,9 not every "documentary"
is entitled to the EC media exception. In Federal Election
Commission v. Massachusetts Citizens for Life ("MCFL"), 479
U.S. 238 (1986), the Supreme Court rejected the argument
that corporate publications are automatically exempt from
the statutory prohibition on corporate and labor union
expenditures in connection with Federal elections, under an
exception for "any news story, commentary or editorial
distributed through the facilities of any broadcasting
station, newspaper, magazine, or other periodical
publication" (the "press exemption"). 2 U.S.C. 431(9)(B)(i)
and 11 CFR 100.132; see also 2 U.S.C. 441b. The Supreme
Court concluded that "a contrary position would open the
door for those corporations and unions with in-house
publications to engage in unlimited spending directly from
their treasuries to distribute campaign materials to the
general public, thereby eviscerating [the statutory]
prohibition." MCFL, 479 U.S. at 251.
The MCFL Court analyzed a variety of factors that
differentiated MCFL's "Special Edition" publication from
the newsletters regularly issued by MCFL. The Court focused
on "considerations of form," such as how the Special Edition
was produced and to whom it was disseminated, because "it is
precisely such factors that in combination permit the
distinction of campaign flyers from regular publications."
Id. On the basis of these considerations, the Supreme Court
concluded that the Special Edition was not eligible for the
press exemption.
Applying the MCFL analysis to the facts here, the
Commission concludes that the proposed Film would not be
entitled to the EC 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, both of which it
marketed primarily through direct mail and print
advertising, and neither of which it paid to broadcast on
television. Indeed, the very act of paying a broadcaster to
air a documentary on television, rather than receiving
compensation from a broadcaster, is one of the
"considerations of form" that can help to distinguish an
electioneering communication from exempted media activity.
The Media Exception and Advertisements for the Film
The proposed advertisements for the Film would not
qualify for the media exception for two reasons. First, the
advertisements would not "appear in a news story,
commentary, or editorial." 2 U.S.C. 434(f)(3)(B)(i).
Second, given our conclusion that Citizens United would not
be acting as a media entity in connection with the Film and
that the Film is not entitled to the media exception,
Citizens United's advertising of the Film cannot be
considered part of a "normal, legitimate [media] function."
Phillips, 717 F. Supp. at 1313.
Taking all of the preceding factors into account, the
Commission concludes that Citizens United's proposed
television broadcasts of the Film and its proposed
television and radio advertisements of the Film and the
Bossie Book would be electioneering communications.
Accordingly, the statutory and regulatory requirements
governing electioneering communications, which prohibit
corporations such as Citizens United from making or
financing electioneering communications, would apply.10 See
2 U.S.C. 434(f); 2 U.S.C. 441b(a) and (b)(2); 11 CFR 104.20;
and 11 CFR 114.14(a) and (b).
The Commission's conclusion does not restrict Citizens
United from engaging in the same type of production and
promotional activity in which it has historically engaged.
Citizens United may advertise the Bossie Book in print
media, on the Internet, and by direct mail, without being
affected in any way by the electioneering communication
provisions of either the statute or Commission regulations.
Citizens United may also produce a documentary on any
subject and advertise and disseminate the documentary
through direct mail, print advertising, videocassette and
DVD sales, the Internet, and in theaters, without being
affected by the electioneering communication provisions.
The Commission expresses no opinion regarding Citizens
United's qualification for tax exempt status under 26 U.S.C.
501(c) or the tax ramifications, if any, of the proposed
activities under the Internal Revenue Code. Such questions
are outside of the Commission's jurisdiction.
This response constitutes an advisory opinion concerning
the application of the Act and Commission regulations to the
specific transaction or activity set forth in your request.
See 2 U.S.C. 437f. The Commission emphasizes that, if there
is a change in any of the facts or assumptions presented and
such facts or assumptions are material to a conclusion
presented in this advisory opinion, then the requester may
not rely on that conclusion as support for its proposed
activity.
Sincerely,
(signed)
Bradley A. Smith
Chairman
Enclosures (AOs 2004-15, 2004-07, and 2003-34)
ADVISORY OPINION 2004-30
CONCURRING STATEMENT OF REASONS
CHAIRMAN BRADLEY A. SMITH
On September 9, 2004, the Commission adopted this
advisory opinion, which applied the Federal Election
Campaign Act of 1971, as amended (the Act) to the proposed
activities of Citizens United. That group planned to buy
television time to air a documentary critical of
presidential candidate John Kerry and his running mate John
Edwards, and to advertise the film and a book critical of
Mr. Kerry. These broadcast activities would occur within 60
days of the presidential election, raising the question
whether they would be prohibited electioneering
communications under 2 USC 434(f)(3)(A)(i) and 11 CFR
100.29, or whether they qualified for the exemption for
news, commentary or opinion - the "press exemption" at 2 USC
434(f)(3)(B)(i) and 11 CFR 100.29(c)(2).
The Commission has advised Citizens United that the
proposed broadcasts are in fact "electioneering
communications" and as a corporation Citizens United may not
make them. I joined my colleagues in approving this advice
because I believe this is how our courts would presently
construe the exemption for a "news story, commentary, or
editorial distributed through the facilities of any
broadcast, cable, or satellite television or radio station .
. ." I write separately to indicate yet again that a
strict construction of the press exemption could implicate a
variety of independent activities.11
The scope of the press exemption has been considered in
only a handful of cases. Most recently, the Supreme Court,
in rejecting an argument that the McCain-Feingold campaign
law unfairly favored the press over other speakers,
construed the exception narrowly: "The provision exempts
news and commentary only; it does not afford carte blanche
to media companies generally to ignore FECA's provisions.
The statute's narrow exemption is wholly consistent with
First Amendment principles" McConnell v. FEC, 124 S. Ct.
619, 697 (2003). More to the point, in Massachusetts
Citizens for Life the Court interpreted the exemption in
light of other "considerations of form" so that the press
exemption would not provide corporations and labor
organizations with a way around the expenditure ban. FEC v.
Massachusetts Citizens for Life, 479 U.S. 238 (1986).
Accordingly, our Advisory Opinion finds that Citizens United
may not benefit from the press exemption for broadcasting
its documentary because of a lack of record producing
documentaries, and because it was to pay for the
broadcasting of the documentary, rather than be paid by
broadcasters for the right to use it. Also, Citizens United
may not pay for advertisements for Mr. Bossie's book because
those expenditures would not "appear in a news story,
commentary or editorial" and would not be part of a normal
media function. The protection of the press exemption is
thus more accessible to traditional, established media than
to other groups, and more likely to protect "news,
commentary and editorials" by those entities than other
kinds of activities.
As the documentary and book advertisements are not
protected by the press exemption of 2 U.S.C. 434(f), it
would appear that they are also not protected by the general
press exemption of 2 U.S.C. 431(9)(B)(i), which uses
substantially identical language. That being the case, if
they were to expressly advocate the election or defeat of a
federal candidate, the production and distribution costs
would seem to entail numerous violations of the law,
including the ban on corporate expenditures, 2 U.S.C. 441b;
the disclosure provisions of 2 U.S.C. 441d; reporting
requirements of 2 U.S.C. 434; and perhaps various
organizational and registration requirements of 2 U.S.C. 432
& 433.
Authors, their publishers, and the public at large
should consider the implications of applying the press
exemption in this narrow fashion. Documentaries and books
as such are not specified as exempted activities in the Act,
which refers in pertinent part specifically to, "a news
story, commentary, or editorial distributed through the
facilities of any broadcast station.;" 2 U.S.C.
434(f)(3)(B)(i), and, "any news story, commentary, or
editorial distributed through the facilities of any
broadcasting station, newspaper, magazine, or other
periodical publication. ." 2 U.S.C. 431(9)(B)(i). Thus,
under a narrow approach, it may be that the publication and
promotion of a number of popular books are vulnerable to a
similar result, for instance Bill Press, Bush Must Go: The
Top Ten Reasons Why George Bush Doesn't Deserve a Second
Term (Dutton Books), or John E. O'Neill and Jerome R. Corsi,
Unfit for Command: Swift Boat Veterans Speak Out Against
John Kerry (Regnery Publishing). These could be subject to
government regulation (and potentially suppression) under
the campaign finance laws, because they appear to expressly
advocate the defeat of a clearly identified federal
candidate, and are produced and promoted by corporations.
Books by politicians could meet the same fate. See Howard
Dean, Winning Back America (Simon and Schuster); John F.
Kerry, A Call to Service: My Vision for a Better America
(Viking). The same could be said of politically charged
documentaries - to the extent they expressly advocate the
election or defeat of a candidate for federal office, their
production and promotion may violate the corporate
expenditure ban.
Other proposed legal standards not present before us
now, which have been prominently advocated, could lead to
more aggressive regulation of such activities. For example,
under the expansive definition of "express advocacy" favored
by some of my colleagues, the production and promotion of
Michael Moore's movie Fahrenheit 911 may have been banned
completely, if these activities were financed by
corporations. Similarly, a recent regulatory proposal
before the Commission, supported by many prominent campaign
finance regulatory advocates, including Democracy 21, the
Campaign Legal Center, and Senator John McCain, could
potentially have censored Moore's movie regardless of
whether or not it contained "express advocacy," if it was
found to be produced and distributed by corporations with
the "major purpose" of influencing a federal election. See
Federal Election Commission, Minutes, August 19, 2004, at 9
(vote on motion to approve Agenda Document No. 04-75-A,
Alternative Proposal for Final Rules Regarding "Political
Committee" Status, Submitted by Commissioners Thomas and
Toner.)
As noted above, the courts' present approaches to the
press exemption consider aspects of the speaker's business
that raise the issue of whether it is a "bona fide" media
company, even though such an inquiry is not obviously
entertained under the Act.12 Here, the fact Citizens United
planned to pay for the time, and hence not make a profit
from the enterprise was a "consideration of form" of note,13
as was its minimal record in media.14 The exemption extends
to establishment media, which are generally owned by large
corporations, and which are large, powerful operations in
and of themselves, more easily than to small, upstart,
independent outlets of expression. This general result is
ironic, if only because the original rationale for the
Progressive-Era corporate expenditure ban was to limit the
power of large corporations in the political arena.
___________/s/_______________________________________9/9/04_
_____________
Bradley A. Smith, Chairman Date
_______________________________
1 Citizens United Articles of Incorporation, Art. II(A).
2 Declaration of David N. Bossie, President of Citizens
United, on behalf of Plaintiffs Citizens United and Citizens
United Political Victory Fund ("Bossie Affidavit"), in
McConnell v. Federal Election Commission, 251 F. Supp. 2d
176 (D.D.C. 2003), aff'd in part and rev'd in part,
McConnell v. Federal Election Commission, 540 U.S. 93, 124
S.Ct. 619 (2003) ("McConnell").
3 McConnell, 251 F. Supp. 2d at 224.
4 Any website owner willing to include a specially formatted
link on its website may enter these agreements under the
Amazon Associates Program. According to Amazon.com, "over
900,000 members" have already done so.
http://www.amazon.com/gp/browse.html/103-8193470-
6651057?node=3435371.
5 Mr. Brown has also served as chairman of the board of
directors of "the research and lobby organization Citizens
United" since 1988.
http://www.reaganranch.org/leadership/bios/floyd_brown.htm.
6 The Commission is not addressing the part of your advisory
opinion request that asks about the application of the Act
and Commission regulations to the airing of paid
advertisements for the Bossie Book and for the Film within
30 days before the 2004 Democratic National Convention.
Your request was not completed until July 30, 2004, after
the Democratic National Convention had ended. See 11 CFR
112.1.
7 For example, advertisements using print media (including
newspapers or magazines or mailings), and advertisements and
films distributed over the Internet (including e-mails), are
not electioneering communications. See 11 CFR 100.29(c)(1);
see also Advisory Opinion 2004-07.
8 You have stated that the proposed Film and the proposed
advertisements would not expressly advocate the election or
defeat of any candidate for Federal office and would not be
coordinated with any candidate for Federal office, any
candidate's authorized committee, any party committee, or
their agents. See 11 CFR 100.22, 109.20 and 109.21.
9 See Explanation and Justification for Electioneering
Communications, Final Rules, 67 Fed. Reg. 65,190, 65,197
(Oct. 23, 2002)
10 The electioneering communication source restrictions do
not apply to any corporation that is a qualified nonprofit
corporation ("QNC") under 11 CFR 114.10. See 2 U.S.C.
441b(c)(2) and 11 CFR 114.10(d)(2). The Commission assumes
that Citizens United is not a QNC, however, because your
request states that Citizens United "accept[s] contributions
from a variety of sources, including . . . corporations."
See
11 CFR 114.10(c)(4)(ii).
11 See Concurring Statement of Reasons of Chairman Bradley A.
Smith and Commissioner Michael E. Toner, MUR 5467 (Michael
Moore, Lion's Gate et al.) August 2, 2004.
12 The Act simply exempts "commentary," with no regard to
whether or not it is paid. Taken literally, this would seem
to exempt all political advertising from the restrictions of
FECA. Of course, nobody advocating a narrow statutory
construction wants to take a strict approach in this regard,
and it is generally presumed that the exemption doesn't
apply to citizens who are not part of the established press
corps.
13 However, note that the statute does not require that
periodicals seek to turn a profit, and a great many
prominent political periodicals are published with no
intention that they ever break even. A few periodicals
published by non-profits, usually at a loss, include Reason,
Commentary, National Review, Tikkun, Foreign Policy, and
Foreign Affairs.
14 This criteria would have resulted in the censorship of
Phyllis Schlafly's influential 1964 political tract, A
Choice, Not an Echo, and any self-published books some
enterprising individual may decide to publish and sell.