Amici Brief of Colorado Ethics Watch, CREW, Colorado Common Cause and Progressives United

No. 14-1387
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
CITIZENS UNITED,
Plaintiff-Appellant,
v.
SCOTT GESSLER and SUZANNE STAIERT,
Defendant-Appellees,
and
COLORADO DEMOCRATIC PARTY, GAROLD A. FORNANDER,
LUCIA GUZMAN, and DICKEY LEE HULLINGHORST,
Intervenor-Appellees.
On Appeal Irom the United States District Court Ior the District oI Colorado,
No. 1:14-cv-02266-RBJ
The Honorable R. Brooke Jackson
BRIEF OF !"#$# $%&#!' CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON, COLORADO COMMON CAUSE,
COLORADO ETHICS WATCH, AND PROGRESSIVES UNITED, IN
SUPPORT OF DEFENDANT-APPELLEES AND INTERVENOR-
APPELLEES
Luis A. Toro
Margaret G. Perl
COLORADO ETHICS WATCH
1630 Welton Street, Suite 415
Denver, CO 80202
Telephone: 303-626-2100
Fax: 303-626-2101
Attornevs for Citi:ens for Responsibilitv
and Ethics in Washington D/B/A
Colorado Ethics Watch
David R. Fine
Lino S. Lipinsky de Orlov
McKENNA LONG & ALDRIDGE LLP
1400 Wewatta Street, Suite 700
Denver, CO 80202
Telephone: 303-634-4000
Fax: 303-634-4400
Attornevs for Colorado Common Cause
and Progressives United
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TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT.........................................................1
STATEMENT OF INTEREST..................................................................................1
INTRODUCTION .....................................................................................................2
ARGUMENT.............................................................................................................3
I. Citizens United Does Not Face Any Injury, Much Less Irreparable
Injury................................................................................................................4
II. The Balance oI Equities Tips in Favor oI Colorado`s Disclosure
Scheme.............................................................................................................6
III. The Strong Public Interest oI Colorado Citizens Would be Harmed by
an Injunction ..................................................................................................13
CONCLUSION........................................................................................................18
CERTIFICATE OF SERVICE................................................................................19
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ......................................20
CERTIFICATE OF DIGITAL SUBMISSION.......................................................20
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TABLE OF AUTHORITIES
Page(s)
CASES
Bucklev v. Jaleo,
424 U.S. 1 (1976)............................................................................................9, 16
Burdick v. Takushi,
504 U.S. 428 (1992)............................................................................................15
Citi:ens United v. Fed. Election Commn,
558 U.S. 310 (2010).....................................................................................passim
Colo. Citi:ens for Ethics in Govt v. Comm. for the Am. Dream,
187 P.3d 1207 (Colo. App. 2008).......................................................................15
Gessler v. Colorado Common Cause,
327 P.3d 232 (Colo. 2014)....................................................................................6
Hobbv Lobbv Stores, Inc. v. Sebelius,
723 F.3d 1114 (10th Cir. 2013), affd sub nom. Burwell v. Hobbv Lobbv
Stores, 134 S. Ct. 2751 (2014)..............................................................................3
Kikumura v. Hurlev,
242 F.3d 950 (10th Cir. 2001) ..............................................................................4
Leavitt v. Jane L.,
518 U.S. 137 (1996)..............................................................................................5
McConnell v. Fed. Election Commn,
540 U.S. 93 (2003)........................................................................................16, 17
McCutcheon v. Fed. Election Commn,
134 S. Ct. 1434, 572 U.S. ¸¸¸ (2014).................................................................17
National Bank of Boston v. Bellotti,
435 U.S. 765 (1978)............................................................................................16
N.M. Youth Organi:ed v. Herrera,
611 F.3d 669 (10
th
Cir. 2010) ...............................................................................9
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Readers Digest Assn v. Federal Election Commn,
509 F. Supp. 1210 (S.D.N.Y. 1981) ...................................................................11
COLORADO CONSTITUTION
Colo. Const. art. XXVIII, § 1...................................................................................14
Colo. Const. art. XXVIII, § 2(7)(a)(II) ......................................................................7
Colo. Const. art. XXVIII, § 2(7)(a)(III).....................................................................7
Colo. Const. art. XXVIII, § 2(7)(b)(I) .....................................................................12
Colo. Const. art. XXVIII, § 2(8)(b)(I) .....................................................................12
Colo. Const. art. XXVIII § 6(1).............................................................................7, 8
Colo. Const. art. XXVIII, § 14...................................................................................6
FEDERAL STATUTES
52 U.S.C. § 30104(I)..................................................................................................7
STATE STATUTES
C.R.S. § 1-45-108(1)(a)(III).......................................................................................7
OTHER AUTHORITIES
8 C.C.R. 1505-6, Rule 11.1........................................................................................8
8 C.C.R. 1505-6, Rule 11.3........................................................................................8
8 C.C.R. 1505-6, Rule 11.5........................................................................................8
OTHER REFERENCES
Citi:ensUnited.org Frequentlv Asked Questions.................................................9, 10
Colorado Secretary oI State, '2012 Abstract oI Votes Cast¨, available at
http://www.sos.state.co.us/pubs/elections/Results/Abstract/2012/booklet.
pdI (last accessed Oct. 1, 2014) ..........................................................................14
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Colorado Secretary oI State, 'OIIicial Publication oI the Abstract oI Votes
Cast Ior the 2001 Coordinated, 2002 Primary and 2002 General¨,
available at
http://www.sos.state.co.us/pubs/elections/Results/2002/2002¸abstract.pdI
(last accessed Oct. 1, 2014) ................................................................................14
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CORPORATE DISCLOSURE STATEMENT
None oI the amici curiae is a nongovernmental entity with a parent
corporation or a publicly held corporation that owns 10° or more oI its stock.
STATEMENT OF INTEREST
Amici Curiae Citizens Ior Responsibility and Ethics in Washington
(CREW), Colorado Common Cause, Colorado Ethics Watch, and Progressives
United (collectively, 'Amici¨) are a collection oI public interest nonproIit
organizations that support campaign Iinance disclosure and regulations. Each oI
these groups has relevant experience in the enactment and enIorcement oI
campaign Iinance laws at the state and Iederal level in general, and speciIically
with regard to the electioneering communications provisions at issue in this case.
As described more Iully in the Motion Ior Leave to File an Amici Curiae
brieI Iiled contemporaneously herewith, CREW is a nonproIit organization based
in Washington, D.C. dedicated to promoting ethics and accountability in
government. Colorado Common Cause (CCC) is a state chapter oI Common
Cause, a national non-proIit citizens` advocacy group that works to ensure open,
honest and accountable government at the national, state, and local levels, and has
a long history oI advancing campaign Iinance reIorms to limit the inIluence oI
money in politics and to enact transparency via disclosure oI who is paying Ior
communications intended to inIluence voters, including as an oIIicial proponent oI
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the successIul 2002 ballot initiative that established Article XXVIII oI the
Colorado Constitution. Colorado Ethics Watch (the registered trade name oI
CREW) is a nonpartisan organization committed to enIorcement oI Colorado`s
campaign Iinance laws, which has Iiled and litigated several campaign Iinance
complaints under the private-party enIorcement system established in Article
XXVIII oI the Colorado Constitution. Progressives United is a non-proIit, non-
partisan organization Iounded by Iormer U.S. Senator Russ Feingold, co-author oI
the 2002 Bipartisan Campaign ReIorm Act, to educate policymakers, opinion
leaders, and the public about the corrupting inIluence oI unlimited and corporate
money in our political system.
No party`s counsel authored the brieI in whole or in part; and no party,
party`s counsel, or other person contributed money intended to Iund preparing or
submitting this brieI. Intervenor-Appellees and PlaintiII-Appellant have consented
to the Iiling oI this brieI. DeIendant-Appellees have taken no position on
Intervenor-Appellants' motion to intervene.
INTRODUCTION
Colorado voters spoke when they adopted by ballot initiative state
constitutional provisions declaring campaign Iinance spending disclosure to be in
the public interest. The U.S. Supreme Court spoke when it held that Citizen
United`s right to speak in the political marketplace oI ideas is not in any way
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inIringed by laws that require public disclosure oI spending and donations linked
to electioneering communications. See Citi:ens United v. Fed. Election Commn,
558 U.S. 310, 366-67 (2010) (henceIorth Citi:ens United I). Now, on the eve oI
Colorado`s state-wide election, Citizens United seeks to overrule both Colorado
voters and the U.S. Supreme Court by urging this Court to block enIorcement oI
Colorado`s 2002 electioneering disclosure law based on alleged discrimination,
even though the law simply requires the group to comply with a disclosure regime
already approved in the landmark Supreme Court decision that bears its name.
Amici urge this court to deny such a drastic remedy.
ARGUMENT
Under 'the traditional Iour-prong test Ior a preliminary injunction, the party
moving Ior an injunction must show: (1) a likelihood oI success on the merits; (2) a
likely threat oI irreparable harm to the movant; (3) the harm alleged by the movant
outweighs any harm to the non-moving party; and (4) an injunction is in the public
interest.¨ Hobbv Lobbv Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir.
2013), affd sub nom. Burwell v. Hobbv Lobbv Stores, 134 S. Ct. 2751 (2014).
Appellees` merits brieIs are expected to Iocus on the Iirst Iactor. In this case, the
second, third, and Iourth Iactors weigh heavily in Iavor oI denying the requested
injunction.
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I. Citizens United Does Not Face Any Injury, Much Less Irreparable
Injury.
Citizens United`s irreparable harm argument begins and ends with the truism
that a violation oI constitutional rights is irreparable injury. See, e.g., Kikumura v.
Hurlev, 242 F.3d 950, 963 (10th Cir. 2001). To be clear: nothing in the
electioneering communications provisions in the Colorado Constitution prevents
Citizens United Irom producing, distributing, and advertising its Iilm in Colorado
at any time oI the year. It may spend and speak at will; it merely must disclose the
amount spent and the source oI Iunding Ior its electioneering communications so
that voters can Iully assess its messages.
The problem Ior Citizens United is that the injury oI which it complains
being required to Iile electioneering disclosure reports already has been
determined by the U.S. Supreme Court not to constitute a violation oI First
Amendment rights. Citi:ens United I, 558 U.S. at 366-67. Recognizing this
inIirmity in its argument, Citizens United complains that Colorado`s law
exempting certain activities Irom the deIinition oI electioneering communication
Ior purposes oI triggering state law disclosure requirements constitutes unlawIul
discrimination based on the identity oI the speaker.
As more Iully explained in section II, Citizens United`s interpretation oI
Colorado law is wrong. Regardless, it does not Iollow that, under the Iacts oI this
case, the remedy Ior any such discrimination would be to excuse Citizens United
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Irom complying with disclosure requirements. Rather, the proper remedy would be
to strike the exemptions and to require similarly situated groups that are not
disclosing electioneering communications to Iile reports. That result would
preserve Colorado citizens` right to 'make inIormed choices in the political
marketplace,¨ Citi:ens United I, 558 U.S. at 367 (quotation omitted), while at the
same time protecting Citizens United Irom any possible discrimination.
Citizens United does not ask Ior such relieI because Citizens United is not
concerned about hypothetical media groups Iailing to disclose spending on
electioneering communications. It merely wishes to re-litigate the issue it already
lost in Citi:ens United I, when the Supreme Court ruled 8-1 that electioneering
communication disclosure laws do not oIIend the First Amendment. See id.
The record is devoid oI evidence that Colorado has permitted any media
entity to engage in electioneering comparable to that proposed by Citizens United
without requiring disclosure. Aside Irom the electioneering reporting requirement
already upheld in Citi:ens United I, 558 U.S. at 366-67, Citizens United will not
suIIer any injury Irom being subject to Colorado electioneering disclosure laws.
Were the Court to Iind unconstitutional Colorado`s law exempting certain
activities by certain actors Irom the deIinition oI 'electioneering communication,¨
Colorado law states that such provisions would be severable. See Leavitt v. Jane L.,
518 U.S. 137, 139-140 (1996). The Colorado Supreme Court recently ruled on
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severability in the context oI Colorado`s constitutional campaign Iinance
provisions at issue here. See Gessler v. Colorado Common Cause, 327 P.3d 232
(Colo. 2014). The court held that provisions oI the Campaign Finance Amendment
that may be unconstitutional in some applications nevertheless 'can be enIorced in
Iuture circumstances where such enIorcement is constitutional.¨ Id. at 236; see also
Colo. Const. art. XXVIII, § 14 ('II any provision oI this article or the application
thereoI to any person or circumstances is held invalid, such invalidity shall not
aIIect other provisions or applications oI the article which can be given eIIect
without the invalid provision or application, and to this end the provisions oI this
article are declared to be severable.¨).
Thus, even iI there could exist some scenario under which Citizens United
might suIIer discrimination as a result oI the exceptions Irom Colorado`s deIinition
oI electioneering communication, Colorado law would permit the application oI
the article in a circumstance such as this, where the spender is not suIIering any
actual discrimination. In the absence oI any evidence that groups currently are
using the exemptions to electioneer without disclosure, there is no constitutional
injury that precludes application oI Colorado law to Citizens United.
II. The Balance of Equities Tips in Favor of Colorado`s Disclosure Scheme.
By examining the actual requirements oI the Colorado electioneering
communications disclosure law, not the hyperbolic description oI the law`s
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'burdens¨ by Citizens United, it is clear that the balance oI equities tips in Iavor oI
the disclosure scheme.
Citizens United`s ability to produce its Iilms and ads, and to air them close
to the election, is unquestioned. The disclosure law is triggered when certain
activity meeting the deIinition oI electioneering communications occurs in these
last sixty days beIore the general election (or thirty days beIore a primary). See
Colo. Const. art. XXVIII, § 2(7)(a)(II).
1
The Colorado Constitution`s
electioneering communications disclosure provisions are based on the Iederal law,
52 U.S.C. § 30104(I), which was upheld as applied to Citizens United. See Citi:ens
United I, 558 U.S. at 370. Under Article XXVIII, persons who spend $1,000 or
more in a calendar year on electioneering communications must report such
spending and contributions received Ior the communications. See Colo. Const. art.
XXVIII § 6(1); C.R.S. § 1-45-108(1)(a)(III).
The required public disclosures related to that activity present a minimal
burden at most. Electioneering reports are due at the same time as committee
1
While Colorado`s electioneering communication provisions are most easily
applied to the proposed advertisements Ior the Iilm described by Citizens United, it
is possible that a television broadcast oI the Iilm itselI could meet the deIinition
(whereas distribution oI the movie through DVD sales and online would not). See
Colo. Const. art. XXVIII, § 2(7)(a)(III). Regardless, the analysis would be the
same as the U.S. Supreme Court's holding that it was also constitutional to apply
disclosure requirements to the 2008 Iilm iI its method oI distribution triggered the
deIinition oI electioneering communications. See Citi:ens United I, 558 U.S. at
371.
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reports Ior contributions and expenditures. Colorado`s electioneering disclosure
law is merely a transactional reporting scheme that does not require Citizens
United to register a committee or to comply with ongoing reporting obligations. It
is possible that Citizens United would Iile only a single report iI all spending on
advertising were conducted within the same two-week reporting period applicable
at this point in the election cycle. This straightIorward transactional report would
include three components:
1. All spending oI $1,000 or more on the electioneering communication,
including 'name, address, and method oI communication.¨ See Colo. Const.
art XXVIII, §6(1); 8 C.C.R. 1505-6, Rule 11.3.
2. 'The name oI the candidate(s) unambiguously reIerred to in the
electioneering communication.¨ See 8 C.C.R. 1505-6, Rule 11.5.
3. The names and addresses oI persons contributing $250 or more Ior
electioneering communications. See Colo. Const. art XXVIII, §6(1).
In light oI the Citi:ens United I ruling, the last oI these requirements has
been tailored Iurther when electioneering communications are made by a
corporation or labor union. Thus, Citizens United would be required only to
disclose the names oI donors who gave money 'speciIically earmarked Ior
electioneering communications.¨ See 8 C.C.R. 1505-6, Rule 11.1. The record does
not include evidence Irom Citizens United oI the harm inIlicted by compliance
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with this modest disclosure scheme. Citizens United`s website appears to advise its
donors that 'contributions can be designated Ior speciIic projects, including
speciIic Iilms.¨ Citi:ensUnited.org Frequentlv Asked Questions (last accessed
October 1, 2014) (Attachment 1 hereto). Any burden oI compliance with the
Colorado disclosure requirements would be minimal, and no evidence has been
oIIered to suggest otherwise.
Citizens United has not shown that any harm will result iI the Court denies
its request to enjoin Colorado`s disclosure requirements. When regulations require
only disclosure, campaign Iinance jurisprudence has consistently treated such
provisions with a lower level oI constitutional scrutiny because disclosure laws
pose Iar less risk oI inIringement on Iree speech than do other types oI restrictions.
See Citi:ens United I, 558 U.S. at 369 (discussing the application oI this principle
in cases Irom Bucklev v. Jaleo, 424 U.S. 1 (1976), to the present); N.M. Youth
Organi:ed v. Herrera, 611 F.3d 669, 676 (10
th
Cir. 2010) (distinguishing lower
level oI scrutiny as applied to disclosure regulations). In Iinding no constitutional
impediment to the application oI electioneering communications disclosure
requirements to Citizens United, the U.S. Supreme Court noted that there was no
evidence that donations were chilled or that donors were Iacing reprisals because
oI public Iilings. 'To the contrary, Citizens United has been disclosing its donors
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Ior years and has identiIied no instance oI harassment or retaliation.¨ Citi:ens
United I, 558 U.S. at 370.
Citizens United has not placed any evidence in the record here that
circumstances have changed since that ruling. For example, in 2013, Citizens
United produced and advertised a twenty nine-minute Iilm about the Democratic
candidate Ior governor during Virginia`s statewide election, and reported
independent expenditure spending Ior radio advertising pursuant to state law
without suIIering any harm. See Independent Expenditure Report dated September
17, 2013 (Attachment 2 hereto). Citizens United also inIorms donors that the
organization 'will disclose inIormation required by law and Irom time to time will
rent donor names to help Iinance our direct marketing eIIorts.¨ Citi:ensUnited.org
Frequentlv Asked Questions (last accessed October 1, 2014) (Attachment 1
hereto). There is no evidence in the record that Citizens United would suIIer harm
in the absence oI an injunction iI it were required to Iile disclosures similar to the
disclosures made in these other situations when the organization has released
spending and donor inIormation.
A Iinal consideration in the balance oI equities is the harm allegedly suIIered
by Citizens United Irom discriminatory treatment compared to other entities in
Colorado whose activities might meet the exceptions to the electioneering
communications provisions. Citizens United argues that various sorts oI media
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corporations are given preIerential treatment in a way that constitutes
impermissible discrimination based on the identity oI the speaker, while
simultaneously arguing that it qualiIies as such a media entity entitled to special
treatment. Citizens United urges the Court to rely upon a 2010 advisory opinion
Irom the Federal Election Commission ('FEC¨) granting 'press entity¨ status to
the organization under Iederal law. However, this determination under Iederal law
is case-speciIic and does not automatically grant Citizens United blanket
exemptions under all campaign Iinance requirements Ior Colorado, Virginia, or
any other state in which Citizens United chooses to operate.
Even iI the Court were to take the FEC advisory opinion as persuasive
authority, the Iederal exemption is not as broad as described by Citizens United
and would not lead to a Iinding that Citizens United need never Iile disclosures
under Colorado law. The Iederal two-step analysis to apply the 'press exemption¨
Irom disclosures requires both that an organization be deemed a 'press entity¨ and
that the actions taken are considered within the 'legitimate press Iunction.¨ See
Readers Digest Assn v. Federal Election Commn, 509 F. Supp. 1210, 1215
(S.D.N.Y. 1981). For example, in 2011 the FEC issued an advisory opinion that
Viacom, Inc. would be required to Iile campaign Iinance disclosures related to
political advertisements and activities that were outside the scope oI its 'legitimate
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press Iunction,¨ despite its status as a broadcasting corporation. See Federal
Election Commission Advisory Opinion 2011-11 (Colbert) (Attachment 3 hereto).
Similar to this Iederal analysis, Colorado`s law exempting certain activities
Irom the deIinition oI electioneering communication does not constitute unlawIul
discrimination based on the identity oI the speaker because it is the speaker`s
activitv not its identitv - that determines the reporting requirements. For example,
iI The Denver Post (likely a publisher or 'press entity¨ under the Iederal analysis)
purchased television airtime Ior advertisements similar to those proposed by
Citizens United, such activity would not Iit within the exception Ior 'news articles,
editorial endorsements, opinion or commentary writings, or letters to the editor
printed in a newspaper, magazine or other periodical.¨ See Colo. Const. art.
XXVIII, § 2(7)(b)(I) & §2(8)(b)(I). Thus, the Post could be required to disclose its
spending, and earmarked donations Ior such an advertisement Ialling within the
deIinition oI electioneering communications. In this example, Citizens United
would be treated the same as a media corporation speaker that it claims is
privileged Irom disclosure under Colorado`s disclosure regime.
Beyond this clear lack oI evidence in the record showing harm, the Court
cannot ignore that Citizens United waited more than two months aIter the Deputy
Secretary oI State issued her Declaratory Order beIore Iiling the instant suit. Yet,
Citizens United now cries imminent harm and demands Iast-tracked emergency
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consideration oI its claims, which may have Iar-reaching and irreparable impacts
on Colorado voters, who will start receiving ballots in approximately two weeks
and may begin voting then. This Court should consider in the balance oI equities
Citizens United`s choice to delay, as it weighs against granting the injunction
sought.
With these limited requirements oI the electioneering communications law,
the lack oI evidence in the record oI harm to Citizens United or its donors, and no
clear showing oI discriminatory treatment under the disclosure provisions, the
balance oI equities tips decidedly in Iavor oI continued enIorcement oI Colorado
law.
III. The Strong Public Interest of Colorado Citizens Would be Harmed by
an Injunction
In stark contrast to the lack oI injury or harm to Citizens United, issuing the
requested injunction would cause tangible and permanent harm to the public
interest oI the citizens oI Colorado. As the District Court noted, the U.S. Supreme
Court balanced the interests oI political speakers with the public interest oI the
electorate when deciding iI disclosure requirements were constitutional as applied
to Citizens United. (Order at 10.) 'The First Amendment protects political speech;
and disclosure permits citizens and shareholders to react to the speech oI corporate
entities in a proper way.¨ Citi:ens United I, 558 U.S. at 371.
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Granting the injunction sought by Citizens United would directly contravene
the will oI Colorado voters. In 2002, Colorado voters passed Amendment 27,
which became Article XXVIII oI the Colorado Constitution, by a 66.49 percent
vote.
2
The citizens adopted a comprehensive campaign and political Iinance
system, declaring, inter alia, 'that the interests oI the public are best served
by . . . providing Ior Iull and timely disclosure oI . . . Iunding oI electioneering
communications.¨ Colo. Const. art. XXVIII, § 1. Timely disclosure is a key
component oI Colorado`s campaign Iinance system because it serves to educate
voters and allow enIorcement oI the other provisions oI the law. The citizens oI
Colorado recently reaIIirmed the public interest in accurate inIormation regarding
political spending by adopting Amendment 65 in 2012 by a 74 percent vote.
3
This
measure charged the Colorado Congressional delegation to support an amendment
to the U.S. Constitution to limit campaign contributions and spending in an eIIort
to preserve all citizens` right to engage in political speech without having their
voices drowned out by better-Iunded speakers.
2
Colorado Secretary oI State, 'OIIicial Publication oI the Abstract oI Votes Cast
Ior the 2001 Coordinated, 2002 Primary and 2002 General,¨ available at
http://www.sos.state.co.us/pubs/elections/Results/2002/2002¸abstract.pdI (last
accessed Oct. 1, 2014).
3
Colorado Secretary oI State, '2012 Abstract oI Votes Cast,¨ available at
http://www.sos.state.co.us/pubs/elections/Results/Abstract/2012/booklet.pdI (last
accessed Oct. 1, 2014).
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Citizens United gives no weight to the interests oI Colorado citizens who
overwhelmingly voted to protect their right to cast an inIormed ballot when they
enacted Article XXVIII by popular initiative. 'It is beyond cavil that voting is oI
the most Iundamental signiIicance under our constitutional structure.¨ Burdick v.
Takushi, 504 U.S. 428, 433 (1992) (quotation omitted). The right to vote is more
than just the opportunity to cast a ballot. Fundamental in the very First Amendment
Citizens United invokes to cloak its donors and spending is the concept that an
inIormed citizenry is best equipped to govern itselI. As the Court said in Citi:ens
United I:
In a republic where the people are sovereign, the ability oI the
citizenry to make inIormed choices among candidates Ior oIIice is
essential. The right oI citizens to inquire, to hear, to speak, and to use
inIormation to reach consensus is a precondition to enlightened selI-
government and a necessary means to protect it.
558 U.S. at 339 (quotations omitted). The Court must give strong weight to
Colorado citizens` right, enshrined in the Colorado Constitution, to know who is
spending money to speak about candidates right beIore an election, and the truly
irreparable injury voters will incur iI Citizens United is permitted to spend on
electioneering communications without disclosure.
The Colorado Court oI Appeals Iound the voter intent behind Article
XXVIII disclosure requirements was to 'regulate communication designed to
inIluence the outcome oI Colorado elections.`¨ Colo. Citi:ens for Ethics in Govt
Appellate Case: l4-l387 Document: 0l0l932l078 Date Filed: l0/03/20l4 Page: 20
'- #$ %&
16
v. Comm. for the Am. Dream, 187 P.3d 1207, 1216 (Colo. App. 2008) (internal
citations omitted). 'Exempting persons . . . who regularly make electioneering
communications Ior the purpose oI inIluencing elections, Irom reporting
requirements would Irustrate Article XXVIII's purpose oI Iull disclosure.¨ Id.
(citations omitted). This is exactly what Citizens United asks this Court to do in
issuing an emergency injunction to stop enIorcement oI electioneering
communications laws with regard to its behavior and, iI the Iacial challenge is
accepted, to all persons running advertisements discussing candidates in these last
weeks oI the election. 'Even iI the ads only pertain to a commercial transaction,
the public has an interest in knowing who is speaking about a candidate shortly
beIore an election.¨ Citi:ens United I, 558 U.S. at 369. Such a strong public
interest cannot be discarded.
There is an extensive history oI campaign Iinance precedent consistently
protecting the public`s interest in disclosure without oIIending the Constitution.
See McCutcheon v. Fed. Election Commn, 134 S. Ct. 1434, 1460, 572 U.S. ¸¸¸
(2014) ('With modern technology, disclosure now oIIers a particularly eIIective
means oI arming the voting public with inIormation.¨); Citi:ens United I, 558 U.S.
at 370 ('prompt disclosure oI expenditures can provide shareholders and citizens
with the inIormation needed to hold corporations and elected oIIicials accountable
Ior their positions and supporters.¨); McConnell v. Fed. Election Commn, 540
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17
U.S. 93, 196-99 (2003) (upholding disclosures oI donation inIormation required Ior
electioneering communications); National Bank of Boston v. Bellotti, 435 U.S. 765,
792 n.32 (1978) ('IdentiIication oI the source oI advertising may be required as a
means oI disclosure, so that the people will be able to evaluate the arguments to
which they are being subjected.¨); Bucklev v. Jaleo, 424 U.S. 1, 81-84 (1976)
(upholding reporting requirements Ior independent expenditures 'Ior disclosure
helps voters to deIine more oI the candidates` constituencies¨).
An order enjoining the enIorcement oI the electioneering communications
disclosure requirements between now and the election would deny Colorado
citizens this inIormation at the very time that it is most relevant. Even iI a later
decision on the merits might someday require Citizens United to Iile disclosures
regarding the spending and donations behind the advertisements aired in October,
the harm to the public interest would not and could not be remedied. See
McConnell, 540 U.S. at 200 ('Given the relatively short time Irames in which
electioneering communications are made, the interest in assuring that disclosures
are made promptly and in time to provide relevant inIormation to voters is
unquestionably signiIicant.¨).
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18
CONCLUSION
For the Ioregoing reasons, Amici urge this Court to aIIirm the order below
and reIuse to issue the injunction sought by Citizens United to stop the application
oI the Colorado Constitution to its activities this election season.
Dated this 3
rd
day oI October, 2014.
RespectIully Submitted,
s/ Luis A. Toro
Luis A. Toro
Margaret G. Perl
COLORADO ETHICS WATCH
1630 Welton Street, Suite 415
Denver, CO 80202
Telephone: 303-626-2100
Fax: 303-626-2101
Attornevs for Citi:ens for Responsibilitv
and Ethics in Washington
D/B/A Colorado Ethics Watch
s/ Lino S. Lipinskv de Orlov
David R. Fine
Lino S. Lipinsky de Orlov
McKENNA LONG & ALDRIDGE LLP
1400 Wewatta Street, Suite 700
Denver, CO 80202
Telephone: 303-634-4000
Fax: 303-634-4400
Attornevs for Colorado Common Cause
and Progressives United
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19
CERTIFICATE OF SERVICE
I hereby certiIy that on the 3rd day oI October, 2014, a true and correct copy
oI the Ioregoing BRIEF OF AMICI CURIAE CITIZENS FOR
RESPONSIBILITY AND ETHICS IN WASHINGTON, COLORADO
COMMON CAUSE, COLORADO ETHICS WATCH, AND
PROGRESSIVES UNITED, IN SUPPORT OF DEFENDANT-APPELLEES
AND INTERVENOR-APPELLEES was electronically Iiled with the clerk oI the
court using the CM/ECF system, which will send notiIication oI such Iiling to the
Iollowing:
Theodore B. Olson
Matthew D. McGill
Amir C. Tayrani
Gibson, Dunn & Crutcher, LLP
1050 Connecticut Ave., NW
Washington, D.C. 20036
Michael Boos
Citizens United
1006 Pennsylvania Ave., SE
Washington, D.C. 20003
Martha Tierney
Edward Ramey
Heizer Paul LLP
2491 15th Street, Ste. 300
Denver, CO 80202
Daniel D. Domenico
LeeAnn Morrill
Matthew D. Grove
Kathryn Starnella
Colorado Attorney General
Public OIIicials Unit
State Services Section
1300 Broadway, 6th Floor
Denver, CO 80203
s/ Lino S. Lipinskv de Orlov
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20
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
Certificate of Compliance With Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements
1. This brieI complies with the type-volume limitation oI Fed. R. App. P.
32(a)(7)(B) because this brieI contains 4,020 words, excluding the parts oI
the brieI exempted by Fed. R. App. P. 32(a)(7)(B)(iii)
2. This brieI complies with the typeIace requirements oI Fed. R. App. P.
32(a)(5) and the type style requirements oI Fed. R. App. P. 32(a)(6) because
this brieI has been prepared in a proportionally spaced typeIace using
MicrosoIt Word 2010 in 14-point Times New Roman
s/ Lino S. Lipinskv de Orlov
CERTIFICATE OF DIGITAL SUBMISSION
I hereby certiIy that with respect to the Ioregoing:
(1) Any additional hard copies required to be submitted are exact duplicates oI this
digital submission; and
(2) This digital submissions have been scanned or viruses with the most
recent version oI a commercial virus scanning program, McAIee VirusScan
Enterprise 8.8, and according to the program are Iree oI viruses.
s/ Lino S. Lipinskv de Orlov
DN 32277291.3
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Does your question not appear above?
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No, contributions to Citizens United are not tax deductible as it is a non-profit company
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Yes, contributions can be designated for specific projects, including specific films and other
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Yes, you can contribute to Citizens United automatically each month or quarter through an
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Does your question not appear above?
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Please call us at (202) 547-5420, or email us at [email protected], or write us at Citizens
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ATTACHMENT 3
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FEDERAL ELECTION COMMISSION
Washington, DC 20463


June 30, 2011

CERTIFIED MAIL
RETURN RECEIPT REQUESTED

ADVISORY OPINION 2011-11

Trevor Potter, Esq.
Joseph Birkenstock, Esq.
Matthew T. Sanderson, Esq.
Caplin & Drysdale Chtd.
One Thomas Circle, NW
Suite 1100
Washington, DC 20005

Dear Messrs. Potter, Birkenstock, and Sanderson:
We are responding to your advisory opinion request on behalf of Mr. Stephen
Colbert concerning the application of the Federal Election Campaign Act of 1971, as
amended (the “Act”), and Commission regulations to Mr. Colbert’s plans to establish and
operate a political committee (the “Committee”). Mr. Colbert wishes to establish the
Committee to solicit and accept contributions in unlimited amounts from the general
public for the purpose of making independent expenditures. He also asks whether the
press exemption would cover costs incurred by the U.S. subsidiaries of Viacom, Inc. and
related entities (“Viacom”) for the following activities, or whether these costs must be
disclosed as contributions to the Committee:

covering the Committee and its activities on The Colbert Report (the “Show”);

producing independent expenditure advertisements for the Committee; and


administering the Committee.

The Commission concludes that Mr. Colbert may establish and operate the
Committee, which plans to solicit and accept contributions in unlimited amounts for the
purpose of making independent expenditures from individuals, political committees,
labor organizations, and corporations (but not foreign nationals, Federal contractors,
national banks, or corporations organized by authority of any law of Congress). The
Commission further concludes that while some of Viacom’s activities would fall within
the press exemption, others would not. The Show’s coverage of the Committee, and its
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production of independent expenditure advertisements used solely in the Show’s
coverage of the Committee, would fall within the press exemption. Thus, costs incurred
by Viacom in connection with these activities would not need to be disclosed by the
Committee as in-kind contributions. However, Viacom’s production of independent
expenditure advertisements provided to the Committee to distribute outside of the Show
(including airing as paid advertisements on other shows and networks or as content for
the Committee’s website), and Viacom’s administration and operation of the Committee,
would not fall within the press exemption, because these activities are not legitimate
press functions. Consequently, all costs incurred by Viacom for these activities would
need to be disclosed by the Committee as in-kind contributions to the Committee.

Background

The facts presented in this advisory opinion are based on your letters received on
May 13, 2011 and June 14, 2011.

You state that since 2005, Mr. Colbert has hosted the Show, a half-hour television
program that is distributed on cable television and through associated Internet sites. The
Show is owned, distributed, and produced by Viacom,
1
which is neither owned nor
controlled by any political party, political committee, or candidate. On the Show, Mr.
Colbert discusses political figures, issues, and news through on-air monologues and guest
interviews, as well as other methods. The Show has addressed campaign finance rules
and issues from time to time.

You state that Mr. Colbert’s activities off the set have also served as material for
the Show. For example, in 2008, the Show used Mr. Colbert’s attempt to run in the
South Carolina Democratic presidential primary election as a vehicle to discuss and
provide commentary on campaign-related issues, such as ballot access rules and
paperwork. Similarly, Mr. Colbert co-hosted the “Rally to Restore Sanity and/or Fear” in
October 2010, which the Show covered extensively to provide commentary on political
discourse in the United States. Other examples of the Show’s coverage of Mr. Colbert’s
off-set activities include: his congressional testimony on immigration, his U.S.O. Tour to
Baghdad, his public dispute with the Associated Press about the word “truthiness,” and
his sponsorship of the U.S. Speedskating Team. In all instances, these activities have
been funded by Viacom.

Most recently, Mr. Colbert discussed on the Show the idea of creating his own
political committee. To date, the idea of this Committee, which has been referred to as
the “Colbert SuperPAC” on the Show, has been a vehicle for Mr. Colbert to discuss
campaign finance rules and new developments in politics.

Mr. Colbert now plans to establish the Committee, the activities of which will be
covered on the Show and used by Mr. Colbert as an on-air premise for discussing
campaign finance rules and other aspects of American politics. Neither Viacom nor its

1
Staff of the Show are employees of Hello Doggie, a production company that produces the Show under
contract to Viacom.
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corporate management will control or direct the Committee’s activities. The Show’s
production, current format, and distribution will not be altered in covering or commenting
on the Committee.

You state that the Committee will file a Statement of Organization with the
Commission as a nonconnected committee. You represent that it will make only
independent expenditures and will not make monetary or in-kind contributions to any
candidate, political committee, or political party. It also will not coordinate its
expenditures with any candidate or political party. The Committee will solicit and accept
unlimited contributions from individuals, political committees, corporations, and labor
organizations. It will comply with all applicable requirements of the Act and
Commission regulations, including disclaimer and reporting rules.

You state that the Committee will have its own website, which will discuss
political events, offer opinions on political matters, and solicit contributions. The
Committee will pay for the costs associated with this website, as well as the Committee’s
solicitation costs and some of its other expenses, including, for example, the cost of Mr.
Colbert’s Committee-related travel and Committee mementos. Much of the cost of
operating the Committee, however, including costs to produce some of its independent
expenditure advertisements and to prepare and file the Committee’s reports with the
Commission, will be incurred by Viacom either directly, or indirectly through payments
to its vendors.

While hosting the Show, Mr. Colbert plans to refer to the Committee’s website,
describe the Committee’s operations, mention audience participation opportunities, and
air the Committee’s independent expenditure advertisements. These independent
expenditure advertisements will be created by the Show’s staff using the Show’s
production resources.

You state that these independent expenditure advertisements will be subject to
Viacom’s regular review process. This review process is performed by lawyers and
executives from Viacom. It includes a review of scripts of the Show and, where
appropriate, specific proposals or subjects regarding content of the Show, to identify legal
and commercial issues and to ensure compliance with “standards and practices” for cable
shows. This process will also apply to the Show’s coverage of the Committee. As
Executive Producer of the Show, however, Mr. Colbert is and will remain principally
responsible for formulation of the Show’s content, subject to this review process.

You state that independent expenditure advertisements created by the Show’s
staff will be aired on the Show (or posted on the Show’s website) as part of the Show’s
coverage of the Committee. Some of these independent expenditure advertisements will
be provided to the Committee to air as paid advertisements on other shows and networks.
All of the independent expenditure advertisements will remain the intellectual property of
Viacom.

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You state that the Show’s production resources and staff will also be used to
prepare and file the Committee’s reports with the Commission.

Questions Presented

1. May Mr. Colbert form an independent expenditure-only committee that accepts
unlimited contributions from individuals, political committees, corporations, and
labor organizations?

2. If the Committee is discussed on the Show, must airtime and related costs incurred by
Viacom be reported as in-kind contributions, or will these costs be exempt from
reporting requirements under the press exemption?

3. If the Committee receives in-kind contributions from Viacom, may it also solicit and
accept contributions from the general public?

Legal Analysis and Conclusions

Question 1. May Mr. Colbert form an independent expenditure-only committee that
accepts unlimited contributions from individuals, political committees, corporations, and
labor organizations?

Yes, Mr. Colbert may form a political committee that makes only independent
expenditures
2
and does not make contributions. The Committee may accept unlimited
contributions from individuals, political committees, corporations, and labor
organizations but not from foreign nationals, Federal contractors, national banks, or
corporations organized by authority of any law of Congress.

A political committee that makes only independent expenditures may solicit and
accept unlimited contributions from individuals, corporations, labor organizations, and
other political committees, but not from foreign nationals, Federal contractors, national
banks, or corporations organized by authority of any law of Congress. See Advisory
Opinion 2010-11 (Commonsense Ten) (corporations and labor organizations may
contribute without limit to political committees that make only independent
expenditures); see also Citizens United v. FEC, 130 S. Ct. 876, 913 (2010) (corporate-
funded independent expenditures are constitutionally protected speech); SpeechNow.org
v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc) (individuals may contribute without
limit to political committees that make only independent expenditures). The political
committee must register with the Commission
3
and comply with all applicable reporting
rules. See SpeechNow, 599 F.3d at 698.

2
The term “independent expenditure” means an expenditure by a person expressly advocating the election
or defeat of a clearly identified candidate that is not made in concert or cooperation with or at the request or
suggestion of such candidate, the candidate’s authorized political committee, or their agents, or a political
party committee or its agents. 2 U.S.C. 431(17); 11 CFR 100.16.

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In Advisory Opinion 2010-11 (Commonsense Ten), the Commission concluded
that a nonconnected political committee that made only independent expenditures could
solicit and receive unlimited contributions from individuals, political committees,
corporations, and labor organizations. Like Commonsense Ten, the Committee plans to
register as a nonconnected political committee, plans to make only independent
expenditures, and will not make contributions or coordinated communications. You state
that it will comply with all applicable requirements of the Act and Commission
regulations, including disclaimer and reporting rules.

Accordingly, the Commission concludes that Mr. Colbert may establish and
operate the Committee. The Committee may solicit and accept unlimited contributions
from individuals, political committees, corporations, and labor organizations, but the
Committee may not solicit or accept contributions from foreign nationals, Federal
contractors, national banks, or corporations organized by authority of any law of
Congress. The Committee must comply with all applicable reporting and disclaimer
requirements.

Question 2. If the Committee is discussed on the Show, must airtime and related costs
incurred by Viacom be reported as in-kind contributions,
4
or will these costs be exempt
from reporting requirements under the press exemption?

If the Committee is discussed on the Show, airtime and related costs incurred by
Viacom for its coverage of the Committee on the Show will be exempt from reporting
requirements under the press exemption. Costs incurred by Viacom to produce
independent expenditure advertisements aired solely on the Show will also be exempt
from reporting requirements under the press exemption. If Viacom produces these
independent expenditure advertisements for the Show and also provides these
independent expenditure advertisements to the Committee to distribute outside of the
Show (including airing as paid advertisements on other shows and networks or as content
for the Committee's website), then the costs of these independent expenditure
advertisements will be in-kind contributions by Viacom to the Committee and must be
reported as such. If Viacom produces independent expenditure advertisements directly
for the Committee for distribution outside the show, the costs of these advertisements will

3
The Committee has previously determined that such political committees may include a letter with their
Form 1 Statements of Organization clarifying that they intend to accept unlimited contributions for the
purpose of making independent expenditures. See Advisory Opinions 2010-09 (Club for Growth) and
2010-11 (Commonsense Ten) and attachments thereto.

4
Nothing in the request indicates that an in-kind contribution from Viacom to the Committee would
constitute a direct or indirect contribution or donation by a foreign national under 2 U.S.C. 441e.



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also be reportable in-kind contributions by Viacom. Finally, any costs incurred by
Viacom to administer the Committee will be reportable in-kind contributions.
5


The Act and Commission regulations define the terms “contribution” and
“expenditure” to include any gift of money or “anything of value” for the purpose of
influencing a Federal election. 2 U.S.C. 431(8)(A) and (9)(A); 11 CFR 100.52(a) and
100.111(a). The Act and Commission regulations require political committees to report
all contributions received, whether monetary or in-kind, and expenditures made during a
given reporting period. See 2 U.S.C. 434(b); 11 CFR 104.3.

Under the Act, “[t]he term ‘expenditure’ does not include . . . any news story,
commentary, or editorial distributed through the facilities of any broadcasting station,
newspaper, magazine, or other periodical publication, unless such facilities are owned or
controlled by any political party, political committee, or candidate.” 2 U.S.C.
431(9)(B)(i). Commission regulations further provide that neither a “contribution” nor an
“expenditure” results from “any cost incurred in covering or carrying a news story,
commentary, or editorial by any broadcasting station (including a cable television
operator, programmer or producer) . . . unless the facility is owned or controlled by any
political party, political committee, or candidate[.]” These exclusions are known as the
“press exemption.” 11 CFR 100.73 and 100.132. Costs coming within this exemption
are not contributions or expenditures and are not subject to the reporting requirements of
the Act or Commission regulations.

The legislative history of the press exemption indicates that Congress did not
intend to “limit or burden in any way the First Amendment freedoms of the press and of
association. [The exemption] assures the unfettered right of the newspapers, TV
networks, and other media to cover and comment on political campaigns.” H.R. REP. NO.
93-1239, at 4 (1974).

The Commission has historically conducted a two-step analysis to determine
whether the press exemption applies. First, the Commission asks whether the entity
engaging in the activity is a press entity. See, e.g., Advisory Opinions 2005-16 (Fired
Up!), 1996-16 (Bloomberg), and 1980-90 (Atlantic Richfield). Second, the Commission
applies the two-part analysis presented in Reader’s Digest Ass’n v. FEC, 509 F. Supp.
1210, 1215 (S.D.N.Y. 1981), which requires it to determine:


5
As indicated above, Mr. Colbert, who plans to establish the Committee, is and will remain principally
responsible for the formulation of the Show’s content. The Commission does not address how, if at all, the
analysis would be different in the absence of this relationship.

Additionally, the Commission assumes for the purposes of this advisory opinion that all costs incurred by
Hello Doggie to produce the Show or administer the Committee are attributable to Viacom. Therefore, the
Commission need not determine whether Hello Doggie would be making in-kind contributions to the
Committee.

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(A) Whether the entity is owned or controlled by a political party, political
committee, or candidate; and

(B) Whether the entity is acting as a press entity in conducting the activity at
issue (i.e., whether the press entity is acting in its “legitimate press function”).

See also FEC v. Phillips Publ’g, 517 F.Supp. 1308, 1312-13 (D.D.C. 1981); Advisory
Opinions 2007-20 (XM Radio), 2005-19 (Inside Track), 2005-16 (Fired Up!), and
2004-07 (MTV).

1) Is Viacom a Press Entity?

The Commission has previously determined that Viacom is a press entity. See
Advisory Opinion 2004-07 (MTV). Nothing in the facts presented by Mr. Colbert or
otherwise available to the Commission would cause the Commission to reconsider this
prior determination at this time.

2) Ownership Criteria and Legitimate Press Function

A) Is Viacom Owned or Controlled by a Political Party, Political Committee, or
Candidate?

The Commission has previously determined that Viacom is not owned or
controlled by a political party, political committee, or candidate. See Advisory Opinion
2004-07 (MTV). Nothing in the facts presented by Mr. Colbert or otherwise available to
the Commission causes the Commission to reconsider this prior determination at this
time.

B) Is Viacom Acting in its Legitimate Press Function?

The Commission considers two factors in determining whether a press entity is
acting in its legitimate press function. They are (1) whether the press entity’s materials
are available to the general public, and (2) whether the materials are comparable in form
to those ordinarily issued by the press entity. Advisory Opinions 2005-16 (Fired Up!)
(citing FEC v. Mass. Citizens for Life (“MCFL”), 479 U.S. 238, 251 (1986)) and 2000-13
(iNEXTV) (concluding that a website was “viewable by the general public and akin to a
periodical or news program distributed to the general public”).

In MCFL, the Supreme Court held that a “Special Edition” newsletter did not
qualify for the press exemption because it differed in certain “considerations of form”
from the press entity’s regular newsletter. MCFL, 479 U.S. at 250-51. Among those
“considerations of form” enumerated by the Supreme Court were the fact that the Special
Edition was not published through the facilities of the press entity’s regular newsletter
but by a staff that had prepared no previous or subsequent newsletters, and that the
Special Edition was distributed to a group far larger than the regular newsletter’s
audience. Id.
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In looking at these two factors, the Commission is also mindful that a press
entity’s press function is “distinguishable from active participation in core campaign or
electioneering functions.” Advisory Opinion 2008-14 (Melothé, Inc.). While the press
exemption covers press activity, it does not cover campaign activity, even if the
campaign activity is conducted by a press entity. See MCFL, 479 U.S. at 251
(recognizing “the distinction of campaign flyers from regular publications”); Reader’s
Digest Ass’n, 509 F. Supp. at 1214 (the press exemption would not apply where, “for
example, on Election Day a partisan newspaper hired an army of incognito propaganda
distributors to stand on street corners denouncing allegedly illegal acts of a candidate and
sent sound trucks through the streets blaring the same denunciations, all in a manner
unrelated to the sale of its newspapers”); see also McConnell v. FEC, 540 U.S. 93, 208
(2003) (commenting that the press exemption “does not afford carte blanche to media
companies generally to ignore FECA’s provisions”).

As described further below, the Show’s coverage of the Committee’s activities is
part of Viacom’s legitimate press function. The other activities proposed by Mr. Colbert,
however, would result in Viacom engaging in “active participation in core campaign or
electioneering functions” and thus do not constitute Viacom acting in its “legitimate press
function.”

1. Costs to Cover the Committee on the Show

The Commission concludes that Viacom’s coverage of the Committee on the
Show, and its production of independent expenditure advertisements used solely in the
Show’s coverage of the Committee, are part of Viacom’s legitimate press function. Thus,
the costs of those activities need not be reported by the Committee as in-kind
contributions.

Coverage of the Committee on the Show includes producing and airing segments
of the Show that discuss the Committee’s operations, the Committee’s support for or
opposition to Federal candidates, the Committee’s website, audience participation
opportunities, and the Committee’s independent expenditure advertisements. These
segments will consist of news stories, commentary, and editorials in the context of
providing a continuing premise for the Show to cover and offer commentary on campaign
finance laws and other aspects of American politics.

Under MCFL’s “considerations of form” analysis, the production and distribution
of segments of the Show featuring discussions of the Committee and the Committee’s
independent expenditure advertisements will be comparable in form to previously
produced segments appearing on the Show. For example, these segments will be
produced through the regular production facilities of the Show. Thus, the staff that
produces these segments of the Show will be the same staff that produces other segments
of the Show that do not discuss the Committee. These segments will also be subject to
the same review by Viacom as other segments of the Show. Further, these segments of
the Show will be distributed on the same cable television channel, Comedy Central, and
during the same time slot, and their content will be made available on the same website,
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as other segments of the Show. The format of the Show, which currently “discusses
political actors, issues, and news through on-air monologues and guest interviews,” will
not be altered. Therefore, Viacom will be acting within its legitimate press function
when it features on the Show discussions of the Committee, and costs incurred by
Viacom will not be in-kind contributions from Viacom to the Committee.
6


2. Costs Related to Independent Expenditure Advertisements Provided to the
Committee to Distribute Outside of the Show

The Commission concludes that Viacom would not be acting within its legitimate
press function by providing independent expenditure advertisements to the Show and also
providing the independent expenditure advertisements to the Committee, or providing
independent expenditure advertisements produced directly for the Committee to
distribute outside of the Show (including airing as paid advertisements on other shows
and networks or as content for its website). Thus, costs incurred by Viacom for this
activity would need to be reported by the Committee as in-kind contributions from
Viacom to the Committee.

As noted above, the press exemption covers press activity, not campaign activity
by a press entity. See MCFL, 479 U.S. at 251; Reader’s Digest Ass’n, 509 F. Supp. at
1214. Here, Viacom’s provision of independent expenditure advertisements to the
Committee would constitute “active participation [by Viacom] in core campaign or
electioneering functions” outside the scope of the press exemption. Advisory Opinion
2008-14 (Melothé, Inc.). This result would stretch the boundaries of the press exemption
far beyond those contemplated by Congress and the Supreme Court. See, e.g., MCFL,
479 U.S. at 251; Reader’s Digest Ass’n, 509 F. Supp. at 1214; see also McConnell,
540 U.S. at 208. Thus, based on the facts of this request, independent expenditure
advertisements provided to the Committee to distribute outside of the Show would be in-
kind contributions to the Committee.
7


3. Committee’s Administration Costs

The Commission similarly concludes that the administration of the Committee by
Viacom would constitute “active participation [by Viacom] in core campaign or
electioneering functions” and would therefore not be part of Viacom’s legitimate press
function. Thus, costs incurred by Viacom to administer the Committee would need to be
reported by the Committee as in-kind contributions by Viacom.


6
A news story, commentary, or editorial that lacks objectivity or is satirical can still be considered part of a
press entity’s legitimate press function, even if that news story, commentary, or editorial expressly
advocates the election or defeat of a clearly identified candidate for Federal office. See Advisory Opinions
2010-08 (Citizens United) and 2005-19 (Inside Track). Even if the materials produced and aired by
Viacom contain express advocacy, Viacom’s coverage of them on the Show will be covered by the press
exemption.

7
See footnote 5 above.

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There is no basis on which to conclude that the administration of a political
committee is part of the “legitimate press function” of a press entity. Accordingly, such
activities are beyond the scope of the “press exemption” and must be reported by the
Committee as in-kind contributions received from Viacom.

Question 3. If the Committee receives in-kind contributions from Viacom, may it also
solicit and accept contributions from the general public?

Yes, if the Committee receives in-kind contributions from Viacom, it may also
solicit and accept contributions from individuals, political committees, corporations, and
labor organizations (but not from foreign nationals, Federal contractors, national banks,
or corporations organized by authority of any law of Congress).

As discussed above, a political committee that makes only independent
expenditures may solicit and accept unlimited contributions from individuals,
corporations, labor organizations, and other political committees (but not from foreign
nationals, Federal contractors, national banks, or corporations organized by act of
Congress). See Advisory Opinion 2010-11 (Commonsense Ten); see also Advisory
Opinion 2010-09 (Club for Growth). The Committee’s acceptance of contributions from
Viacom would thus not bar it from soliciting and accepting unlimited contributions from
other permissible sources.

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 requestor may not rely on that
conclusion as support for its proposed activity. Any person involved in any specific
transaction or activity which is indistinguishable in all its material aspects from the
transaction or activity with respect to which this advisory opinion is rendered may rely on
this advisory opinion. See 2 U.S.C. 437f(c)(1)(B). Please note that the analysis or
conclusions in this advisory opinion may be affected by subsequent developments in the
law, including, but not limited to, statutes, regulations, advisory opinions, and case law.
The cited advisory opinions are available on the Commission’s website, www.fec.gov, or
directly from the Commission's Advisory Opinion searchable database at
http://www.fec.gov/searchao.

On behalf of the Commission,


(signed)
Cynthia L. Bauerly
Chair

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