In Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), the Supreme Court applied the WRTL test (Federal Election Commission v. Wisconsin Right to Life, Inc) to determine whether the communication at issue (a film released by Citizens United entitled Hillary: The Movie) would be prohibited by the corporate funding restrictions set forth in Title II of the BCRA. 558 U.S. at 324-26.
The Court ultimately concluded that, "under the standard stated in McConnell and further elaborated in WRTL, the film qualifies as the functional equivalent of express advocacy." Id. at 326.
The Court also upheld federal disclaimer and disclosure requirements applicable to "electioneering communications," id. at 366-72, while "rejecting Citizens United's contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy." Id. at 369.
Thus, in addressing the permissible scope of disclosure requirements, the Court not only rejected the "magic words" standard urged here by CJF, but also found "disclosure requirements could extend beyond speech that is the 'functional equivalent of express advocacy' to address even ads that 'only pertain to a commercial transaction.'" Free Speech, 720 F.3d at 795.
The Court noted that although disclaimer and disclosure requirements may burden the ability to speak, they "impose no ceiling on campaign-related activities," and "do not prevent anyone from speaking." Citizens United, 558 U.S. at 366The Supreme Court in Citizens United "distinguished its application of the strict scrutiny standard to expenditure restrictions from the exacting scrutiny standard applicable to disclosure requirement provisions."
Citizens United reaffirmed the WRTL functional equivalent test's constitutionality and provided further support for the use of such a test to define express advocacy. See Free Speech, 720 F.3d at 795.
Citizens United supports the use of a functional equivalent test in defining "express advocacy."