By Paul Sherman
On September 9, the U.S. Supreme Court heard a blockbuster case that could bring a major victory for First Amendment rights over so-called campaign finance reform.
The argument came about because in June the Court ordered a second argument in Citizens United v. Federal Election Commission, the “Hillary: The Movie” case. The Court wanted to consider whether to overturn two Supreme Court decisions—Austin v. Michigan Chamber of Commerce and McConnell v. FEC—that upheld bans on corporations, including nonprofits, spending their own money on their own speech.
Immediately, IJ began deploying legal, media and research resources to make the most of this unusual opportunity. On the very day the court made its announcement, IJ released a study that documents the critical need to rein in government-imposed speech regulations that have flourished since the Court’s decision in McConnell.
The study is the first to examine the impact of “electioneering communications” laws—the regulations at issue in McConnell and Citizens United—on ordinary nonprofit groups. The study shows that these laws impose heavy regulatory burdens on nonprofits, most of which lack the resources to comply. Locking Up Political Speech: How Electioneering Communications Laws Stifle Free Speech and Civic Engagement by Duke University political scientist Dr. Michael Munger is available at www.ij.org/citizensunited.
We featured this research in a friend-of-the-court brief for the reargument of Citizens United, urging that Austin and McConnell should be overturned because the regulation of independent political speech inevitably leads to widespread government censorship.
We also made our case in the court of public opinion for a return to robust protections for free speech. As IJ Senior Attorney Steve Simpson told the National Law Journal, “Under the First Amendment, the government has no business deciding which speakers gain admittance to the marketplace of ideas.”
A critical part of our communications strategy was to counter the scaremongering of “reformers” who warned of opening the floodgates to corporate speech. Nationally syndicated columnist George F. Will picked up on this argument, quoting Steve, “Freeing corporate speech will lead to what more speech always leads to—a debate. Wal-Mart will support President Obama’s health-care reform, as it has done, but the National Retail Federation will oppose it, as it has done . . . . Corporations do not speak with one voice any more than individuals do.”
Based on the September 9 argument, First Amendment advocates have reason to hope Austin and McConnell, two cornerstones of political speech regulation, will be overturned.
Although this would be an important first step, in order to truly free political speech the Court must reconsider three decades of bad campaign finance precedent. Luckily, it may have the chance to do so soon in SpeechNow.org v. FEC, a case being litigated jointly by IJ and the Center for Competitive Politics. SpeechNow.org challenges federal laws that require any group of people that wants to speak independently about candidates to become a “political committee” and abide by strict limits on the amount of money they may accept. These 30-year-old laws make it nearly impossible for independent groups to raise the money to speak effectively. SpeechNow.org is currently on the fast track to a hearing before all nine active judges on the D.C. Circuit Court of Appeals, the very last stop before the U.S. Supreme Court.
Thirty years of campaign finance “reform” have done serious damage to the First Amendment, but through strategic research, amicus briefs and our own constitutional litigation, IJ is at the forefront of the fight to restore the right to free speech.
Paul Sherman is an IJ staff attorney.