Freeing Speech Now

SpeechNow.org is a new group of citizens formed to protect the First Amendment at the ballot box, but before it can do so, it must go to court to secure its own First Amendment rights. The Institute for Justice has teamed with the Center for Competitive Politics, co-founded by former FEC commissioner Bradley Smith, to bring SpeechNow.org v. Federal Election Commission to vindicate the rights of Americans to band together to advocate for or against politicians, without a limit on how much they can speak.

Created by long-time activist David Keating, SpeechNow.org is simply Americans talking to Americans about an issue of vital public importance: the right to speak freely about politics and whom to elect to secure that right. The group intends to produce and broadcast television advertisements calling for the election of candidates who support rights to free speech and association and the defeat of candidates who have opposed those rights—by, for instance, supporting campaign finance laws. In short, SpeechNow.org and its supporters want to do what the First Amendment was created to allow them to do—influence policies they care about by influencing the election of politicians who make those policies.

“Speech costs money, and letting regular folks put their small-time cash together to support a cause, or defeat candidates, seems as reasonable as the freedom enjoyed by wealthier voters. Let’s hope the courts take this opportunity to rediscover their First Amendment principles.”

– The Wall Street Journal (Editorial), February 23, 2008

Did You Know?

Under federal campaign finance laws, any time two or more people join together and spend just $1,000 to advocate for or against a candidate for federal office, they become a “political action committee,” or PAC, subject to burdensome red tape and government limits… READ MORE

The catch? SpeechNow.org is silenced by the very campaign finance laws it opposes. Under those laws, any group that spends as little as $1,000 to support or oppose a candidate for federal office must register as a “political action committee” or PAC. PACs must comply with burdensome regulations that rival the tax code in complexity and, worse, must limit the funds they raise to $5,000 from any one donor per year.

This contribution limit puts effective political speech off limits to all but the most sophisticated organizations, with dedicated fundraisers, large donor lists, and the time to raise millions in small increments.

David has prepared scripts for ads that urge voters to oppose two candidates who support campaign finance laws—Democratic Senator Mary Landrieu of Louisiana and Republican Congressman Dan Burton of Indiana—but producing the ads and broadcasting them even a few times would cost nearly $150,000. Producing ads for all the races involving candidates who support campaign finance laws would be considerably more expensive, to say nothing of reaching a national audience during the presidential race.

David is willing to donate $5,500 to SpeechNow.org, and he has lined up a few others who would donate as well, including Ed Crane, president of the Cato Institute, and Fred Young of Young Radiator in Wisconsin. With these initial donations, David would be able to produce and broadcast SpeechNow.org’s ads and get the organization up and running so he could make appeals for additional funds for additional ads in other races. The only things standing in his way are the campaign finance laws.IJ President Chip Mellor, left, discusses the implication of IJ’s challenge to campaign finance laws that burden groups of individuals who want to speak out in elections. He is joined by IJ Senior Attorney Steve Simpson, client David Keating and co-counsel in the case, Steve Hoersting, vice president for the Center for Competitive Politics.

The alleged purpose of these laws is to prevent corruption of candidates. But SpeechNow.org raises no concerns about corruption because it operates completely independently of candidates. SpeechNow.org will not make contributions to candidates or parties, and it will not coordinate its activities with them. It is not a corporation and will not accept corporate or union funds, so it raises no concerns about corporate or union influence over elections. Simply put, SpeechNow.org is a group of independent citizens who want to spend their own money on their own speech.

According to the U.S. Supreme Court, a major purpose of the First Amendment was to “protect the free discussion of governmental affairs” because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Thus, the First Amendment protects “a marketplace for the clash of different views and conflicting ideas” in which debate must remain “uninhibited, robust, and wide-open.” SpeechNow.org simply wants to compete in that marketplace of ideas. Its supporters want to associate with one another in order to amplify their voices beyond what any of them would be able to achieve on their own.

Unfortunately, clear as these principles are, SpeechNow.org cannot act without fear of fines and even jail time for speaking about politics as a group. No one should have to sacrifice the First Amendment right to associate in order to exercise the First Amendment right to speak—but that is exactly what federal campaign finance law expects of SpeechNow.org.

The Supreme Court has never squarely addressed whether groups of independent individuals like SpeechNow.org can be subjected to contribution limits—and the issue is primed for consideration. The Court has long held that individuals have a fundamental First Amendment right to speak about politics without limit, and the Court has also recognized that like-minded citizens must be free to band together to make their advocacy more effective.

SpeechNow.org v. FEC aims to vindicate speech and association rights by advancing the simple principle that just as the First Amendment guarantees individuals the right to speak about politics without limit, groups of individuals should have the same right. Freeing SpeechNow.org would pave the way for other groups of citizens to make their voices heard in elections—just as the Constitution intends.

Steve Simpson is an IJ senior attorney.