The SpeechNow Anniversary

January 29, 2013

As any public interest litigator will tell you, beating back unconstitutional government is a long-term project. Usually it is about securing small victories that, over time, add up to a much freer society. But sometimes a case comes along that gives public interest litigators a chance to score a big win for freedom, with nationwide effects that are felt almost immediately. Next month marks the three-year anniversary of one such case: v. FEC.

Regular readers of Liberty & Law may recognize that name, but even those who don’t have felt its effects. That’s because, more than any other case, shaped the nature of the political debate in the 2012 election. was a group of political activists who were concerned about the growing threat to First Amendment rights posed by campaign finance regulations. So, in 2008, they decided to pool their money to urge their fellow citizens to support candidates who stood up for the First Amendment, and to oppose candidates who supported stricter campaign finance laws. There was only one problem: Although individuals acting alone had long been permitted to spend an unlimited amount on political speech, under federal law, if two or more people pooled their money to do the same thing, they were considered a political committee and limited to contributing $5,000 each.

Represented by the Institute for Justice and the Center for Competitive Politics, challenged this irrational restriction. We argued that the First Amendment protects both the right to speak and the right to associate; if one person acting alone may speak without limits, groups of people should enjoy exactly the same right. After two years of grueling litigation, the D.C. Circuit Court of Appeals agreed and struck down the limits.

The importance of the ruling is difficult to overstate. For the first time in more than 35 years, Americans were free to band together and speak out in elections without limits. And speak out they did. The 2012 election saw the creation of hundreds of groups—dubbed “super PACs” by the media—that combined spent more than $640 million on political speech.

Despite the relentless criticism heaped on super PACs by advocates of government censorship, the only thing these groups did was engage in peaceful political advocacy—speech that is at the core of what the First Amendment was intended to protect. And while these critics hysterically claimed that super PACs were “buying” the election, November’s results demonstrated that simply spending more on political speech doesn’t guarantee electoral results; Republican-leaning groups significantly outspent their Democratic counterparts, but had little to show for it on Election Day.

Although November’s results showed that these would-be censors’ concerns were misplaced, for IJ the case was never about electoral results or partisan politics. Instead, it was about vindicating a simple, but important principle: Under the First Amendment, the government has no power to ban peaceful political expression, whether by individuals or groups. Courts have not always honored that principle—and there is still much work to be done—but after three years there can be no doubt that was a big step in the right direction.

Paul Sherman is an IJ attorney.

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