SpeechNow Can Now Speak

For the past two years, readers of Liberty & Law have followed the long, hard fight of SpeechNow.org, the nonprofit group that wants to protect free speech at the ballot box by promoting or opposing candidates based on their support for the First Amendment. We are happy to report that its long fight has resulted in victory. On March 26, in a unanimous “en banc” ruling by all nine active judges, the D.C. Circuit Court of Appeals held that the First Amendment prohibits the government from limiting the right of individuals to pool money to fund political ads.

The ruling will allow SpeechNow.org
to go through with its plans to run political ads against candidates who have supported so-called campaign finance “reform.” But the victory is not limited to SpeechNow.org. Any group—no matter what issue they care about—can now replicate SpeechNow.org’s model to raise and spend unlimited amounts of money to advocate for or against federal political candidates. As a result, the victory ensures that the American electorate in 2010 will have access to more information and more varied points of view than at any time in our nation’s history. Given the current political climate, and particularly the contentious debate over health-care reform, Americans can expect a very vocal 2010 election season.

Beyond the speech it will foster, the ruling is also noteworthy as one of the first to consider the impact of the U.S. Supreme Court’s recent decision in Citizens United v. FEC, which held that the First Amendment prohibits the government from limiting political speech by corporations and unions. As the D.C. Circuit recognized, the logic of Citizens United applies with unmistakable clarity to SpeechNow.org: If corporations and unions may speak without limit, then so too can a group of individuals like SpeechNow.org. Indeed, critics of the Citizens United ruling should applaud the decision in SpeechNow.org, because it ensures that individuals have the same rights as corporations and unions.

Although it is a tremendous victory for free speech, the SpeechNow.org decision was not without flaws. Even though the decision struck down the contribution limits that made it impossible for SpeechNow.org to finance its ads, the group must still register as a PAC and comply with numerous other burdensome regulations. These are the very same regulations that the Supreme Court held in Citizens United were too burdensome for corporations and unions. The D.C. Circuit’s ruling on this point is impossible to square with Citizens United—regulations that are unconstitutionally burdensome for huge organizations like General Motors and the AFL-CIO have to be unconstitutionally burdensome for a small volunteer group like SpeechNow.org.

SpeechNow.org has until June 24 to decide whether it wants to appeal to the U.S. Supreme Court that part of the D.C. Circuit’s ruling. In the meantime, the Institute for Justice and our co-counsel, the Center for Competitive Politics, have filed papers with the D.C. Circuit to ensure that SpeechNow.org can begin running its ads immediately. Don’t be surprised if you see one in an election near you.

Paul Sherman is an IJ staff attorney.