SpeechNow.org Gets Its Day in Court

By Paul Sherman

When David Keating founded SpeechNow.org, he wanted to create a group that would allow ordinary people to band together and amplify their voices. SpeechNow.org would collect contributions from individual U.S. citizens and use that money to run independent ads for or against political candidates based on their position on the First Amendment. There was only one problem: Under federal campaign finance laws, David’s plan was illegal.

Although individuals have long been permitted to spend unlimited amounts of their own money on independent political ads, groups like SpeechNow.org are considered “political committees” and subject to a host of restrictions, including limits on how much money a group’s supporters may contribute to fund its speech. In other words, because of speech-squelching campaign finance laws, SpeechNow.org was not able to criticize the very candidates who supported those laws. So in February 2008, SpeechNow.org and its supporters joined with the Institute for Justice and the Center for Competitive Politics to strike down these restrictions on their First Amendment rights.

On January 27, in a rare en banc hearing, all nine active judges of the D.C. Circuit Court of Appeals heard argument in SpeechNow.org v. Federal Election Commission.

The timing could not have been better. Just six days earlier, the U.S. Supreme Court handed down its landmark ruling in Citizens United v. FEC, striking down a federal law that prohibited corporations and unions from running independent political ads. The Supreme Court’s reasoning in Citizens United applies with even greater force to SpeechNow.org—if it is unconstitutional to limit speech by General Motors and the AFL-CIO, then it has to be unconstitutional to limit the ability of ordinary citizens to band together and spend their own money on their own speech.

The importance of the Citizens United ruling to SpeechNow.org’s case was not lost on the judges of the D.C. Circuit. After IJ Senior Attorney Steve Simpson took the podium to begin his argument, he had not said a word before Chief Judge David Sentelle asked, “What can you add to what [Citizens United author] Justice Kennedy said, Mr. Simpson?” The judges were also acutely aware of the First Amendment stakes in the case. At one point, Chief Judge Sentelle flatly told the government’s attorney defending the law, “You don’t seem to value [the] First Amendment . . . very highly, Counsel.”

January’s argument was an important and long-awaited step towards victory for SpeechNow.org. What happens next is up to the D.C. Circuit. There is no way to predict when they will hand down their ruling in the case, but we hope they will do so sooner rather than later. Regardless of what the D.C. Circuit decides, we won’t stop fighting until SpeechNow.org—and all Americans—have regained their First Amendment rights.

Paul Sherman is an IJ staff attorney.