U.S. Supreme Court Declines to Review SpeechNow.org Free Speech Case

John Kramer
John Kramer · November 1, 2010

Arlington, Va.—SpeechNow.org-styled groups are flourishing and making an enormous impact in this election cycle.  Despite today’s denial by the U.S. Supreme Court of their petition challenging PAC regulations, SpeechNow.org achieved an important victory for First Amendment rights.

In a lower court ruling, SpeechNow.org, a group of individuals who sought to pool their money to buy ads supporting candidates with good First Amendment track records and oppose those who limit free speech, won the most important aspect of this case:  vindicating the right for individuals to join together and raise and spend unlimited funds to support or oppose candidates.  Grassroots groups of citizens, led by SpeechNow.org’s example, are now on par with wealthy individuals, corporations and unions, raising the money they need to have an effective voice in this year’s political campaigns.  Unfortunately, these groups must still navigate the thicket of PAC regulations imposed by the FEC while individuals, corporations and unions need only file minimal disclosure forms.

“Considering where we started—with severe limits on the ability of individuals to join together and pool their funds for political ads—Americans are now much freer to associate with others and speak out for and against candidates,” said Institute for Justice Senior Attorney Steve Simpson.  “The First Amendment exists in large part to allow people to influence the course of their government.  With SpeechNow.org’s victory on the books, Americans are better able to do that than ever before.”

“Since SpeechNow.org won this case in appellate court, more than 50 SpeechNow.org-styled independent groups have formed, increasing the competitiveness of campaigns,” said Center for Competitive Politics Chairman Bradley A. Smith, a former FEC Chairman.  “That alone is a pretty impressive achievement from this litigation.”

“Americans, however, should not have to register with government bureaucrats and navigate a maze of red tape to advocate for or against candidates,” Smith added.  “We’ll keep fighting to make sure more citizens can join together to communicate their views.”

Under federal law, SpeechNow.org must register with the federal government as a political committee before it may speak.  PACs are creatures of the state and are uniquely burdensome:  they must appoint treasurers who are legally responsible for complying with federal law; they may spend money only from designated bank accounts; deal with complex rules that govern how they receive and disburse funds; and they must fill out lengthy disclosure forms and detailed schedules on a regular basis.  PACs must even obtain permission from the FEC to disband.

And so SpeechNow.org, represented by the Institute for Justice (IJ) and the Center for Competitive Politics (CCP), filed the lawsuit SpeechNow.org v. FEC in February 2008, arguing that these burdens could not be constitutionally applied to a group that simply engages in independent political speech.  Two years later, in March 2010, the D.C. Circuit Court of Appeals ruled that SpeechNow.org could accept unlimited donations to fund its political ads, but had to register with the government as a PAC.  With the U.S. Supreme Court declining to review that decision, SpeechNow.org and many other groups must either comply with the onerous registration, organizational and reporting requirements that PACs face or remain silent.

“The Supreme Court held in Citizens United that corporations like General Motors and unions like the AFL-CIO couldn’t be forced to speak through PACs,” said David Keating, the president of SpeechNow.org.  “It is unfortunate that the U.S. Supreme Court refused to accept review of this case and rule that groups of ordinary citizens like SpeechNow.org have that same freedom.”

“You’re not supposed to have to register with the government before you can express your opinion, yet that is precisely what the lower court’s decision mandates,” Simpson said.  “This is a dangerous precedent that we will work to overturn until we have the kind of free, open and robust public discussions the First Amendment was designed to protect.”

Only about one percent of petitions for certiorari are granted, and this is not a ruling on the merits of SpeechNow.org’s argument.  In this case, there was no split in the circuit courts, which generally increases the chances of Supreme Court review.

“In the coming years, as more SpeechNow.org-style groups seek to exercise their First Amendment rights and face the daunting obstacle of PAC status, we are confident this issue will be revisited,” Simpson concluded.  “Ultimately, individuals will be free to band together and speak and associate with each other without first having to register with the government and continually report their political activities.”

The Institute for Justice is a nonprofit, public interest law firm that defends free speech and other constitutional rights nationwide.  The Center for Competitive Politics is a nonpartisan, nonprofit group dedicated to protecting First Amendment political rights.

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