The Next Big Campaign Finance Case
Arlington, Va.—Last week, the U.S. Supreme Court ruled that corporations may fund independent political ads without government-imposed limits. Tomorrow (Wednesday, January 27, 2010), a federal appeals court will consider whether individual Americans who join together to fund political ads share that same unrestricted freedom of speech. This will be the first case in which a lower court considers the impact of last week’s Citizens United decision on other provisions of campaign finance laws.
SpeechNow.org v. Federal Election Commission, litigated together by the Institute for Justice and the Center for Competitive Politics, will be heard at 9:30 a.m. by the entire U.S. Court of Appeals for the D.C. Circuit. The argument will take place in Courtroom 20 at 333 Constitution Ave., N.W., in Washington, D.C.
The individuals who came together to form SpeechNow.org want to advocate the election of federal candidates who favor free speech and the defeat of those who favor speech restrictions in the name of campaign finance “reform.” SpeechNow.org is completely independent of any political party or candidate. It will not contribute to candidates or parties; its members and supporters simply want to spend their own money on their own independent speech. Federal law, however, requires SpeechNow.org to establish a separate “political action committee” in order to speak, under which the group would be subjected to extremely burdensome rules and limits on the amounts of money it can raise from donors and thus spend on its speech. These limits and red tape—which the U.S. Supreme Court just described as a type of prior restraint on speech—make it virtually impossible for independent groups like SpeechNow.org to raise funds and to speak effectively to voters.
“The Constitution guarantees individuals the right to speak without limit,” said Institute for Justice Senior Attorney Steve Simpson, who will argue the case on behalf of SpeechNow.org. “Last week, the Supreme Court held that corporations enjoy that same right. Yet the FEC perversely maintains that a group of individuals who join together in an unincorporated association may be subjected to burdensome rules and regulations and limits on the amounts they can contribute to their common efforts. This is a flagrant violation of the right of association.”
Simpson said, “The First Amendment guarantees not only the right to speak individually, but the right to band together in support of a common cause. Under the First Amendment, individuals, not the FEC, get to decide how to organize themselves in order to speak most effectively. They cannot be compelled to choose between their right to freedom of speech and their right of association.”
IJ Senior Attorney Bert Gall said, “The FEC argues that the more effective speech is, the more it can be regulated. Under that reasoning, the only people who would be allowed to speak about candidates are those who have no hope of influencing anyone else. But as Chief Justice Roberts said in his concurring opinion in Citizens United, ‘The First Amendment protects more than the individual on a soapbox and the lonely pamphleteer.’”
“Speech is not corrupting” said Stephen M. Hoersting, vice president of the Center for Competitive Politics and co-counsel for SpeechNow.org. “Speech may influence the outcome of elections and even what candidates say and do. But as the Supreme Court made clear last week, that is the whole point of speaking out during elections. Groups like SpeechNow.org pose no threat of corruption—they pose only a threat to incumbents and the status quo.”
“Billionaires and Hollywood moguls, as well as corporations and unions after Citizens United, can speak out about candidates without limit,” said Bradley A. Smith, a former FEC Chairman who chairs the Center for Competitive Politics. “Grassroots groups like SpeechNow.org must be able to join together for the same purpose without FEC rules and regulations governing when and how much they can speak.”
“As individuals, we can’t affect elections or policies, and that’s why Americans must be free to join together, pool our resources, and advocate for federal candidates who agree with us and against those who do not,” said SpeechNow.org President David Keating. “Speaking out to fellow citizens about important issues in order to influence the outcome of elections is a fundamental American right. But without being able to raise money to pay for ads, free speech is reduced to a whimper.”
Institute for Justice Staff Attorney Robert Frommer said, “Political Action Committees must fill out dozens of forms, keep track of every single penny that they receive or spend, and are subject to the constant threat of audits, fines, and even potential jail time. These complex and confusing regulations make speaking out an insider’s game, available only to those who can afford to hire lawyers and accountants. In America, the only thing you should need to speak out is an opinion.”
“The SpeechNow.org case demonstrates that so-called reformers’ chief complaint about Citizens United—that campaign finance restrictions are needed to muzzle corporate political speech—is bogus; they want to silence anyone who seeks to effectively speak out in elections, including ordinary Americans who join together to run ads,” added Chip Mellor, president and general counsel of the Institute for Justice. “SpeechNow.org is not a corporation, yet the FEC and the reform crowd still argue that it should be regulated in exactly the same way as corporations were before Citizens United.”
The Institute for Justice is a non-profit, public interest law firm that defends free speech and other constitutional rights nationwide. The Center for Competitive Politics is a non-profit organization formed to educate the public on the actual effects of money in politics, and the results of a more free and competitive electoral process.