Another victory for free speech

Paul Sherman Staff Attorney, Institute for Justice
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What’s legal for billionaires to do alone, but illegal for you to do with your neighbors?  Until a federal court decision last Friday, the surprising answer was:  spend freely on political ads.

Strange as it sounds, for nearly 35 years, federal campaign finance law favored wealthy individuals over grassroots groups.  Under these laws, anytime people pooled more than $1,000 to run a political ad, they were considered a “political committee” or PAC.  Among other things, this meant the group could not accept more than $5,000 from any individual donor.

At the same time, however, the Supreme Court had long held that individuals acting alone had the right to spend as much of their own money as they wanted on political ads.  As a result, a billionaire like Bill Gates could spend millions by himself to advocate for or against a candidate, but two people who wished to join together to do the exact same thing could spend no more than $10,000.

David Keating wanted to change that.  A longtime political activist, Keating is also the founder and president of SpeechNow.org, an unincorporated nonprofit group that wants to run ads supporting or opposing federal political candidates based on their support for the First Amendment.  But even though donors had pledged more than $120,000 in seed money to get SpeechNow.org off the ground, the group couldn’t legally accept the money.  So in February 2008, with help from the Institute for Justice and the Center for Competitive Politics, SpeechNow.org took its fight to court in SpeechNow.org v. Federal Election Commission.

Last Friday, the D.C. Circuit Court of Appeals handed SpeechNow.org and its supporters the victory they’ve been waiting for.  In a unanimous “en banc” ruling by all nine of the court’s active judges, the court held that the First Amendment prohibits the government from limiting the right of individuals to pool money to fund political ads.

This blockbuster ruling will change the face of American elections.  Any group—no matter what issue they care about—can replicate SpeechNow.org’s model to raise and spend unlimited amounts of money to advocate for and against federal political candidates.  And that’s a good thing for American democracy.  By opening up new avenues for political speech, the D.C. Circuit has ensured that the American electorate in 2010 will have access to more information and more different points of view than at any time in our nation’s history.  Given the current political climate, and particularly the contentious debate over healthcare reform, Americans can expect a very vocal 2010 election season.

Beyond the speech it will unleash, 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.  That ruling sparked national controversy when the Supreme Court held that the First Amendment prohibits the government from limiting political speech by corporations and unions.  But as the D.C. Circuit recognized, the logic of Citizens United applies with unmistakable clarity to SpeechNow.org:  If corporations and unions, as associations of individuals, may speak without limit, then so too can an unincorporated association 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.

Well, almost the same rights.

The SpeechNow.org decision is not without flaws.  Although the decision struck down the contribution limits that made it impossible for SpeechNow.org to finance its ads, the group is still required to 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.  It’s difficult to see how regulations that are unconstitutionally burdensome for General Motors and the AFL-CIO are constitutional when applied to SpeechNow.org, a volunteer group that David Keating runs out of his home.

SpeechNow.org has until mid-June to decide whether it wants to appeal that part of the D.C. Circuit’s ruling to the U.S. Supreme Court.  In the meantime, however, First Amendment advocates can breathe a little easier knowing that, for the first time in over three decades, grassroots groups have the same freedom as wealthy individuals to make their voices heard.

Paul Sherman is a staff attorney at the Institute for Justice, and one of the lawyers representing SpeechNow.org.