OPINION: Why Free Speech Is At Risk For 1 Million Americans


Dan Backer Contributor
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Fun fact: There are roughly 512,000 state and local elected officials in America.

If you assume, between primary and general elections, each has an average of one opposing candidate, we’re talking roughly one million Americans who care enough about their communities and our country to participate in political life.

And as a “thank you,” our federal campaign finance law limits their First Amendment right of free speech in the political process.

You see, each and every one of these Americans is denied the same political rights afforded to you and me — not to mention rich and powerful political elites — the right to directly participate in independent expenditures (IEs) for federal candidates.

Fortunately, Nancy Mace is standing up for freedom of speech. On Election Day, state representative Mace won re-election in her race for South Carolina’s House District 99 seat., capturing 62 percent of the vote. Mace, who once ran for U.S. Senate herself, wants to form a federal “Super PAC,” to raise money in support of conservative female candidates for federal office.

There’s only one problem: The Federal Election Commission (FEC) told Mace she couldn’t form the super PAC, simply because she’s a state officeholder.

Mace is now caught in a web of government obstruction that ensnares all state and local officeholders, and candidates for those offices, who wish to participate in our federal political process as well.

Under the Bipartisan Campaign Reform Act (BCRA) of 2002—commonly called McCain-Feingold—there is a little-known provision that prohibits state and local officeholders and candidates from receiving and directing so-called “soft money.” The thinking was soft money circumvented contribution limits and injected unlimited money into political parties.

When Congress banned national parties from accepting soft-money contributions, they also banned state parties from transferring soft money to national parties or using it themselves for federal elections. They also did the same for state and local elected officials and candidates.

The Supreme Court even upheld the ban in 2003, when its McConnell v. FEC ruling suggested soft money could be used to bypass federal contribution limits. Thankfully, the government’s ability to regulate speech willy-nilly has since been restrained by a wiser Court, which has held only actual — or apparent — quid-pro-quo corruption can justify restraints on independent-expenditure speech. 

Citizens United — and the cases that followed — distinguished old-fashioned, Clinton-style “soft money” from newly protected IE speech, and required the highest standard to regulate the latter. 

So, while the BCRA might still be able to prevent individuals like Mace from raising and forwarding on soft money to national parties, the law is constitutionally prohibited from preventing her from forming super PACs that make their own independent expenditures.

The Supreme Court’s 2014 ruling in McCutcheon v. FEC further reaffirmed restrictions on political speech — especially IE speech — are subject to the highest standard. I would know; I represented plaintiff Shaun McCutcheon, whose First Amendment rights were upheld by a Supreme Court that struck down the BCRA’s longstanding aggregate campaign contribution limits as unconstitutional.

Mace has a simple goal: To support women who wish to advance conservative causes in elected office. But the government is standing in her way, which is why I’m representing her in suing the FEC to defend free speech and level the playing field. As it stands now, the law does little more than concentrate power in the hands of the rich and powerful.

Political elites are entitled to as much speech as anyone else, of course, but they’re not constrained by the ban on state and local officeholders and candidates. Unelected bureaucrats are essentially restricting the flow of ideas — the cornerstone of American democracy — when there is no governmental interest in doing so.

In this case and in all cases, we need more speech, not less. America’s electoral system is not sustainable without the active engagement of her citizens in the political debates of the day. When the government erects barriers to such engagement, America becomes less free.

Let’s stand with Nancy Mace, and more than one million fellow Americans of both parties who deserve to have their voices heard, and whose right to do so should not be infringed. Let’s stand for free speech — now and always.

Dan Backer is the founder and president of the Coolidge Reagan Foundation and the founding attorney of political.law.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.