On Friday, the Court of Appeals for the District of Columbia struck another blow towards restoring every American’s First Amendment right to engage in political speech. In SpeechNow.org v. Federal Election Commission, the court applied the Supreme Court’s recent decision in Citizens United to throw out another pernicious portion of the federal campaign finance law also known as McCain-Feingold.
SpeechNow is an unincorporated association of individuals that wanted to run independent ads in the 2008 election that supported candidates for federal office that shared their views on the First Amendment right of free speech and freedom to assemble. However, federal law limited the amount of contributions that could be made to the association because the FEC considered SpeechNow to be a political action committee or PAC. Individuals are limited to giving no more than $5,000 in contributions to a PAC in a given year.
SpeechNow argued that this contribution limit violated the First Amendment rights of its members because it limited their independent political advocacy. Why? Well, the Supreme Court has previously held that the First Amendment allows unlimited independent political expenditures by an individual. Thus, if I want to spend $50,000 of my own money taking out an ad in the Wall Street Journal urging people to vote for Senator Jefferson Smith because he is willing to filibuster pork-barrel, special interest legislation, Congress cannot limit the amount I want to spend on such political speech. There is a disclosure requirement – most people don’t realize that if you spend more than $250 on such independent advocacy, you have to report it to the FEC
However, let’s assume you didn’t have the $50,000 required to purchase a quarter page of the Wall Street Journal. But you could afford to spend $10,000 and you had four friends who were just as impressed with Senator Smith who were also willing to contribute $10,000 each. One would think, given the First Amendment’s protection of free speech and associational rights, that what one person can do in terms of political speech, several people acting together should also be able to do. Prior to this decision, however, you would have been wrong.
Those five friends acting together to buy a political ad that a single individual could legally purchase would be violating federal law and subject to severe civil and criminal penalties. The FEC, applying federal campaign finance law, would characterize those five friends as having formed a PAC. Since PAC’s are limited to no more that $5,000 a year in contributions from an individual, you and your four friends would be considered by the FEC and the Justice Department to have violated federal law by contributing $10,000 each to buy this independent political ad.
The D.C. Court of Appeals quite properly threw out these federal limitations on an association of individuals engaging in political speech and advocacy, although it upheld the disclosure requirements that apply. So SpeechNow will still have to report its independent expenditures to the FEC. In addition to being unconstitutional, making it illegal for individuals acting together to engage in political activity that any one of them could legally undertake as individuals makes no sense. The SpeechNow case is another great decision for everyone who understands that the very core of the First Amendment is the protection of the right to engage in political speech, a principle that too many in Washington who call themselves “reformers” want to override.