Chairman’s Dissent Says Limits on Independent Citizens Groups Unconstitutional
In a public hearing today, Federal Election Commission Chairman David M. Mason argued that the U.S. Constitution prohibits the FEC from imposing the contribution limits faced by "political committees" on SpeechNow.org, a new independent speech group that wishes to advocate for or against federal candidates on the basis of their support for free political speech.
"Limiting the contribution limits given to an organization like SpeechNow would impose an intolerable, and constitutionally unjustifiable, burden on the independent spending of this citizen organization," wrote Mason in a draft "dissenting opinion" released at the hearing. In oral remarks, he said that the proposed activities of SpeechNow.org, a group of individual citizens independent of corporations, unions, candidates and parties, are analogous to independent expenditures by individual citizens-which are constitutionally protected and not bound by government limits.
Mason therefore voted against adopting a draft "advisory opinion" issued Tuesday that would silence SpeechNow.org. Commissioner Ellen L. Weintraub voted in favor of adopting the opinion. But without a quorum, the commissioners can neither officially adopt the opinion, nor approve SpeechNow.org’s operational plan by the legal deadline of January 28. That leaves SpeechNow.org without the legal protection it sought by asking for an FEC opinion, and therefore vulnerable to a future enforcement action if it speaks.
"SpeechNow.org now faces the ‘choice’ of speaking and risking fines and jail time or staying silent," said Steve Simpson, Institute for Justice senior attorney. “That is a choice the First Amendment cannot tolerate. We are glad that at least one Commissioner recognizes that the Constitution ought to protect SpeechNow.org’s speech, but the bottom line is that SpeechNow.org has no real option but to seek vindication of its rights to free speech and association in the courts.”
Indeed, both commissioners agreed that this is an important matter that will ultimately be determined by the courts.
The draft advisory opinion asserts that SpeechNow.org and similar groups must organize and register as "political committees" and may not accept contributions larger than $5,000 per calendar year. The opinion would for the first time explicitly extend the full array of federal campaign finance regulations to groups of individual citizens acting independently of candidates and parties without corporate or union support.
"Americans must be free to band together to convince our fellow citizens who to elect-and who to defeat-at the ballot box," said David Keating, president of SpeechNow.org. "But that right is in grave danger if even a completely independent group of citizens must submit to federal regulation in order to speak."
"Under the draft opinion’s reasoning, any group of citizens that simply speaks out in favor or against candidates is subject to government limits and regulation," said Bradley Smith, chairman of the Center for Competitive Politics. "That would be a severe blow to freedom of speech and association."
SpeechNow.org is a nonpartisan independent speech group with a new form of organizational charter. Under that charter, SpeechNow.org will accept only individual, not corporate or union, contributions. It also bans donations to candidates and political parties and requires the disclosure of all donations and expenditures to the FEC within 48 hours of speech urging election or defeat of a federal candidate. The Institute for Justice and the Center for Competitive Politics represent SpeechNow.org.
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A draft of Commissioner Mason’s dissenting opinion can be found HERE.