SpeechNow.org v. FEC argument update

Lawyers for SpeechNow.org and the Federal Election Commission squared at the D.C. Circuit Court of Appeals Wednesday morning, clashing over the implications of the U.S. Supreme Court’s recent ruling in Citizens United v. FEC.

Lyle Denniston of SCOTUS Blog has a comprehensive analysis:

… the D.C. Circuit Court appeared on Wednesday to be leaning strongly toward giving even more freedom to campaign groups that are set up to operate independently of candidates and parties.  From the opening moment of the 65-minute hearing, most of the nine judges on the en banc Court treated the Supreme Court’s ruling in Citizens United v. Federal Election Commission as the beginning, not the end, of expansion of those freedoms.  When an FEC lawyer tried to bring up, and rely on, older precedents, he was reminded repeatedly that those came before Citizens United.

The FEC’s associate general counsel, David Folker, argued that Citizens United had nothing to do with campaign contributions, focusing only on spending by independent groups (specifically, in that case, corporations).  But each time he attempted to make the point, the judges returned their focus to the supposed scuttling of a corruption justification for restrictions.  Steven M. Simpson, the lawyer for SpeechNow.org, sought to reinforce the impression that the Supreme Court had not spoken only about freedom to spend.  “It is not appropriate to call Citizens United an  expenditure case; it is a burden case” – that is, a case against government-imposed burdens on political activity by independent groups.

At one point, Chief Judge David B. Sentelle, responded to FEC justifications of regulation without a clear corruption interest: “You don’t seem to value the First Amendment very highly.”

“I’m defending the Act,” Folker responded.

SpeechNow.org filed its advisory opinion with the FEC  in 2007. The FEC’s denial of their request to avoid unconstitutional burdens on their speech prompted this challenge, and SpeechNow.org has been waiting for more than two years for a court to affirm that it should be able to speak out on campaigns like individuals can (as well other associations such as corporations and unions now can after Citizens United).

The Associated Press Supreme Court correspondent Mark Sherman also provided coverage of the hearing:

In the first court hearing since the Supreme Court ruling on campaign finance regulations, a federal appeals court seemed poised Wednesday to strike down additional limits on money in politics.

The U.S. Circuit Court of Appeals for the District of Columbia gave every indication it would make it easier for independent advocacy groups to raise money for use in campaigns for president and Congress.

The Center for Competitive Politics legal resources page on SpeechNow.org is here. The Institute for Justice’s case page is here.

The joint release by IJ and CCP, which co-represent SpeechNow.org, on the hearing is here.

The Center for Competitive Politics is now the Institute for Free Speech.