Yesterday, National Journal‘s “Rules of the Game” column featured an update on campaign finance litigation by CCP and other groups.
According to National Journal, “conservatives who champion the First Amendment” — side note, we think no one should object to “champion[ing] the First Amendment — “have mounted more than 20 challenges to election laws in both federal and state court recently, according to a recent analysis (er, rant) by the Campaign Legal Center.”
The piece references SpeechNow.org v. FEC, a case brought by an upstart independent political speech organization that can’t get off the ground without adequate funding, so it is being legally represented in its constitutional challenge to regulation by the Federal Election Commission by CCP and the Institute for Justice. Factual briefing in the case has been completed, and it’s now before a federal district judge, who will collect the factual record and certify the constitutional questions at issue before sending the case up to the en banc U.S. Court of Appeals for the D.C. Circuit.
The National Journal‘s story is a bit off; SpeechNow.org’s claims do not raise any question about the constitutionality of limiting — indeed, even prohibiting, as federal law does — corporate- or union-funded express advocacy. Rather, SpeechNow.org is an organization of like-minded individuals who simply want to pool their own funds and use eachothers’ talents to speak out about how their elected representatives have respected, or disrespected, Americans’ First Amendment rights to free political speech and association.
From its very founding, SpeechNow.org has made it clear that it will not accept any corporate or union donations, and that it also will not interact with candidates and public officials at all — other than to comment on how they address the First Amendment rights of their constituents. In other words, SpeechNow.org is precisely the type of organization that raises no possibility of corruption or its appearance, and thus constitutionally cannot be subject to FEC regulation as a “political committee.”
This is the primary point of the SpeechNow.org v. FEC litigation, as well as a consistent theme that runs through the Supreme Court’s campaign finance jurisprudence.
The National Journal piece misses the mark on this, but nevertheless gets the far more general point about the importance of the case to the rapidly developing decisions in the campaign finance area right.
Here’s the relevant section on SpeechNow.org:
Even more significant could be the SpeechNow challenge. In that case, a First Amendment advocacy group dubbed SpeechNow.org argues that it should be allowed to expressly advocate the election or defeat of federal candidates using unregulated money. That means the group would be subject to neither contribution limits nor to the ban on direct corporate and union treasury funding.
“This is a case that is potentially a fundamental challenge to Buckley v. Valeo itself,” said former FEC chairman Trevor Potter, at the Brennan Center conference, referring to the landmark 1976 ruling that upheld contribution limits. Potter is president of the Campaign Legal Center and heads the political activity law practice at Caplin & Drysdale.
“That case could be a blockbuster,” concurred First Amendment advocate Bradley A. Smith, another former FEC chairman who is now a professor at Capital University Law School in Columbus, Ohio. Smith is backing the SpeechNow challenge as chairman of the Center for Competitive Politics. The key question with SpeechNow and other pending cases, noted Smith, is how broadly or narrowly the high court rules.
“Is the Roberts court going to be aggressive here?” he asked. “Or are they going to keep moving at a slow and incremental pace?”
