As my colleague Mike Schrimpf notes, First Amendment advocates should find much to celebrate in the majority opinion of North Carolina Right to Life v. Leake. Judge Harvie Wilkinson cleared up a multitude of vagueness problems, prevented an unaccountable board of regulators from wielding the burden of political committee status as a weapon in ideological battle, and protected groups engaging in non-electoral issue speech from unwarranted regulation.
Professor Rick Hasen also notes the similarities between the legal arguments made by NCRL in Leake and those being made by SpeechNow.org (full-disclosure: CCP attorneys jointly represent SpeechNow.org). On one level he is correct – the idea that groups making independent expenditures may not be subjected to contribution limits is at the heart of both cases. As the speech of neither plaintiff, SpeechNow.org nor NCRL’s Fund for Independent Political Expenditures (NCRL-FIPE), raise any danger of corruption, both groups should arguably be equally free of regulatory burdens.
However, the similarities between the cases end there. The first major distinction is that NCRL-FIPE accepted its designation as a political committee, while SpeechNow.org makes no such concession. SpeechNow.org argues that without a danger of corruption, any type of regulation (except for narrowly tailored disclosure provisions) must be struck down as unconstitutional. Such regulation necessarily includes political committee registration. Although relatively less burdensome than contribution limits, the burdens associated with political committee status (hiring a treasurer; disclosing private financial information) still must be justified by a legitimate governmental interest.
Leake didn’t add or detract from an idea central to SpeechNow.org: the major purpose doctrine serves as an additional protection, even for organizations that raise some potential for corruption to candidates. Judge Wilkinson states that "The Court in Buckley must have been using "the major purpose" test to identify organizations that had the election or opposition of a candidate as their only primary goal – this ensured that the burdens facing a political committee largely fell on election-related speech, rather than on political speech." Leake at 8. SpeechNow.org poses no potential for corruption. It asks how a protective doctrine like "major purpose" can become a threat and the basis for regulating an organization that raises no potential for corruption.
At what point did speech that centers on political candidates cease being protected "political speech?" SpeechNow.org makes the argument that, regardless of what an organization’s major purpose may be, there can be no restriction on speech and association without a corrupting nexus between an organization and a candidate or party.
Lastly, it’s important to remember that, although similar, Leake challenged a North Carolina state law, while SpeechNow.org seeks to free itself of the Federal Election Campaign Act edifice itself, that is, except for the reporting requirements available to organizations "other than political committees." Undoubtedly, the relative complexity of the federal code imposes a far greater burden on groups, like SpeechNow.org, that wish to speak about federal candidates.
Thus, while Leake and SpeechNow.org appear on the surface to make the same jurisprudential thrust on behalf of free speech, they do so only on the broadest level. SpeechNow.org is a case about first principles. It demands that any restriction on First Amendment rights, no matter how slight, be narrowly tailored and backed up by a judicially recognized governmental interest.
