Supreme Court to consider First Amendment challenge

One of the most important votes this election season will not take place at the ballot box.  On Friday, October 29, the Justices of the U.S. Supreme Court will decide whether to grant review in SpeechNow.org v. Federal Election Commission, a case that asks if Americans may be forced to get the government’s permission simply to speak.

SpeechNow.orgrepresented by the Institute for Justice (IJ) and the Center for Competitive Politics (CCP)wants to defend freedom of speech by speaking out against political candidates who do not support First Amendment rights.  The group allows individuals to amplify their voices by pooling their funds and buying ads that support or oppose particular candidates.

Under current federal law, however, groups like SpeechNow.org cannot speak without first registering with the government and forming heavily regulated political committees or “PACs.”  PACs are subject to hundreds of pages of federal statutes and regulations that are often as complicated as the tax code.  PACs must appoint treasurers who are legally responsible for complying with federal law; they may spend money only from designated bank accounts; they must fill out lengthy disclosure forms and detailed schedules on a regular basis and disclose what they raise or spend in federal campaigns.  PACs must even obtain permission from the FEC to disband.

In March, the U.S. Court of Appeals for the D.C. Circuit ruled that the government could not limit contributions to groups like SpeechNow.org because its independent speech poses no threat of corruption.  But the court upheld the requirement that the group become a heavily regulated PAC in order to speak

“In a free country, citizens should not have to register with government bureaucrats and comply with onerous regulations just to speak,” said CCP Chairman Bradley A. Smith, a former FEC chairman. “Americans should not have to disclose broad, non-campaign activities to the government, and they should not have to get the government’s permission to disband.”

In fact, in Citizens United v. FEC, the U.S. Supreme Court held that PAC requirements are too burdensome for corporations that simply want to spend their own money on their own speech.  Instead, the Court required corporations to comply with narrowly tailored disclosure laws requiring them to report their independent expenditures and those who fund them.  SpeechNow.org will comply with these same disclosure requirements.

“The government should not be able to burden citizens with regulations that serve no purpose other than to waste time and discourage free speech,” said David Keating, the President of SpeechNow.org.  “If PAC requirements are too burdensome for large corporations, they are too burdensome for groups like SpeechNow.org.”

Since the D.C. Circuit’s ruling in March, at least 50 SpeechNow groups have registered with the Federal Election Commission.  But because new groups have to deal with the daunting and time consuming task of organizing and registering as PACs, many Americans with something to say remain on the sidelines.

“The government requires SpeechNow groups to register as PACs for only one reason:  because they want to spend most of their money on political speech,” said Institute for Justice Senior Attorney Steve Simpson.  “But in America, the government does not get to decide that some people are spending too much money on speech.  The Court should take this case to make clear that the First Amendment prevents the government from imposing greater burdens on some groups simply because they’ve decided to speak more than others.”

The Center for Competitive Politics is a nonpartisan, nonprofit group dedicated to protecting First Amendment political rights. CCP seeks to promote the political marketplace of ideas through research, litigation and advocacy.