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A Loss for the FEC, A Victory for the First Amendment

Posted By Hans von Spakovsky On June 2, 2010 @ 2:38 pm In Legal | Comments Disabled

Yesterday, the federal district court for the District of Columbia issued an injunction against the Federal Election Commission in SpeechNow.org v. FEC. As a former Commissioner on the FEC, many people would probably be surprised to learn that I am almost always pleased when my former agency loses a case. My view is based on what I learned from two years of trying to properly interpret and enforce the Federal Election Campaign Act (FECA), the campaign finance law that governs anyone running for Congress or the White House. That is because FECA is one of the most complex, confusing, and Byzantine federal laws in existence, and it is a law that in many instances violates the rights of free speech and association that are protected in the First Amendment.

SpeechNow.org is an association of citizens that wanted to pool their money to run independent political ads for and against candidates based on their support for the First Amendment. SpeechNow.org does not accept any money from corporations or unions and does not make any contributions to political candidates or parties. Although individuals are allowed under the First Amendment to spend unlimited amounts of money on independent political ads (which is political speech in its most basic form), if two or more individuals tried to pool their money to do exactly the same thing, the FEC classified them as a Political Action Committee. That meant that all of the registration requirements and contribution limits of FECA that govern PACs applied to SpeechNow.org, which acted as a direct and onerous limit on the association’s ability to engage in political speech.

Fortunately, all nine justices of the D.C. Circuit Court of Appeals ruled in favor of SpeechNow.org and against the FEC last March, holding that such government-imposed restrictions on participation in the political process are a violation of the First Amendment. The case was then remanded back to the federal district court. On June 1, the district court issued an injunction against the FEC that implemented the decision of the Court of Appeals. The injunction prevents the FEC from enforcing contribution limits against SpeechNow.org and its prospective donors. The FEC opposed the injunction claiming that it could be trusted to not enforce the federal law against SpeechNow.org. But as SpeechNow.org pointed out, the FEC did not agree to refrain from enforcing the law against prospective donors who were not parties to the case. This is important because the FEC, as is typical with many federal agencies, has a long history of trying to ignore and get around judgments it loses or interpretations of federal law that it does not like.

In conjunction with the Citizens United decision by the Supreme Court, this decision goes a long way towards restoring First Amendment rights that have been systematically denied over the past thirty years by so-called “campaign finance reform” laws, most of which are more correctly termed as incumbent-protection laws. The latest example of that is the DISCLOSE Act, which is a “reform” bill being pushed through Congress in a big hurry by Senator Chuck Schumer and Rep. Chris Van Hollen in an attempt to reverse the Citizens United decision in time for the November election. It just goes to show that we are in a seemingly never-ending war to stop violations of our freedom and liberties by members of Congress who exhibit no qualms about violating the Constitution or the Bill of Rights.


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