A First Amendment Free Speech and Free Association Victory

The valiant defenders of liberty at the Institute for Justice and the Center for Competitive Politics have partially won a free speech, free association, and elections court case before the D.C. Court of Appeals on behalf of SpeechNow.org.  The recent U.S. Supreme Court decision in Citizens United v. FEC expanded the free speech rights of incorporated entities, including corporations, unions, and non-profits, but did not address the right of independent citizens to form an unincorporated association to pool their money and perhaps other resources to advocate a particular viewpoint at or near election time without undue restrictions administered by the Federal Elections Commission (FEC).  Those restrictions included limits on how much one person could donate to the political action committee, despite the fact that one person acting alone has no limits.  Some of these restrictions on free speech and free association were due to the infamous McCain-Feingold so-called election reform law, which was designed to protect incumbent politicians from public criticism.

A September 2009 decision by the D.C. Court of Appeals in EMILY's List v. FEC struck down a number of FEC regulations that severely limited the ability of non-profit organizations to raise and spend money for political purposes.  It ruled that such entities could raise unlimited funds for non-federal political campaigns.  If they set up a federal political action committee (PAC), for most practical purposes they could use unlimited funds as long as they do not coordinate with candidates.

Incomprehensibly, the SpeechNow.org D.C. Court of Appeals decision, however, retained some restrictions on private individuals banding together for political free speech purposes which were deemed by the U.S. Supreme Court to be too restrictive of free speech for corporations and unions.  It removed the individual limit on contributions, but it retained disclosure requirements and other regulations on political action committees. One would think that this part of the decision should not long stand, given its absurdity!

The announcement of the court case win from the Center for Competitive Politics is here and that from the Institute of Justice is here.  Bradley A. Smith, Chairman of the Center for Competitive Politics and a former FEC chairman said,

It's unfortunate that the court did not recognize how political committee status regulation by the FEC places restrictive burdens on grassroots political groups.  The court's decision means that the FEC regulatory regime will continue to favor large, established special interests over ad hoc groups of like-minded citizens who gather together to enhance their voices in politics.

I certainly agree with him.  The rise of the many small groups in the Tea Party movement will surely challenge the right of the FEC, on behalf of incumbent politicians, to make it difficult for these groups to challenge the many incumbent Senators and Representatives who will not listen to us, who look down their elitist noses at the vast majority of the American People, and who find our sovereign rights an inconvenience.  The SpeechNow.org ruling may be carried on to the Supreme Court to try to remove more FEC restrictions for unincorporated associations.  If they do so, they might lose something they have already gained, but that is quite unlikely given the Citizens United v. FEC ruling by the Supreme Court.  If they do not carry this case onward, there will soon be other cases to challenge these continued unconstitutional restrictions on our freedom of speech and on our freedom of association.

It would be best to get these issues straightened out before the November 2010 elections.  It is clear that the incumbent Democrats and perhaps some incumbent Republicans too, would like to use such FEC restrictions to prevent the People from challenging them for their wanton disregard for our individual liberties and for the financial soundness of America.  We know we can count on the Democrats playing dirty pool.  They are specialists in deception, lies, and dirty tricks in their never-ending quest for the power to subjugate the American People!