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A Major Question Before the FEC: SpeechNow.Org’s Case for Independent Activity PDF  | Print |  Email
By Bob Bauer   
November 29, 2007

This article was posted aqt Bob Bauer's Blog and is reposted herew with permission of the author.


A new 527 has been formed, its name is, and it has asked for an FEC ruling on independent speech that could change the face of federal campaign finance law. This is very much the new committee’s intention:  its supporters are notable dissenters from the campaign finance regime, such as David Keating and Ed Crane, and its mission is to conduct independent expenditure campaigns, financed with individual funds only, on behalf of candidates who favor defending free speech by opposing statutes such as McCain-Feingold, and against candidates who perform poorly by these measure.  Counsel to SpeechNow.Org before the FEC are the Center for Competitive Politics and the Institute for Justice.’s key questions are:  if it is fully independent from candidates, and only individuals fund its activities, does its independent expenditure activity compel it to register and comply with regulatory restrictions as a "political committee"?  And if so, do the contributions that individuals make to this committee fall under the law’s contribution limits? proposes the answers—"no"— to both these questions, arguing the law in its request at length and with considerable skill. 


It would be a mistake to imagine that this challenge has been laid carelessly before the Commission, or that is smashing itself against a regulatory wall to make an ideological point.  Its case is a serious one, and it has been anticipated, for some time, that the law—now the FEC, eventually the Supreme Court—would have to address it.  Rick Hasen, a while ago, agreed that the question "Is it constitutional to limit contributions to 527s that engage solely in making independent expenditures?" was "very difficult and uncertain."  


Others might argue that it is not all that difficult and uncertain.  Independent expenditures—funding messages not coordinated with a candidate or party—have been held since Buckley to be non-corruptive, and corruption remains the ground on which regulation of financing must rest, except for the case of corporations which is not the case here, since this new 527 is unincorporated. does not ask to be excused from disclosure requirements.  It would include disclaimers on its solicitations, explaining that it is independent of candidates, and it would file the reports required of "persons," other than political committees, that make independent expenditures.  Its objection lies against any regulation beyond this that would limit the funds it could receive from individuals who, if each acted alone, would not be restricted in their personal independent spending.  If by associating through, these individuals were required to form a "political committee," this would impose on their efforts a major regulatory burden on their independent enterprise.  It would also activate the contribution limits:  the committee could not accept more, from any one of these contributors, than $5,000.00 a year.


It cannot be, contends, that constitutionally protected independence is sacrificed, and regulation imposed, by the sheer act of association.  It presses the Commission on the point that "regulating as a political committee subject to contribution limits would directly limit the ability of citizens to pool their resources and amplify their own voices. a right that is ‘entitled to full First Amendment’" (citation omitted). AOR 2007-32 at 18.  


With this same stress on associational rights, argues that, even if it is found to be a political committee, the individual contributions it receives should not be subjected to limits. cites Citizens Against Rent Control v. City of Berkeley, among other authorities:  "any limit…on individuals wishing to band together to advance their views on a ballot measure, while placing none on individuals acting alone, is clearly a restraint on the right of association." AOR 2007-32 at 17 (citations omitted; emphasis added).  The FEC is asked to accept that this axiom binds it in the case of independent committees engaging in non-corruptive independent speech.  "To interpret FECA as allowing sole individuals to make unlimited independent expenditures without registering as committees, while required groups of individuals to register, would be to interpret the statute in a manner directly contrary to CARC [Citizens Against Rent Control]."  Id. returns to the middle of the debate over campaign finance the right of association, which has been left by the side of the road, to wither, for years.


The request is interesting on various levels, and over the coming days, there will be more discussion here of the arguments it makes.  The debate before the FEC is certain to be intense; the comment docket should end up being well stocked.  Whatever the range of agreements or disagreement eventually expressed, there is no doubt that has filed one of the more important and consequential requests put before the FEC in a long time.

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