Opinion: Speechnow, or maybe later


This article was originally on a blog post platform and may be missing photos, graphics or links. See About archive blog posts.’s effort to get a preliminary injunction against rules that prohibit 527 organizations from advocating for or against candidates has ended in failure. Here’s what the ed board had to say on the group’s lawsuit back in February:

According to federal law, two or more people who combine resources to support or oppose a federal candidate become a ‘political committee’ subject to government regulations and limits. But a lawsuit filed Thursday by the group, which had planned to air TV spots condemning Sen. Mary L. Landrieu (D-La.) and Rep. Dan Burton (R-Ind.), will reopen the question of how much freedom of speech must be curtailed in the name of legitimate campaign finance reform. SpeechNow selected Landrieu and Burton because of their support of legislation that curtails political participation by public interest groups. The ads the FEC advised against were set up as a test case of the 1974 law, and the resulting Catch-22 tautology -- you can’t agitate effectively against political speech regulations because that would require you to oppose politicians who support those regulations, which would violate political speech regulations -- was a result SpeechNow had in mind. The advisory opinion by the commission’s general counsel seems well within the language of the law. And that’s the problem. The FEC, and perhaps Congress, need to revisit the overreaching rules on campaign ads. Courts have repeatedly stated that the only compelling state interest in limiting political speech is to avoid corruption or the appearance of corruption in government -- this was the idea when the McCain-Feingold law rightly banned soft-money donations to political parties. But that is very different from a group of unaffiliated citizens trying to have their say. SpeechNow’s suit against the FEC turns on complex regulations, but it speaks to something basic: the 1st Amendment right to petition the government for redress of grievances.A victory for the group would restore some sanity to the campaign finance regulatory structure.


U.S. District Judge James Robertson disagreed, writing:

Plaintiffs’ argument presents a false syllogism that relies on a “crabbed view of corruption, and particularly of the appearance of corruption” that is at odds with Supreme Court precedent... Second, that SpeechNow cannot literally funnel contributions to candidates, and therefore cannot serve as a vehicle for the direct exchange of dollars for political favors, is not dispositive. The Supreme Court has long acknowledged that “corruption,” in the sense that word is used in campaign finance law, “extends beyond explicit cash-for-votes agreements to ‘undue influence on an officeholder’s judgment.’”... “Independence” does not prevent candidates, officeholders, and party apparatchiks from being made aware of the identities of large donors, and people who operate independent expenditure committees can have the kind of “close ties” to federal parties and officeholders that render them “uniquely positioned to serve as conduits for corruption,” both in terms of the sale of access and the circumvention of the soft money ban.

Democracy 21 president Fred Wertheimer, who filed a brief against the Speechnow request, is pleased with the decision. The Speechnow-affiliated Center for Competitive Politics is not pleased. Election law blogger Rick Hasen sees an appeal coming.

Just about a year ago, Speechnow’s Bradley Smith debated the Brookings Institution’s Thomas E. Mann in a Dust-Up on campaign finance.