Does Free Association Limit Free Speech?

Jacob Sullum | November 30, 2007

SpeechNow.org is a "nonpartisan independent speech group that supports free speech and associational rights." It is not a corporation (not even the nonprofit sort). It does not take money from corporations or from labor unions. It does not give any money to politicians. It is not affiliated with any party or candidate, and it does not coordinate its activities with any political campaigns. But it does want to publicly criticize politicians who attack freedom of speech and publicly praise politicians who support freedom of speech, pooling the resources of its members to purchase TV and radio ads for that purpose. Is SpeechNow.org therefore a "political committee," legally required to register as such and to decline donations that exceed statutory limits? Or is it a group of Americans exercising their First Amendment rights? Separately, they would be free to spend as much as they wanted on independent advocacy, condemning and lauding public officials at will. Should the fact that they choose to join together, exercising their freedom of association, trigger speech limits that otherwise would be clearly unconstitutional?

Those are the questions that SpeechNow.org, through lawyers from the Institute for Justice and the Center for Competitive Politics, has posed to the Federal Election Commission. Bob Bauer, a campaign law expert and prominent critic of the current system, calls it "one of the more important and consequential requests put before the FEC in a long time." He notes that "SpeechNow.org 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."