50-50 Support for the First Amendment at the FEC

Jacob Sullum | January 25, 2008

At a Federal Election Commission hearing yesterday, FEC Chairman David Mason sided with SpeechNow.org, an independent 527 organization that wants to run ads advocating the election or defeat of federal candidates based on their positions regarding campaign finance regulation. In a dissenting opinion (PDF), Mason argued that limiting contributions to the group, as FEC lawyers have recommended, would violate the First Amendment rights of its members:

Money given to SpeechNow funds the expression of members' views; it does not facilitate candidates' views. Placing limits on the money given to independent organizations serves only to limit speech—an unjustifiable result in a Republic with a profound commitment to the principle that debate should be "uninhibited, robust, and wide open."...The Supreme Court has recognized government interests in limiting corruption, or its appearance, only when that spending is connected or coordinated with candidates for public office or, in a very limited manner, because of the corporate form....Limiting the [contributions] given to an organization like SpeechNow would impose an intolerable, and constitutionally unjustifiable, burden on the independent spending of [a] citizen organization.

The only other sitting member of the six-member commission, Ellen Weintraub, voted in favor of the draft opinion (PDF) saying SpeechNow has to register as a "political committee" and abide by the contribution limits associated with that status. Without a quorum, the opinion cannot be formally adopted or rejected, but everyone expects the issue ultimately will be settled in court. Steve Simpson of the Institute for Justice, one of the attorneys representing SpeechNow, says the group is "facing the specter of fines and jail time" if it proceeds with its advertising plans, so its "only recourse is the courts."

Comments

|1.25.08 @ 11:54AM|#

*head explodes*

Jorgen|1.25.08 @ 11:57AM|#

I don't understand how anyone can see this as anything but a violation of the people's right to free speech coupled with the right to assemble.

|1.25.08 @ 12:06PM|#

I don't understand how anyone can see this as anything but a violation of the people's right to free speech coupled with the right to assemble.

I don't understand how The McCain-Feingold Incumbent Protection Act was ever ruled constitutional. I don't have a law degree, but I can read.

|1.25.08 @ 12:16PM|#

Speaking of Freedom of Speech (and also privacy), have you seen this item about ATT?

|1.25.08 @ 12:37PM|#

I don't understand how The McCain-Feingold Incumbent Protection Act was ever ruled constitutional. I don't have a law degree, but I can read.

Big supporter of McCain, huh? ;)

Amazing that an asshat like that is a front-runner to be president -- and isn't even the worst choice available.

|1.25.08 @ 12:38PM|#

No, we should have to register as speakers, much as gun owners must register. Speech is more dangerous than guns. Obviously, certain types of speakers will not be given registrations--felons, illegal immigrants, pornographers, people critical of government, and people with ideas that offend the rest of us.

Glad that's all settled. Remember, regulation is not "abridgment". Besides, freedom of "speech" all depends on how you define speech. We should define it very narrowly, to protect the incumbent and the easily offended. However, within those narrow limits, speech should be completely free!

|1.25.08 @ 1:09PM|#

PL

You know speech is dangerous.

Might cause someone to think.

|1.25.08 @ 1:10PM|#

Why no quorum? Is that suspicious?

|1.25.08 @ 1:17PM|#

Aresen,

Well, clearly, full auto thinking and assault thinking must be banned outright.

|1.25.08 @ 1:24PM|#

Well, clearly, full auto thinking and assault thinking must be banned outright.

Don't forget the waiting period on thinking.

|1.25.08 @ 1:32PM|#

You can have my thinking when you... No, wait. My cold, dead thinking is... Damn it.

|1.25.08 @ 1:32PM|#

I oppose thinking and driving, too.

BakedPenguin|1.25.08 @ 2:04PM|#

I oppose thinking and driving, too.

Of course you should. Have you seen the way people drive when their ideation level is over .1%?

|1.25.08 @ 2:14PM|#

Pro Libertate | January 25, 2008, 1:32pm | #

I oppose thinking and driving, too.

Well, there's no chance a Kennedy will ever by convicted of that.

|1.25.08 @ 2:57PM|#

I used to do a lot of thinking in college, but I find that excess thinking is not a good habit for the workplace.

|1.25.08 @ 3:17PM|#

Yada, yaddaa, yaddaaa....
People there is nothing to talk about.
The two who voted for the organization is file as, ...THE VERY EXISTENCE OF THE FEC VIOLATES THE FIRST AMENDMENT.
This a job for the Libertarian militia, but as usual, nothing will happen.
America doesn't deserve freedom anymore because it won't fight for it.
Pathetic.

Paul|1.25.08 @ 7:55PM|#

The important thing being missed here, is that they went and got permission. It would have been much worse for society had these people just gone and said whatever they wanted, without first getting a thumbs-up from an unelected body.

At least they're trying to first make sure that their speech won't hurt or offend me, or be seen as an in-kind campaign contribution.

Bryan|1.26.08 @ 11:17AM|#

J Sub D,

This has should not been seen as an indictment of McCain-Feingold. The draft interpretation is a gross misinterpretation of the statute and the relevant campaign finance case law. It will not stand-up in Court, and I don't think the pols that passed McCain Feingold would ever have intended that it would. Blaming Mc/F for this opinion would be like blaming the Muslim religion overall for 9/11. Unfortunately sometimes people views distorted views on the meaning of relatively benign text.

If I am correct, and the Court ultimately disagrees with this opinion, Mc/F can be seen as nothing but a time, place and manner restriction to speech. It is no bigger a limitation on speech than requiring a permit for a rally at the park.

So, that's my legal opinion on the statute. I do have a law degree and have read the relevant case law, although CFR is not my area of practice, so I can't say that I'm an expert on the subject.

Whether the law is beneficial from a policy standpoint though, I guess we will agree to disagree. My take is that it actually will be worse for incumbents. The theory being the largest donors typically will donate to incumbents because they are trying to get access to power. If you limit the amount that those big donors can give directly to the incumbent, that cuts their fundraising back a great deal. An upstart candidate with a broad base of support could very quickly compete with the incumbent in fundraising -- think Ron Paul this year. Like I said, we may disagree on that analysis, but it's important to keep the policy thoughts separate from the legal interpretation.