Speak Freely

Limits on 'electioneering'

Two federal court cases may signal the demise of laws that restrict "electioneering communications" in the name of preventing political corruption.

In May a federal judge overturned a Florida law that required any group that so much as mentioned a candidate or ballot measure in a newsletter or on a website to register with the state as an "electioneering communications organization," file regular spending reports, and disclose its donors. Noting that "no court has ever upheld such a sweeping regulation of political speech," U.S. District Judge Stephan Mickle declined to break new ground. "While it is true that the legislature has the power to regulate elections," he wrote, "it does not have the power to regulate purely political discussions about elections."

And at the end of June, the U.S. Supreme Court scheduled a second round of oral arguments in a case involving an unflattering documentary about Hillary Clinton produced by the conservative group Citizens United. During the first round of arguments in March, several justices were openly skeptical that restrictions on the promotion and distribution of Hillary: The Movie—deemed an "electioneering communication" under the Bipartisan Campaign Reform Act (BCRA)—could be reconciled with the First Amendment. Now the Court wants to hear arguments about whether it should reconsider two key precedents dealing with campaign finance regulation.

One decision the Court plans to re-examine, issued in 1990, upheld a Michigan ban on the use of corporate funds to advocate for or against state candidates. The other decision, issued just six years ago, upheld BCRA's ban on "electioneering communications," defined as messages sponsored by unions, businesses, or nonprofit interest groups that mention a candidate for federal office and air close to an election. Since the Court already has restricted the reach of that provision to "express advocacy or its functional equivalent," it may now be prepared to overturn the ban completely.