50-50 Support for the First Amendment at the FEC

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."