A Loss for the FEC, A Victory for the First Amendment

Hans von Spakovsky /

Yesterday, the federal district court for the District of Columbia issued an injunction against the Federal Election Commission in SpeechNow.org v. FEC. As a former Commissioner on the FEC, many people would probably be surprised to learn that I am almost always pleased when my former agency loses a case. My view is based on what I learned from two years of trying to properly interpret and enforce the Federal Election Campaign Act (FECA), the campaign finance law that governs anyone running for Congress or the White House. That is because FECA is one of the most complex, confusing, and Byzantine federal laws in existence, and it is a law that in many instances violates the rights of free speech and association that are protected in the First Amendment.

SpeechNow.org is an association of citizens that wanted to pool their money to run independent political ads for and against candidates based on their support for the First Amendment. SpeechNow.org does not accept any money from corporations or unions and does not make any contributions to political candidates or parties. Although individuals are allowed under the First Amendment to spend unlimited amounts of money on independent political ads (which is political speech in its most basic form), if two or more individuals tried to pool their money to do exactly the same thing, the FEC classified them as a Political Action Committee. That meant that all of the registration requirements and contribution limits of FECA that govern PACs applied to SpeechNow.org, which acted as a direct and onerous limit on the association’s ability to engage in political speech.