The Score: First Amendment Two – Book Banners Zero

Citizens United v. FEC made clear that political speech cannot be limited simply because the speakers have organized themselves under a corporate form. It was just one short year ago that the case was argued for the first time before the Supreme Court, and the federal government shockingly asserted that it could ban books.

One year later we have seen the First Amendment vindicated not once, but twice – first in Citizens United and now in SpeechNow.org v. FEC. Last week, the United States Court of Appeals for the District of Columbia Circuit protected the rights of individuals to donate to groups wishing to exercise their right to political speech.

In SpeechNow.org v. FEC a political organization sought to “promote the First Amendment rights of free speech and freedom to assemble by expressly advocating for federal candidates whom it views as supporting those rights and against those whom it sees as insufficiently committed to those rights.”

The organization planned to solicit funds from individuals and use those funds to run independent expenditures “expressly advocating the election or defeat of a clearly identified candidate.”

Helmed by David Keating, SpeechNow was poised to aggressively raise funds and bring its message to the public. SpeechNow.org had asked the FEC whether it must register as a political committee. If so, SpeechNow would have been subject to federally imposed contribution limits. Though the FEC lacked sufficient Commissioners to issue an opinion, a draft advisory opinion was provided “stating that SpeechNow would be a political committee and contributions to it would be subject to the political committee contribution limits.”

Believing those contribution limits to be unconstitutional SpeechNow filed suit. It’s the efforts of SpeechNow to defend its rights that brought us to this victory for free speech. Contribution limits to independent expenditure organizations are unconstitutional.

The DC Circuit, relying on Citizens United, reached an elegantly simple solution:

The Supreme Court has recognized only one interest sufficiently important to outweigh the First Amendment interests implicated by contributions for political speech: preventing corruption or the appearance of corruption.

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Citizens United holds that independent expenditures do not corrupt or give the appearance of corruption as a matter of law, then the government can have no anti-corruption interest in limiting contributions to independent expenditure-only organizations.

This is a big win for the right to political speech.