Unfettered Speech, Now

By Bradley A. Smith and Steve Simpson
Saturday, February 16, 2008

Most Americans probably assume that they can gather with friends and neighbors to say whatever they want about politics to whoever is willing to listen. They presume that the First Amendment protects their right to get together and buy yard signs, publish newsletters or pay for radio or television ads urging people to vote for or against a candidate -- and to do so free of government interference.

Unfortunately, most Americans would be wrong. Today, when Americans band together and spend even small amounts of money to advocate the election or defeat of a candidate, they must submit to government regulation and limits on the funds they can raise. Because of these campaign finance laws, the presumption in favor of free speech rooted in the First Amendment has largely given way to a presumption of regulation.

The case of SpeechNow.org shows how far the pendulum has swung away from constitutionally protected political expression.

Political activist David Keating created SpeechNow.org to give individual Americans a way to speak about candidates free of the byzantine campaign finance regulations that apply to modern political speech. The group's particular mission is to protect First Amendment rights at the ballot box -- to buy ads urging citizens to vote for politicians who support free speech and against those who do not -- but its model could be applied to any issue or candidate a group of voters cares about.

SpeechNow.org is an independent group of citizens spending their own money on their own speech. It does not accept corporate or union contributions, makes no donations to politicians or parties and does not coordinate its activities with them. It will also fully disclose its contributions and expenditures to the Federal Election Commission.

SpeechNow.org is simply Americans pooling their resources to talk to other Americans about whom to elect to office.

Nonetheless, according to federal campaign finance laws and the FEC, SpeechNow.org must become a "political committee," a PAC, and comply with a host of regulations that rival the tax laws in burden and complexity. Failure to do so could result in up to five years in prison for contributors and the principals of the group.

Political committees cannot accept more than $5,000 per year from any one person. With the high cost of radio and television ads, this contribution limit effectively bars all but the most sophisticated groups -- those with professional fundraisers and the time to accumulate millions of dollars in small increments -- from competing in the political marketplace of ideas. No wonder politics has become an insider's game.

These laws are allegedly justified by the need to prevent "corruption." But how can a group of individuals who will never give a penny to a political candidate raise any concerns about corruption? If simply urging citizens to vote one way or another is corrupt, democracy itself is corrupt.

In fact, the U.S. Supreme Court has long held that the government cannot limit what an individual spends to promote her political views, even if she tells people how to vote. It is common sense that groups of individuals should have the same rights. No one should have to sacrifice the First Amendment right to associate in order to exercise the First Amendment right to speak.

Imposing limits on groups such as SpeechNow.org ends up hurting the very people whom backers of campaign finance regulation always claim they're trying to help -- people of average means who must pool their resources to be heard -- while leaving the field to the very wealthy to spend what they please.

Those are among the claims SpeechNow.org and its members made in a lawsuit filed this week in the U.S. District Court for the District of Columbia. It challenges the constitutionality of requiring independent groups of citizens to register and organize as political committees. For the first time, federal courts will be asked to decide whether independent political speech by groups of individual American citizens has the full protection of the First Amendment.

Would a victory for SpeechNow.org allow groups of citizens to spend unlimited funds to influence the outcome of elections? Yes. And that is exactly why SpeechNow.org should prevail.

The First Amendment guarantees the right of citizens to urge political change, and elections present an ideal opportunity to affect policy by affecting the political futures of those who make it. That requires telling voters how they should vote.

A victory for SpeechNow.org would bring federal campaign finance laws into line with the constitutional principles of free speech and association, and bring them closer to the First Amendment that most Americans already believe we have.

Bradley A. Smith is chairman of the Center for Competitive Politics and a former Federal Election Commission chairman. Steve Simpson is a senior attorney at the Institute for Justice. They represent SpeechNow.org.

© 2008 The Washington Post Company