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FEC Record: Litigation

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Free Speech v. FEC

On June 14, 2012, Free Speech filed suit in the U.S. District Court for the District of Wyoming challenging the constitutionality of the Commission’s regulations, policies and practices regarding the determination of when a communication constitutes express advocacy, whether a communication is a solicitation, and whether a group is a political committee.  The group seeks injunctive relief and a declaratory judgment that the rules are unconstitutional, on their face and as applied.

Background

Free Speech is a Wyoming-based, unincorporated association with a stated purpose of promoting and protecting “free speech, limited government, and constitutional accountability." The political organization plans to use individual donations to finance $10,000 in Internet, newspaper, TV, and radio ads during the months leading up to the 2012 election. Free Speech states that it will not coordinate any of its advertising expenditures and will not accept donations from foreign nationals and federal contractors. Nor will it contribute to federal candidates, political parties, or political committees. 

The lawsuit follows the Commission’s May 8, 2012, response to the group’s advisory opinion request. In AO 2012-11, the Commission concluded that two of the 11 ads Free Speech planned to run expressly advocate the election or defeat of a federal candidate under the Act; four of the proposed advertisements do not; and two of the four proposed donation requests are not solicitations. The Commission could not approve a response by the required four votes with respect to the five remaining ads and the two remaining donation requests, nor could it approve a response as to whether Free Speech would have to register and report as a political committee. 11 CFR 100.22 and 100.5(a).

Analysis

Free Speech’s suit focuses primarily on the regulatory definition of express advocacy at 11 CFR § 100.22(b). The suit argues that this regulation and related FEC rules, policies and practices abridge Free Speech’s First Amendment freedoms. It also questions the Commission’s interpretation and enforcement process regarding political committee status, solicitation tests, the “major purpose” test, and express advocacy determinations. See 2 U.S.C. §§ 431(4), 431(8), 441d; 11 CFR §§ 100.5(a), 100.52(a), 110.11(a).

The group’s main argument consists of three parts. First, it states that the Commission’s definition of express advocacy is put forth in “unclear terms leaving those who guess wrong [to be] subject to criminal or civil penalties.” Secondly, it argues the Commission’s political committee registration and reporting requirements are “burdensome” for all groups whose “expenditures” aggregate more than $1,000 in a calendar year. See 2 U.S.C. § 431; 11 CFR § 100.5. Lastly, Free Speech disputes whether independent expenditures must include disclaimers and be reported to the Commission. See 2 U.S.C. § 434; 11 CFR § 104.4.

(Posted 7/11/12; By: Alex Knott)

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The FEC Record is produced by the Information Division, Office of Communications. Toll free 800-424-9530; Local 202-694-1100; E-mail info@fec.gov. Greg Scott, Director; Alex Knott, Senior Writer/Editor; Myles Martin, Editor