SpeechNow.org v. FEC (New)

On February 14, 2008, SpeechNow.org (SpeechNow), a group formed to make independent expenditures, and several individual plaintiffs filed a complaint in the U.S. District Court for the District of Columbia challenging the constitutionality of the Federal Election Campaign Act (the Act) provisions governing political committee registration, contribution limits and disclosure requirements. The plaintiffs seek a declaration that, as applied, those provisions unconstitutionally abridge their rights of free speech and association. Additionally, they request preliminary and permanent injunctions blocking the FEC from enforcing the provisions against them.

Background

Under the Act, a group becomes a “political committee” when it collects contributions or makes expenditures in excess of $1,000 during a calendar year. 2 U.S.C. § 431(4). The definition of “contribution” includes any gift, loan or anything of value made by any person to influence an election for federal office. 2 U.S.C. § 431(8). Similarly, an “expenditure” includes any purchase, payment or anything of value made by any person to influence a federal election. 2 U.S.C. § 431(9).

Political committees must register with the FEC and are subject to limits on the contributions they receive and make. 2 U.S.C. § 441a(a). They also must periodically disclose their receipts and disbursements. 2 U.S.C. § 434(a) and (b).

A political committee may make unlimited “independent expenditures,” which are defined as expenditures expressly advocating the election or defeat of a clearly identified candidate that are not made in concert or coordination with a candidate or a political party. 2 U.S.C. § 431(17).

Individuals may make unlimited independent expenditures from their personal funds. An individual who makes such expenditures may have reporting requirements but will not trigger registration with the FEC as a political committee. 2 U.S.C. § 434(c). Individual contributions are subject to limits, including an overall biennial limit on federal contributions.

Complaint

SpeechNow is a nonprofit, unincorporated 527 organization registered with the Internal Revenue Service. The organization was formed by individuals who seek to pool their resources to make independent expenditures expressly advocating the election or defeat of federal candidates. SpeechNow plans to accept contributions only from individuals, not corporations or other sources prohibited under the Act. The individual plaintiffs wish to contribute to SpeechNow, both in federally permissible amounts and in amounts exceeding the federal limits.

SpeechNow submitted an advisory opinion request to the Commission on November 19, 2007, asking whether its activities, involving raising funds from individuals to pay for independent communications that contained express advocacy, would require it to register as a political committee under the Act. The General Counsel’s Office prepared a draft opinion for Commission discussion stating that contribution limits would apply to contributions given to SpeechNow, and that SpeechNow would be required to register as a political committee once it raised or spent more than $1,000 in a calendar year. Since the Commission only had two of the requisite four members at the time the draft was considered, it could not issue an advisory opinion. The Commission notified SpeechNow of that fact on January 28, 2008.

The plaintiffs contend that the Act unconstitutionally restricts its members’ freedom of speech and freedom of association guaranteed under the First Amendment. By requiring registration as a political committee and limiting the monetary amount that an individual may contribute to a political committee, SpeechNow and the other plaintiffs assert that the Act unconstitutionally restricts the individuals’ freedom of speech by limiting the amount that an individual can contribute to SpeechNow and thus the amount the organization may spend. SpeechNow also argues that the reporting required of political committees is unconstitutionally burdensome.

Relief requested

The plaintiffs ask the court to find the contribution limits, reporting requirements and political committee registration requirements unconstitutional as applied to their proposed activities. The plaintiffs also request that the court preliminarily and permanently enjoin the FEC from enforcing these provisions against SpeechNow and the individual plaintiffs.

U.S. District Court for the District of Columbia, 1:08-cv-00248.

Resources:

• SpeechNow.org v. FEC litigation page
• Contributions to Super PACs and Hybrid PACs