Commissioners Address Free Speech Issue

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Commissioners Address Free Speech Issue

Special Report - August 5, 2009
Eight former commissioners of the Federal Elections Commission (FEC) have asked the U.S. Supreme Court to overrule two previous rulings involving federal campaign finance laws they argue are “chilling” to free speech. The former FEC commissioners, including one former chairman of the FEC, made the request in a friend-of-the-court brief filed on July 28 in the case, Citizens United v. FEC, which is currently before the U.S. Supreme Court. At issue in the case is a federal campaign finance law—the Federal Election Campaign Act (FECA)—that was used to prohibit the public airing of a documentary on Hillary Clinton during the 2008 primary election season.

In their friend-of-the-court brief, the former FEC commissioners ask the Supreme Court to overrule McConnell v. FEC (where, according to the James Madison Center for Free Speech, the Court upheld a federal law prohibiting corporate broadcast ads mentioning federal candidates near elections), and Austin v. Michigan State Chamber of Commerce (which held that corporations could be prohibited from political activity).

“As former FEC commissioners, with many years of experience interpreting the Federal Election Campaign Act (FECA), implementing regulations, devising enforcement policy and investigating violations,” the brief states, “Amici have an interest in advising the Court of the complexities and difficulties of practical application of federal campaign finance laws and the First Amendment to political speech and activity.”

According to the James Madison Center for Free Speech, the brief details the complex and burdensome regulations in FECA, noting that the law “is 244 pages, and the FEC regulations interpreting FECA add an additional 568 pages. There have been 17 ‘major’ and 366 other cases challenging FECA and FEC regulations, with 17 yet unresolved. The FEC has filled 1,278 pages of the Federal Register with explanations and justifications for its regulations, along with 10 policy statements, 1 interpretive rule, and 1,771 advisory opinions since 1975, with 9 more pending.”

The brief continues: “[T]he field is so complex that citizens cannot understand it and experts find it difficult. The pristine simplicity of the First Amendment’s proscription of any law . . . is replaced by a flood of complex regulations. The complexity requires citizens to hire specialists to speak. Specialists cost money. Errors risk penalties. Core political activity is chilled.”

In a press release, James Bopp, the counsel on record for the former FEC commissioners, noted, “The First Amendment mandated that ‘Congress . . . make no law . . . abridging freedom of speech.’ There was profound wisdom in that pristine statement that America must return to. While a few exceptions to ‘no law’ were made initially for exigent circumstances, the flood of regulation, which these exceptions have spawned, has made current federal campaign finance law the antithesis of ‘Congress shall make no law.”