Advocacy groups won't get Supreme Court's ear on campaign finance

On the day before contentious midterm elections, the US Supreme Court declined Monday to take up a case examining to what extent nonprofit advocacy groups enjoy the same broad right to engage in independent political speech that the high court established for corporations in its controversial Citizens United decision earlier this year.

At issue in SpeechNow.org v. Federal Election Commission was whether federal campaign finance laws violate the First Amendment rights of noncorporate advocacy groups that are seeking to influence elections.

SpeechNow.org is a conservative group that objected to what it viewed as excessive FEC regulations.

The justices did not explain why they decided not to take up the case.

Campaign finance laws and the Supreme Court’s Citizens United decision have been a rallying cry for many Democrats and President Obama, who personally criticized the high court during his State of the Union address.

Mr. Obama says the court’s ruling in Citizens United, that corporations and unions have a right to spend unlimited money during elections to make a political point, is selling democracy to wealthy special-interest groups.

During the current election, independent groups relying in part on the Citizens United decision have spent more than $250 million on advertisements and other forms of advocacy. But the current election cycle – with a slew of contentious issues and control of Congress at stake – is also seeing record spending by candidates and their parties.

The SpeechNow case was being closely watched because it might have offered the high court an opportunity to broaden, restrict, or clarify its earlier ruling on political speech by corporations and advocacy groups.

Under the Federal Election Campaign Act, organizations whose major purpose is to aid the election or defeat of a federal candidate must register with the FEC as a “political action committee” (PAC). PAC registration triggers a regulatory regime that SpeechNow officials complained was too burdensome, with a tangle of regulations they said rivals the nation’s obese tax code.

“In a free country, citizens should not have to register with government bureaucrats and comply with onerous regulations just to speak,” said Bradley Smith, chairman of the Center for Competitive Politics, which was helping represent SpeechNow in the lawsuit. “Americans should not have to disclose broad, non-campaign activities to the government, and they should not have to get the government’s permission to disband.”

SpeechNow was challenging the PAC regulations, saying its group should be subject to the same constitutional safeguards that the Supreme Court said apply to corporations and labor unions.

In the 5-to-4 Citizens United ruling in January, the court said corporations and unions were free to receive and spend unlimited amounts of money to engage in political speech independent of a federal candidate. But the court said unions and corporations must disclose the source of their contributions and their expenditures.

Officials at SpeechNow said their organization should be regulated in the same way. “The government should not be able to burden citizens with regulations that serve no purpose other than to waste time and discourage free speech,” SpeechNow President David Keating said in a statement. “If PAC requirements are too burdensome for large corporations, they are too burdensome for groups like SpeechNow.org.”

The case stems from a February 2008 lawsuit filed by SpeechNow challenging the requirement that it be regulated as a PAC. The law requires that the group designate a treasurer who will be held responsible for compliance with election regulations. Those regulations include retention of records and detailed disclosure of expenditures, including identifying which candidate is to be targeted or helped by that expenditure.

There is also a strict disclosure schedule: Within 20 days of an election, PACs have 24 hours to report any expenditure of $1,000 or more. At all other times, PACs have 48 hours to report an expenditure of $10,000 or more. These reports are publicly available on the FEC website.

The group wanted to be held to the same standard as corporations that make independent expenditures but which aren’t organized as political committees.

Lawyers for the group questioned why an individual could spend his or her own money to engage in independent political speech without government interference, but once a group of individuals pool their resources to make a political point they are forced to comply with an extensive system of government restrictions and requirements.

In March, the federal appeals court ruled that regulating SpeechNow as a PAC did not violate First Amendment protections. It said that any additional regulatory burdens would be “minimal.” The court added that the regulations serve an important purpose. “The public has an interest in knowing who is speaking about a candidate and who is funding that speech,” the court said. Requiring such information “deters and helps expose violations of other campaign finance restrictions.”

With the Supreme Court's refusal Monday to take the case, the appeals court ruling means PACs must continue to follow FEC regulations.

The Obama administration agreed with the appeals court’s decision and asked the Supreme Court to reject SpeechNow’s petition.

SpeechNow is free to accept unlimited contributions and spend unlimited money on political causes, Acting Solictor General Neal Katyal said in his brief. In contrast, the disclosure requirements for PACs do not prevent anyone from speaking, he said.

“The ruling that petitioners challenge does not restrict the amount of money that SpeechNow may raise and spend on independent communications in support of (or opposition to) candidates for federal office,” Mr. Katyal wrote.