When the U.S. Supreme Court stated in Citizens United that the FEC’s “business is to censor,” Justice Stevens protested in his dissent that this characterization was “nonsense” and “deeply disconcerting.” According to Justice Stevens, “[t]he FEC’s business is to administer and enforce the campaign finance laws.”
So who’s right? Well, both.
The FEC’s job is to enforce the campaign finance laws, but to do that, it has to censor speech. That is true whether or not the FEC is composed of a bunch of well-meaning bureaucrats who use smiley faces instead of “censored” stamps.
Case in point: The FEC recently voted that Citizens United’s film operations are part of the press. As a result, the group may now take advantage of the media exemptions contained in the campaign finance laws.
Good news, right? Perhaps. For Citizens United. At least for the moment.
But what happens in six months, when Citizens United decides to go into book or magazine publishing? And what about other groups, like the NRA? Or EMILY’s List? Or any group that you might belong to? Is the media exemption also available to them?
Who knows? If you want to know, hire a lawyer, spend ten thousand dollars submitting an advisory opinion request to the FEC, wait 60 days, and see what the Commission says. They’ll assign the question to a lawyer who will, as the Supreme Court stated in Citizens United, “pore over each word of a text, to see if, in their judgment, it accords with the 11-factor test they have promulgated.”
If they reject your request, you can sue them. It should cost you only half-a-million dollars or so, but you’ll get to experience the joy of exercising your right to assert an as-applied challenge under the First Amendment. According to Justice Stevens, that’s adequate protection for free speech in this context. Under this view, the First Amendment is not so much about the right to speak as the right to sue to see if you will have the right to speak.
It is not the fact that the FEC might want to suppress certain views or ideas, alone, that makes it our official election speech censors. It is the fact that the Commission wields the power to decide questions like these at all.
Our campaign finance laws allow the FEC to impose enormous costs on those who wish to speak about politics. To quote the Court in Citizens United again, “This is an unprecedented governmental intervention into the realm of speech.” Amen to that.