Yesterday, a district court in
The decisions directly conflicts with Citizens United, but it is particularly relevant to our petition for review in SpeechNow.org v. FEC. In SpeechNow.org, the D.C. circuit ruled that an unincorporated association must become a PAC in order to speak, notwithstanding the Supreme Court’s ruling in Citizens United that corporations cannot be required to become PACs just to spend money on independent ads advocating the election or defeat of candidates. We’ve asked the Supreme Court to accept that case for review because it conflicts with Citizens United. Among other things, we pointed out that if the court’s can ignore Citizens United and require unincorporated associations to become PACs, there’s no reason they won’t do the same thing to corporations, thus nullifying an important part of Citizens United. We hate to say we told you so, but it appears that that has now happened.
Just to back up a bit and put all this in context, in Citizens United, the Court held that the government cannot ban corporations from paying for independent expenditures—that is, ads advocating the election or defeat of candidates. But it also held that they can’t be required to set up separate, heavily regulated PACs in order to speak out about political elections. “PACs,” the Court pointed out, “are burdensome alternatives; they are expensive to administer and subject to extensive regulations.” The Court then went on to catalog all of the regulations that apply to PACs. In short, the Court essentially held that the government may not do indirectly what it is forbidden from doing directly. If it cannot ban spending for speech outright, it also may not so heavily regulate that spending in order to accomplish the same thing.
In SpeechNow.org, which involves an unincorporated association that wants to do the same thing as the corporation in Citizens United, the D.C. Circuit struck down fundraising limits on the group because its independent spending, like the independent spending of the corporations at issue in Citizens United, posed no threat of corruption. But the D.C. Circuit upheld the requirement that the group become a PAC in order to speak.
We are now seeking review in the Supreme Court. We’ve argued that the SpeechNow.org decision conflicts with Citizens United, and that lower courts, following the D.C. Circuit, could even end up requiring corporations to become PACs in order to speak. The district court in Swanson has now done just that.
This is an object lesson on the impact of our incredibly byzantine campaign finance system, not only on speech but also on the courts. Citizens United is not hard to understand, and yet the courts have already misunderstood it. That isn’t surprising. There are so many different rules, regulations and tests in this area, and so many conflicting cases, that it’s tough to know what the law is at any given moment. Citizens United was a welcome dose of clarity, but to truly protect speech over the long haul, the Court will have to continue to instruct lower courts that free speech must be the rule, not the exception.