Dec 15, 2009 -- SpeechNow.org Suit Seeks Unlimited Contributions for "527 Groups": Reformers File to Uphold the Law

On December 15, 2009, the Campaign Legal Center and Democracy 21 filed an amici brief with the en banc D.C. Circuit Court of Appeals in SpeechNow.org v. FEC, a challenge to the $5,000 contribution limit and the comprehensive disclosure requirements applicable to political committees making independent expenditures. If SpeechNow.org were to be successful in its challenge, the "527 groups" active in past presidential elections would be authorized to operate almost entirely outside of the campaign finance laws, allowing hundreds of millions of dollars of soft money to flow back into federal elections.

Plaintiff claims that because SpeechNow.org makes only independent expenditures, the state interest in preventing actual and apparent corruption does not justify its regulation as a political committee. In making this argument, SpeechNow.org highlighted the recent D.C. Circuit decision in EMILY's List v. FEC, a challenge to several FEC regulations applicable to independent groups. There, in a split decision, a three-judge panel of the D.C. Circuit not only struck down the challenged regulations, but in a broad judicial overreach, also questioned the constitutionality of limits on contributions to independent political committees even though the statutory limits had not even been challenged in the lawsuit.

The brief filed by the Legal Center and Democracy 21 argues that the EMILY's List decision was incorrect and contrary to all relevant legal precedent, and should be "affirmatively repudiated" by the en banc D.C. Circuit in its consideration of the SpeechNow.org matter. Amici explain that the principle defect in the EMILY's List decision was its conflation of contributions and expenditures for the purposes of First Amendment review. This position is at odds with decades of Supreme Court precedent that has consistently distinguished contribution limits from expenditure limits and held them to different standards of judicial scrutiny. Amici also argue that the EMILY's List panel relied upon an overly narrow conception of the governmental interest supporting contributions limits, allowing the government to target only the most blatant quid pro quo, "cash for votes" style of corruption. As amici point out, however, the Supreme Court on multiple instances has emphasized that Congress may legislate to prevent "more subtle but equally dispiriting forms of corruption," such as the "undue influence on an officeholder's judgment, and the appearance of such influence" that unlimited contributions can purchase.

The amici brief was filed in the en banc Court of Appeals proceeding that arose from the district court's certification of questions pursuant to 2 U.S.C. § 437(h) in SpeechNow.org v. FEC. The Legal Center and Democracy 21 previously filed an amici brief on September 30, 2009 in the appeal of the district court's denial of preliminary injunctive relief in SpeechNow.org, a proceeding which has since been consolidated with the certification action.

Oral argument in the case is scheduled for January 27, 2010.

To read the the brief file by the Legal Center and Democracy 21, click here.