Citizens United sequel moves along
on May 14, 2010 at 5:03 pm
An election advocacy group asked a federal judge in Washington on Friday to clear the way for it to go all across the nation to raise unlimited amounts of money to spend to influence congressional elections this year. The Federal Election Commission has lost its challenge to such fund-raising, and should now be barred from enforcing limits on that activity anywhere in the country, the motion filed by the organization, SpeechNow, argued. The motion, with a legal memorandum supporting it, can be read here.  The case of SpeechNow.org v. FEC is one of the most significant sequels to develop so far to the Supreme Court’s campaign finance ruling in January in Citizens United v. FEC.
The FEC and the U.S. Solicitor General’s office have not yet decided whether to take to the Supreme Court the FEC’s unanimous loss in the D.C. Circuit Court in the SpeechNow case. While the time to file a challenge before the Justices does not expire until late June, the motion filed Friday in U.S. District Court will put added pressure on government officials to make up their minds on the next step. They must respond to the new motion in 14 days, for example — that is, before the end of this month.
In the new motion, SpeechNow’s lawyers asked U.S. District Judge James Robertson to take two actions. One is a routine order to put into full effect the D.C. Circuit’s ruling that imposing contributions limits on those who want to donate money for SpeechNow’s election activity would be unconstitutional. But, the motion contended, that kind of order would not be enough. The FEC in the past has lost a case on a campaign finance issue in one federal court, but has continued to seek to enforce it elsewhere, the filing said, so an order barring FEC from any application of the law to SpeechNow or its donors is necessary.
Even the Supreme Court, in its Citizens United ruling, had remarked that the FEC was in the business of censoring political speech, the motion noted. So, it argued, it is up to the courts to see that SpeechNow’s constitutional right to raise and spend unlimited funds in federal elections is unchecked. The organization said that it plans “both to raise money for independent ads and to broadcast such ads throughout the nation.” It “should not have to litigate this case in every circuit in order to ensure their ability to exercise rights that are clearly protected by the First Amendment….As a result, [SpeechNow and its donors] need the added protection afforded by an injunction.”
The D.C. Circuit Court, in a follow-up to the Supreme Court’s Citizens United ruling, on March 26 struck down by a unanimous vote of the full en banc Court a ceiling on contributions to political groups that operate in federal elections independently of candidates and political parties. The Circuit Court indicated that the ruling was virtually dictated by the reasoning the Supreme Court had used in its Citizens United decision.
Under federal campaign finance law, a group qualifies as a “political committee” as soon as it accepts donations of more than $1,000 in a year or spends more than $1,000 in a year. Any individual seeking to donate money to such a committee may not give more than $5,000 per calendar year to any single committee, and no more than a total of $69,900 every two years to all political committees. Those are the provisions the Circuit Court nullified for SpeechNow — and, by implication, for other independent political groups.
The Circuit Court has now returned the case to Judge Robertson in District Court, so the next move is up to him. Once the FEC has filed a response two weeks from now, the judge will decide.  In the meantime, if the FEC and Justice Department lawyers want to head off implementation of the Circuit Court ruling in the event of an appeal to the Supreme Court, they would have to seek emergency relief either from Judge Robertson, from the Circuit Court, or from Chief Justice John G. Roberts, Jr., as Circuit Justice for the D.C. jurisdictional area.
If the decision is put into full effect without being stopped by some court, SpeechNow would be able to go forward right away with its fund-raising and spending plans.
