In re Free Speech

In re Free Speech
Benjamin Barr and Stephen Klein

Filed: February 29, 2012 (Federal Election Commission Advisory Opinion Request No. 2012-11)


In Spring 2012, Wyoming Liberty Group attorneys agreed to represent Free Speech, a grassroots group here in Wyoming that wishes to speak about federal issues and how they relate to candidates, but cannot due to vague and overbroad laws administered by a power-hungry agency, the Federal Election Commission (FEC).  This Commission’s regulations stifle free speech–usually by grassroots groups—and few stand to oppose its authority.  

 Despite recent Supreme Court rulings against the agency that offer excellent guidance—including Citizens United v. FECDavis v. FEC, and Wisconsin Right to Life v. FEC—the FEC continues to interpret Court rulings as narrowly as possible, placing its whim above the Constitution.  Its regulations are so cumbersome that even small groups of citizens must file with the federal government and regularly report their spending if their speech could possibly be interpreted as advocating for or against candidates.  But the regulations are so vague it’s impossible to distinguish candidate advocacy from issue advocacy, so people just stay quiet.  

The Supreme Court has consistently reaffirmed the principle that government cannot examine the intent of speakers, demand that citizens register before they speak, or otherwise impose complicated regulatory regimes in the area of the First Amendment.  But the FEC, itself with a fine loss record in the federal courts, continues to ignore the wisdom of the judiciary in favor of its own authority.  

The FEC has imposed its own “political committee” regulations on groups for just mentioning a candidate’s name, talking about a candidate’s character, running advertisements “too close” to an election, or otherwise being an effective advocate of their cause.  Even more appallingly, the FEC subjects groups to investigations even when their speech does not trigger their arbitrary switches: this has been done when a group’s donors also donated to certain candidates, when a newspaper cited anonymous sources to reveal the “real” purpose of a group, and when a group’s issue advocacy mentioned candidates labeled “vulnerable” by a political party.  

 This nonsense needs to stop. 

Free Speech includes two retired gentlemen and one self-employed individual.  All they’d like to do is speak, and all that stands in their way is a mountain of FEC regulations.  With this advisory opinion request, we hope the Commission will re-orient its regulation to be friendly toward the First Amendment.

Procedural History:

On February 29, 2012, WyLiberty filed an Advisory Opinion Request (AOR) with the FEC to determine whether the speech of Free Speech is within its regulatory purview.  (Click here to download the Request.)

On April 12, 2012, WyLiberty counsel Benjamin Barr attended an open meeting with the FEC commissioners to discuss the AOR and the FEC’s proposed draft opinions (Draft A and Draft B). Audio of this segment of the meeting is available here.

On April 26, 2012, the FEC issued a third draft opinion (Draft C). Benjamin Barr and Steve Klein attended a second open meeting at the FEC. The Commission brought Drafts B and C to a vote, and each failed by a vote of 3-3. Audio of this segment of the meeting is available here.

On May 8, 2012, the FEC issued Advisory Opinion 2012-11, a compromise opinion (approved 6-0) that concludes two of Free Speech’s advertisements constitute express advocacy, four do not, but five could not be agreed upon. Furthermore, two of Free Speech’s donation requests would not be soliciations for contributions, but the remaining two could not be agreed upon. So, with the FEC unable to apply the law to roughly half of Free Speech’s messages, the FEC could not determine whether or not Free Speech must register and report as a political committee in order to speak. This concludes the advisory opinion process for Free Speech.

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