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“There’s No Guarantee.”

A funny thing happens when you depend on bureaucrats to protect your First Amendment rights.  To borrow from a quote of a Federal Election Commission lawyer I squared off with at a recent hearing, “There’s no guarantee.”  No guarantee the government won’t investigate you for speaking “too much.”  No guarantee the government will even-handedly decide who has to comply with cumbersome regulations under the law and who won’t.  No guarantee.

On September 12, I argued against the FEC on behalf of my client, Free Speech.  On October 3, we will learn the result of those arguments.  The cause of our controversy rests on whether the FEC can demand that grassroots groups register and report with the federal government just to criticize it.  Nearly eight months after we asked the FEC to define basic elements of federal election law, all it could do is shrug, leaving Free Speech silenced due to the criminal and civil penalties that attach to violations of the Federal Election Campaign Act. 

Free Speech gave the FEC ample opportunities to articulate one standard citizens could rely on so they don’t risk going to jail or facing onerous penalties that could bankrupt them — all this just for speaking.  Perhaps not all that surprising, months after Free Speech asked for an advisory opinion about how to comply with federal election law, the FEC issued three contradictory draft opinions, two contradictory sets of statements of reasons, and one “partial response” advisory opinion that failed to answer basic questions put before the Commission.  

You might think that the nation’s expert in election law should be able to tell Americans what constitutes “express advocacy” (regulated under the law) or just who is a political committee (facing even more regulations) or other basic elements of the Federal Election Campaign Act.  But you would be wrong in that assumption.  Behind the FEC’s veneer of providing “public disclosure” rests a system of rigorous regulations that the FEC makes up as it goes along, trapping innocent speakers and groups along the way.  This time, one of those groups followed Chief Justice Roberts’ admonition “enough is enough” and filed suit to end these abuses.

While oral argument was illuminating on many fronts, one particular dialogue remains stuck in this attorney’s mind.  After asking the FEC to interpret Free Speech’s proposed advertisements, it deadlocked on several of them, with half of the commissioners noting that Free Speech was free and the other half noting that it was fully regulated under the law.  Lawyers for the FEC don’t see this deadlock as fatal to its program.  But when our judge correctly asked if a tie among commissioners meant a green light for Free Speech, the FEC agreed and then quickly backtracked. In follow-up, the judge asked to confirm that Free Speech would enjoy full immunity if it spoke since commissioners couldn’t agree on the reach of the law. FEC counsel then showed their hand explaining, “there’s no guarantee.”  

There is one guarantee Free Speech is betting on and it’s one the FEC often overlooks:  the First Amendment.  It includes an unequivocal, if ignored, guarantee that protects our cherished freedom of speech.  That guarantee rests in our constitutional covenant, not in the shifting and unreliable promises of speech bureaucrats.  In time, we hope Free Speech v. FEC restores these basic premises, ensuring that the agency administering federal election law can articulate what the law means while being careful to protect the constitutional liberties of free speakers nationwide.

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Thursday, 18 January 2018

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