Free Speech v. Federal Election Commission

Free Speech v. Federal Election Commission
Benjamin Barr, Stephen Klein and Jack Speight


June 14, 2012 (United States District Court for the District of Wyoming)

October 19, 2012 (Appeal to the United States Court of Appeals for the Tenth Circuit)

December 30, 2013 (Appeal to the United States Supreme Court)

Causes of Action:

1. On its face and as applied, 11 C.F.R. § 100.22(b) is unconstitutional because it triggers a host of regulatory burdens based on vague and overbroad standards in conflict with the First Amendment.

2. § 100.22(b) and other FEC practices act as the functional equivalent of a prior restraint.

3. The FEC’s vague solicitation standards inhibit Free Speech from associating with likeminded individuals and speaking out to raise awareness about issues it cares about.

4. The FEC’s unclear and overbroad political committee status, major purpose test, and definition of solicitation violate the First Amendment.

In early 2012, three Wyomingites came together to form an unincorporated nonprofit association called Free Speech. Tired of numerous policies coming out of the White House–relating to health care, land rights, free speech, gun rights, and other issues–Free Speech meant to serve as a way for these residents and likeminded people to speak out about issues here in Wyoming.

Just one thing stood in their way: hundreds of pages of federal campaign finance regulations, some of which might require them to register as a political committee (PAC). The costs of maintaining a PAC are high, and failing to comply can lead to civil or even criminal penalties. Free Speech would just like to speak about issues, but if its messages are too hard-hitting the FEC has the power to label these messages “express advocacy” for the election or defeat of a federal candidate. If Free Speech spends more than $1,000 on “express advocacy” and the FEC (again, under its own vague standards) determines that
Free Speech’s “major purpose” is the election or defeat of a clearly identified candidate, then Free Speech must register and report in order to speak.

Free Speech initially engaged the FEC through its advisory opinion process. After two hearings, three draft opinions, and two statements of reasons over a 60-day period, the FEC issued an advisory opinion that could not answer whether most of Free Speech’s proposed advertisements were express advocacy or not. The advisory opinion also could not answer whether Free Speech would have to register and report as a PAC.

Absent clear guidance in this area, Free Speech was silenced, for it must choose between 1) speaking bluntly about issues under the risk of federal civil or criminal penalties, 2) tailoring its message, without any guidance, to be “safe” in accord with FEC proper speaking standards, again under risk of prosecution, or 3) being muted due to the burdens attached to registering and reporting as a political committee with the Commission.

None of these options appealed to Free Speech. Seeking to vindicate its name, Free Speech brought suit in federal court challenging these FEC regulations and practices as unconstitutional under the First Amendment.

Procedural History:
 This lawsuit followed the completion of the advisory opinion process at the FEC.

United States District Court for the District of Wyoming:

Appeal to Tenth Circuit Court of Appeals:

  • On October 24, 2012, Free Speech filed an emergency motion for injunction pending appeal with the Tenth Circuit, its last opportunity to speak during the 2012 election cycle.
  • On October 29, 2012, the Tenth Circuit denied Free Speech’s motion for emergency injunction. Free Speech proceeded with its regular appeal of the District Court’s denial of preliminary injunction.
  • WyLiberty filed its brief for Free Speech with the Tenth Circuit on January 2, 2013.
  • WyLiberty filed its reply brief for Free Speech with the Tenth Circuit on February 22, 2013.
  • On March 29, 2013, WyLiberty and the Federal Election Commission filed a joint motion to substitute briefing and oral argument, asking the Tenth Circuit to address the Wyoming Court’s dismissal of Free Speech’s case rather than its earlier denial of preliminary injunction. The Court granted this motion on April 1.
  • Ben Barr argued before the Tenth Circuit on May 7, 2013.
  • On June 25, 2013, the Court issued a ruling adopting the District Court’s dismissal of the case.
  • WyLiberty filed a petition for rehearing en banc on August 9, 2013, asking the entire Tenth Circuit to review the findings of the initial panel.  The FEC responded on September 3.
  • On September 30, 2013, the Tenth Circuit denied Free Speech’s petition for rehearing en banc.

Appeal to the United States Supreme Court:

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