The ink isn’t yet dry on January’s landmark Supreme Court campaign finance decision Citizens United v. FEC, and already Round Two has begun. As new legislation is planned to limit political speech and some even call for a constitutional amendment, the courts are addressing the next round of constitutional challenges.
Last month the country’s second-highest court, the U.S. Court of Appeals for the D.C. Circuit, heard arguments in SpeechNow.org v. FEC. This case was already pending at the D.C. Circuit before the Supreme Court handed down its decision in Citizens United. Some aspects of the case were changed by Citizens United, leading Chief Judge David Sentelle of the D.C. Circuit to ask at the very outset, “What do you have to add to Justice Kennedy?” (Anthony Kennedy wrote the opinion in Citizens United.)
The laugher in the courtroom to Chief Judge Sentelle’s question made it clear that everyone understood that Citizens United was a game-changer, and that the Obama administration was now on the defensive regarding its ability to control political speech.
But the core issues in SpeechNow remained the same, issues about current federal law that need to be answered in the wake of Citizens United. Those questions are: whether the federal law requiring groups to file detailed reports about their contributors when they receive money—as opposed to filing reports only when those groups spend money—is constitutional, what sort of limits on contributions are constitutional, and also whether the registration requirements for political organizations are constitutional.
In short, Citizens United looked at the First Amendment issues about regulating the spending of money for political speech, and SpeechNow looks at the First Amendment issues about regulating the raising of money for political speech.
These questions come on the heels of the Supreme Court’s decision in Citizens United, which vindicated the First Amendment by holding that individual citizens have the right to join together in organizations to pool resources and coordinate activities to speak out during election season.
In Citizens United the Court rightly recognized that the government’s claim to censor political speech from any corporate entity would include the media, since almost every TV and radio station, as well as newspapers and magazines, are corporations, and therefore could be silenced by the government under this law.