A top federal appeals courts has decided in a major campaign finance case. Whether this case goes to the Supreme Court or not, it indicates that in the aftermath of the Supreme Court’s Citizens United case that Americans will continue to enjoy more of their First Amendment rights, as we head into an election cycle where free speech spells big trouble for Team Obama.
On January 21, the U.S. Supreme Court decided Citizens United v. FEC, in which the Court held that citizens joining together in corporate associations are protected by the First Amendment when those corporate groups speak out during election season. The decision restored the understanding of free speech in constitutional law maintained from 1791 until 1990 and overturned two poorly-reasoned cases from 1990 and 2003 that had said the contrary.
But Citizens United was the beginning of restoring our First Amendment rights, not the end. Constitutional scholars and election-law experts are busily debating the next steps to explore after the Supreme Court’s excellent decision in Citizens United. Now a federal appellate court has acted upon that next step.
Of all the federal appeals courts, none is more important than the U.S. Court of Appeals for the D.C. Circuit, leading many commentators to describe it as America’s second-highest court.
On March 26, the D.C. Circuit handed down its decision in SpeechNow.org v. FEC. SpeechNow is an unincorporated association that wants to weigh in on political matters. At issue were several items concerning contribution limits on how much money donors could give to SpeechNow, and whether SpeechNow needed to register as a political committee with the Federal Election Commission (FEC).
This was a bold test case when it was filed in November 2007. Fortunately for SpeechNow, these constitutional issues were argued before the D.C. Circuit on January 27, 2010, just six days after the Supreme Court decided Citizens United. As a result, the issues raised in SpeechNow just seemed like the logical next step. You couldn’t ask for better timing.
All but a few cases heard on appeal are considered by a three-judge panel. However, lawsuits like this one, challenging the constitutionality of part of the Federal Election Campaign Act (FECA), are heard by the full appellate court in what’s called an en banc hearing.