SpeechNow, the Decision that Made a Difference

Tomorrow will be the anniversary of the Citizens United decision. We have also been hearing a lot about “Super PACs,” which have supported a lot of speech in the Republican primaries. That speech has had a good effect: voters have heard a lot more about the candidates, their positions, and their character. Such information can only lead to better elections.

You might recall that Citizens United involved a movie about Hilary Clinton partially funded by a corporation. You might also notice that the Super PAC ads are not being funded by corporations but rather by individuals. What’s going on? Why can individuals freely fund political speech in South Carolina and other states?

Citizens United established the principle that government cannot prohibit the funding of speech undertaken independently of candidates and the parties. It did not free up spending on speech by individuals.

The decision that accomplished that was SpeechNow.org v. Federal Election Commission. In that case, a federal court found that individuals who want to associate with one another to fund political speech cannot have their contributions limited by government. Individuals can give what they want to an independent group and spend what they want on speech. That seems logical now, but prior to SpeechNow it was not the law.

Consider what might have happened if SpeechNow had not been decided. It would have been up to the Federal Election Commission to decide how to apply the Citizens United principle that independent speech should be free of government suppression. The FEC does not have a good record on moving quickly to liberalize campaign finance regulations (to put it mildly). The Super PACs question might well be tied up in the bureaucracy.

Voters in South Carolina and elsewhere have reason to celebrate the second anniversary of Citizens United.  As we rightly celebrate that decision, we should not forget SpeechNow, the decision that made free speech a reality for voters in South Carolina and everywhere.