Briefing Paper No. 96

Free Speech and the 527 Prohibition

By Stephen M. Hoersting
April 3, 2006

Executive Summary

Proponents of measures to make independent section 527 organizations into “political committees” under the Federal Election Campaign Act, subjecting the organizations federal campaign limits and reporting requirements, misunderstand both the role and result of regulation in campaigns and the jurisprudence in this area.

Such measures would leave much activity unregulated and would induce a shift of activity from one legal structure to another, thus rendering any perceived partisan advantage arising from the measures improbable or incalculable.

Organizations engaged in independent speech and association with no connection to candidates or officeholders cannot be made to register with the Federal Election Commission simply because they mention candidates; and they cannot be limited in the financial contributions they may receive for their independent communications. Independent organizations do not corrupt the legislative process. They are not corrupting the balloting process. They are a part of, not corrupters of, the information exchange process in and around elections.

That politicians and party chairmen on both sides of the aisle favor restricting the speech of independent organizations on vaguely egalitarian grounds ignores the Supreme Court’s clear instruction that limiting the voice of some to enhance the relative voice of others is foreign to the First Amendment. The instrumental value of this maxim is backed by data. Studies show that more speech in campaigns, not less, benefits voters of all socio-economic backgrounds.

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Stephen Hoersting is former General Counsel to the National Republican Senatorial Committee and Executive Director of the Center for Competitive Politics.