When Will Free Speech Be Free?

by Nick Dranias, Goldwater Institute

You know things have gotten out of hand when a government agency can’t figure out its own rules. The Federal Election Commission recently was unable to give a grassroots group clear guidance on whether its proposed political advertisements concerning health care, regulatory, and fiscal issues were regulated under federal elections law.

The group gave the Commission 11 proposed political advertisements for the presidential election season to review. In response, the Commission reached split decisions on two different draft opinions and then finally agreed upon a third opinion which declared that it could not reach a decision on whether five of the 11 advertisements were regulated under federal campaign finance laws.

The Federal Election Commission seems to be trying to dance around, or even ignore, the U.S. Supreme Court’s recent free speech ruling in Citizens United. The central principle enforced in Citizens United is that the First Amendment means what it says — “Congress shall make no law . . . abridging freedom of speech.”

Justice Anthony Kennedy emphasized in his opinion that there is no such thing as an insignificant denial of free speech. The opinion also underscored that the First Amendment is violated when complex campaign finance laws force people to hire lawyers and accountants before they can safely spend their money to engage in protected political speech.

Under Citizens United, the mere fact that the Federal Elections Commission could not reach a clear decision after three bites at the apple should be sufficient evidence of the unconstitutionality of the campaign finance laws it is charged to enforce. No one should be left with little more than casino odds to guide decisions about the legality of running political advertisements during election season. Fortunately, Goldwater Institute senior fellow Benjamin Barr and the Wyoming Liberty Group will soon challenge these laws, underscoring that free speech is not free so long as the meaning of campaign finance laws remains murky even to the Federal Election Commission.

Nick Dranias holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute.

Learn More:

Federal Election Commission: Advisory opinion response (PDF)

Wyoming Liberty Group: In re Free Speech

Goldwater Institute: Citizens United Policy Report