How Government Stifles Grassroots Political Advocacy

by Bradley A. Smith

Earlier today Senator McConnell gave a major address at the American Enterprise Institute, criticizing efforts, both formal and informal, to silence political speakers. Senator McConnell’s welcome speech was aimed at countering the post–Citizens United effort of some on the left, including some in the administration, to bully or intimidate those with opposing points of view.

Meanwhile, a lawsuit filed yesterday in federal court points up how long-established laws can already suffocate grassroots political activity. Free Speech — a small group consisting of a handful of retired Wyoming ranchers — wants to spend a few thousand dollars running ads about President Obama and his policies on issues of concern to ranchers. But under the Federal Election Campaign Act (FECA), it appears that the group must first register with the government as a political committee, appoint a treasurer, and file detailed monthly reports with the government, including information on its ads and vendors, and details of receipts in ten different categories and disbursements in twelve. Once so organized, a group cannot disband and stop filing reports without government permission. I say that “it appears” that the group must register with the government as a political committee, because when the group asked the FEC, the vagueness and complexity of the agency’s regulations left the FEC unable to answer the question itself.

Violations of the FECA can lead to costly civil penalties for which the person appointed treasurer can be personally liable. And as Justice Kennedy pointed out in Citizens United, the FEC has “adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975.” A far cry from “Congress shall make no law.” Campaign-finance attorney Ben Barr, who is representing Free Speech on behalf of the Wyoming Liberty Group, says, “The notion that average Americans must wade through this regulatory maze is absurd and an affront to the First Amendment.”

The group has asked the Court to declare the FEC’s existing political-committee regulations unconstitutional under the First Amendment.

 Bradley A. Smith is Chairman of the Center for Competitive Politics and the Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School.

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