SpeechNow.org, an independent organization whose stated mission is to advocate for the election of federal candidates who favor free political speech, has filed a lawsuit challenging federal campaign finance laws that prohibit contributions of more than $5,000 per year to political committees as an unconstitutional violation of free speech and association rights.

In November 2007, a newly formed organization, SpeechNow.org, submitted an Advisory Opinion request to the Federal Election Commission (FEC) seeking approval of its plan to collect unlimited contributions from individuals to conduct "express advocacy" for or against federal candidates. The group is organized under Section 527 of the Internal Revenue Code and wants to support or oppose candidates based on their positions on free political speech. According to its website, "SpeechNow.org is a nonpartisan independent speech group that supports free speech and associational rights. It plans to speak out in support of candidates who favor free political speech and oppose those who back so-called campaign finance 'reform' legislation that restricts the rights to speech and association."

On Jan. 24, the FEC counsel's office released a draft Advisory Opinion that said SpeechNow.org cannot accept unlimited contributions from individual donors if it wants to advocate for or against candidates for federal office. The draft said the group would be required to register as a political committee under FEC rules, which limit contributions from individuals to $5,000 a year and prohibit corporate contributions. The FEC contends that the group would be considered a political committee, since its main objective will be federal campaign activity. Under the Bipartisan Campaign Reform Act (BCRA) and FEC regulations, a political committee is defined as any "group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year."

SpeechNow.org argues that because individuals are allowed to spend unlimited amounts on independent efforts to influence federal elections, it is unconstitutional to impose restrictions when two or more individuals form a group to spend money on elections. If its speech is independent of any candidate or party, funded only by individuals, SpeechNow argues that the anti-corruption justification for regulation does not hold up. In addition, they argue that any restrictions on the ability of individuals to associate violate the First Amendment, and the group would be silenced if the draft Advisory Opinion is adopted.

The FEC's only two sitting commissioners disagreed over the draft opinion. Democratic Commissioner Ellen Weintraub voted in favor of it, but Republican Commissioner David Mason voted against it. Mason said in a written dissenting opinion, "The distinction between candidate coordinated speech and independent speech is of constitutional significance. . . . Limiting the contribution limits given to an organization like SpeechNow would impose an intolerable, and constitutionally unjustifiable, burden on the independent spending of this organization." However, the FEC currently does not have a quorum of six commissioners, because a dispute over confirmation of nominees in the Senate allowed four positions to lapse at the end of 2007. Without a quorum, the commissioners can neither officially adopt the opinion nor approve SpeechNow.org's request. However, now that a lawsuit has been filed, FEC lawyers will defend the draft opinion in court.

SpeechNow.org, its president David Keating, and four potential contributors are represented by attorneys from the Center for Competitive Politics and the Institute for Justice. The complaint was filed on Feb. 14 in the U.S. District Court for the District of Columbia, asking the court for an injunction blocking the FEC from enforcing limits on contributions to the group (SpeechNow.org v. FEC). It states, "Recognizing that elections are an ideal time to bring attention to important issues and to affect policy, SpeechNow.org wishes to finance television advertisements that call for the election of candidates who support rights to free speech and association and the defeat of candidates who do not support these rights."

It is unclear how quickly the case will move forward, but it could be considered by a federal appeals court by spring or summer. The plaintiffs have requested a preliminary injunction and asked that an expedited hearing on that request be scheduled within 20 days. The lawsuit could have broad implications for spending by independent organizations during federal elections. A Los Angeles Times editorial said that the case "will reopen the question of how much freedom of speech must be curtailed in the name of legitimate campaign finance reform."