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SpeechNow.org v. Federal Election Commission

September 28, 2009

SPEECHNOW.ORG, ET AL., PLAINTIFFS,
v.
FEDERAL ELECTION COMMISSION, DEFENDANT.



The opinion of the court was delivered by: James Robertson United States District Judge

MEMORANDUM AND FINDINGS

The plaintiffs filed a complaint and a motion for a preliminary injunction in February 2008, asserting that it was unconstitutional for the FEC to apply its contribution limit rules to a group such as Speechnow. Speechnow's business is so-called "independent expenditures": advertisements that advocate the election or defeat of particular candidates, but are not coordinated with any candidates or campaigns. Because these advertisements have the purpose of promoting candidates, and because Speechnow proposes to collect more that $1000 per year, the FEC would regulate Speechnow as a political committee, and place various limits on the contributions Speechnow could receive.

In July 2008, I issued an order denying plaintiffs' motion for a preliminary injunction. Dkt. 32. I found that the contribution limits on independent expenditure groups supported a substantial state interest, and that the plaintiffs were unlikely to succeed on the merits. Plaintiffs appealed, but simultaneously pursued the unique procedure set forth in 2 U.S.C. § 437h, under which the constitutional questions presented would be certified to the en banc Court of Appeals, following discovery and findings of fact. After I agreed to certify five such questions, plaintiffs held their appeal in abeyance.

The task before me is not to answer any constitutional questions, or to render a judgment of any kind. Instead, I am to make findings of fact that will allow the Court of Appeals to answer the constitutional questions I certify.

The parties submitted several hundred proposed findings of fact, accompanied by thousands of pages of studies, reports, articles, and expert declarations. Most of the proposed findings, and nearly all of the supporting material, centered on the question of whether or not the challenged provisions are necessary to ward off corruption -- or the appearance of corruption -- in federal elections. To my mind, the facts needed to answer that question are the kind of "facts" that legislatures find. They are not the kind of facts that can be determined in a judicial forum on the basis of a cold paper record full of hearsay and opinion. Accordingly, I directed the parties jointly to submit a set of proposed findings that focused on three questions: (1) How is SpeechNow organized, and how are the individual plaintiffs involved with it? (2) What are SpeechNow's plans? and (3) How do the challenged provisions affect SpeechNow's plans? The findings provided below draw from that document. They are essentially those findings on which the parties agree, and are the kinds of facts (and conclusions of law, see, e.g., ¶¶ 51-54) that are typically resolved in a judicial forum.

Questions for Appeal

1. Whether the contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) violate the First Amendment by preventing David Keating, SpeechNow.org's president and treasurer, from accepting contributions to SpeechNow.org in excess of the limits contained in §§ 441a(a)(1)(C) and 441a(a)(3).

2. Whether the contribution limit mandated by 2 U.S.C. § 441a(a)(1)(C) violates the First Amendment by preventing the individual plaintiffs from making contributions to SpeechNow.org in excess of $5000 per calendar year.

3. Whether the biennial aggregate contribution limit mandated by 2 U.S.C. § 441a(a)(3) violates the First Amendment by preventing Fred Young from making contributions to SpeechNow.org that would exceed his individual biennial aggregate limit.

4. Whether the organizational, administrative, and continuous reporting requirements set forth in 2 U.S.C. §§ 432, 433, and 434(a) violate the First Amendment by requiring David Keating, SpeechNow.org's president and treasurer, to register SpeechNow.org as a political committee, to adopt the organizational structure of a political committee, and to comply with the continuous reporting requirements that apply to political committees.

5. Whether 2 U.S.C. §§ 431(4) and 431(8) violate the First Amendment by requiring David Keating, SpeechNow.org's president and treasurer, to register SpeechNow.org as a political committee and comply with the organizational and continuous reporting requirements for political committees before SpeechNow.org has made any expenditures or broadcast any advertisements.

Findings of Fact

I. The Structure of SpeechNow.org and the involvement of the individual plaintiffs

A. SpeechNow.org

1. SpeechNow.org ("SpeechNow") is an unincorporated nonprofit association organized under the District of Columbia Uniform Unincorporated Nonprofit Associations Act, D.C. Code § 29- 971.01 et seq., and registered as a "political organization" under section 527 of the Internal Revenue Code. Keating Decl., Ex. G, SpeechNow.org Internal Revenue Form 8871.

2. The general powers of SpeechNow lie with five voting "members": David Keating, Jon Coupal, Edward Crane, Daniel Shapiro, and Richard Marder. Bylaws, Art. I, § 5; Art. III, §§ 1, 2.

3. SpeechNow's bylaws designate four officers of the association: president, vice president, secretary, and treasurer. Id., Art. V, § 1. Keating is the president and treasurer of SpeechNow, and he administers all of the association's affairs. Keating Decl. at ¶ 2. Coupal is the vice president and secretary. Keating Decl., Ex. D, Member Action by Written Consent in Lieu of an Organizational Meeting of SpeechNow.

4. SpeechNow undertakes that it will operate solely on private donations from individuals. Keating Decl. at ¶ 8; Bylaws, Art. II. Under its bylaws, SpeechNow cannot accept, directly or indirectly, any donations or anything of value from business corporations, labor organizations, national banks, federal government contractors, foreign nationals, political parties, or political committees. Keating Decl. at ¶ 8; Bylaws, Art. VI, § 9; Art X, § 1.

5. Under its bylaws, SpeechNow cannot engage in business activities, including the provision of any goods or services, or any advertising or promotional activity that resulting in income to SpeechNow, except as such activity may attract membership dues or donations. Keating Decl. at ¶ 12. SpeechNow cannot offer to any donors or members any benefit that would operate as a disincentive for them to disassociate with SpeechNow on the basis of the organization's position on a political issue, and it cannot offer its donors or members credit cards, insurance policies, savings plans, training, education, business information, or any other benefits other than those that are necessary to enable recipients to engage in the promotion of SpeechNow's political ideas. Keating Decl. at ¶ 8; Bylaws, Art. VI, §§ 6, 8.

6. SpeechNow is independent of any political candidates, political committees, and political party committees, within the meaning of federal campaign finance statutes and the FEC's coordination rules, and its bylaws require that it operate wholly independently of any of these entities. Keating Decl. at ¶ 9; Bylaws, Art. VI, § 9; Art. X, §§ 2-10. SpeechNow cannot make contributions or donations of any kind directly or indirectly to any FEC-regulated candidate or political committee, and it cannot coordinate its activities, as defined in 2 U.S.C. §§ 441a(a)(7)(B) & (C) and 11 C.F.R. Part 109, with any candidates, national, state, district, or local political party committees, or their agents. Bylaws, Art. VI § 10; Art. X §§ 2-10.

7. SpeechNow's bylaws prohibit it from using any vendors for services in producing or distributing its communications featuring a candidate for federal office if that vendor was also engaged during the same election cycle by the candidate featured in the communication. Bylaws, Art. X, § 2. The bylaws similarly prohibit SpeechNow from employing any individuals who were employed during the same election cycle by any candidate featured in any of SpeechNow's communications. Id., Art. X, § 3.

8. SpeechNow's bylaws promote the independence of the association's speech by requiring members, officers, employees, and agents of the association to read and understand the FEC's rules concerning coordination, 11 C.F.R. § 109.21, Bylaws, Art. X, § 4, and by prohibiting them from engaging in activities that might lead to coordination with candidates. Bylaws, Art. X, §§ 5-10.

9. Under SpeechNow's bylaws, all of the obligations and prohibitions found in the bylaws must be communicated to all members, officers, employees, agents, and donors of SpeechNow, and employees and agents must sign an acknowledgment of these obligations as a condition of participating in any association activities. Bylaws, Art. X, § 11. Each of SpeechNow's members and officers has signed such an acknowledgment. Keating Decl.

Ex. I, SpeechNow Affirmation.

10. SpeechNow's purpose is "expressly advocating the election of candidates who support rights to free speech and association and the defeat of candidates who oppose those rights, particularly by ...


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