Nearly five years ago, the U.S. Supreme Court ruled that citizens do not surrender their First Amendment rights merely because they choose to incorporate their private associations. In Citizens United, the Supreme Court held that the government cannot ban political speech just because the speaker is incorporated.
That was in January 2010. Last week, the Federal Election Commission (FEC), the agency I chair, at long last removed about five pages of regulations that were unconstitutional under Citizens United.
At the same time the commission brought its regulations into compliance with Citizens United, it also conformed them to the Supreme Court’s recent ruling in McCutcheon v. FEC, which this year struck as unconstitutional aggregate limits on contributions by individual citizens to federal political committees.
In doing so, the commission demonstrated that it can discharge its basic constitutional duty. Public officials take oaths to uphold the Constitution. They must not resist Supreme Court decisions, regardless of whether they disagree with the court’s judgments. Indeed, some may even think that conforming our agency’s regulations to the Constitution is a perfunctory task, but the commission bogged down in gridlock over a number of issues.
Five years is far too long to wait for the commission to fulfill its constitutional duty. Still, I am proud to say that the commission finally acted responsibly last week by bringing FEC regulations into compliance with the Constitution. This breakthrough was made possible through bipartisan collaboration between Vice Chairman Ann Ravel, a Democrat, and Commissioner Caroline Hunter, a Republican.
Together, these rule-makings incorporated several profound First Amendment rights in FEC regulation text. Not only did the commission institutionalize Citizens United and McCutcheon, but FEC regulations also now expressly recognize the holdings in two other significant court decisions — the U.S. Court of Appeals for the District of Columbia’s decision in SpeechNow.org v. FEC and the U.S. District Court for the District of Columbia’s decision in Carey v. FEC. The new rules will promote robust exercise of free-speech rights by all citizens and organizations, enhancing public debate with more speakers and viewpoints. More viewpoints in the public debate are important for democracy. People are empowered as citizens and voters when they can hear diverse perspectives and speakers. For too long, the law restricted the number of podiums allowed on the public debate stage, but the new FEC regulations will encourage more speakers to join in that public discourse.
In addition to removing unconstitutional regulations, the rule-making also clarified several secondary regulatory implications of Citizens United. Federal election laws are dense and complicated — too complicated. At minimum, citizens who wish to engage in democratic activities should be able to pick up the FEC’s regulations and plainly understand them. The new regulations clarify, in plain language, that nonprofit organizations and other corporations can publicize their endorsements of candidates, register citizens to vote and motivate citizens to turn out to the polls on behalf of preferred candidates, and publish voter guides that exhort citizens to vote for a particular candidate who favors the issues they care about.
Last week’s action bodes a good start for the commission to make other important rule clarifications that promote participation in the democratic process. However, one thing is for sure: Thursday was a great day for the Constitution and the commission. By the time of the next federal election, FEC regulations will be constitutional and several pages shorter, and our rules will encourage more free speech by American citizens.
Lee E. Goodman serves as chairman of the Federal Election Commission. The opinions expressed here are his own and do not necessarily represent the views of the FEC or the U.S. government.