What is SpeechNow.org v. FEC?

SpeechNow.org was a nonprofit advocacy corporation organized under 26 U.S.C. Section 501(c)(4) that sought to run broadcast advertising expressly advocating the election or defeat of federal candidates in the 2008 and 2010 election cycles. Because SpeechNow.org intended to raise money from multiple individual contributors for that purpose, the Federal Election Commission determined it was required to register as a political committee under the Federal Election Campaign Act (52 U.S.C. Section 30101 et seq.), subjecting it to FECA's contribution limits -- including the $5,000 per-year limit on contributions from individuals to multi-candidate PACs. SpeechNow.org challenged those limits in federal court, arguing that applying FECA's contribution caps to an organization making only independent expenditures was unconstitutional. The case was decided by the full D.C. Circuit sitting en banc, allowing the court to speak with maximum authority on the constitutional question.

The D.C. Circuit decided SpeechNow.org v. FEC on March 26, 2010, sixty-four days after the Supreme Court issued Citizens United v. FEC (January 21, 2010). The court's analysis began with Citizens United's central holding: independent political expenditures by corporations do not give rise to quid pro quo corruption or the appearance of such corruption, and therefore Congress may not restrict them under the First Amendment. The D.C. Circuit reasoned that if independent expenditures themselves cannot corrupt, then contributions made to fund only independent expenditure activity also cannot create the quid pro quo corruption risk that justifies FECA's contribution limits under Buckley v. Valeo (1976). The anti-corruption rationale that sustains per-election base contribution limits to candidate campaign committees -- preventing a donor from effectively purchasing an official act with a large direct contribution -- does not translate to contributions given to an organization that never gives any money directly to a candidate and spends every dollar on independent advertising. Because the government's compelling interest in preventing corruption does not support applying FECA's contribution limits to IE-only organizations, the court held those limits unconstitutional as applied to SpeechNow.org.

On one important question the court upheld the government: FECA's disclosure and reporting requirements survive as applied to IE-only committees. An organization that crosses the $1,000 threshold for political committee registration must still file periodic public reports with the Federal Election Commission identifying its donors above the applicable reporting thresholds and itemizing its expenditures. This result paralleled Citizens United's 8-1 disclosure holding (only Justice Thomas had dissented from the disclosure outcome in Citizens United). The D.C. Circuit reasoned that the government's interest in informing voters about the sources of political spending is constitutionally sufficient to sustain disclosure requirements even where contribution limits cannot be sustained. As a result, super PAC contributions and expenditures are publicly searchable at fec.gov, even though the amounts donors may contribute are uncapped.

Two months after SpeechNow.org was decided, the Federal Election Commission issued Advisory Opinion 2010-11 on July 22, 2010, responding to requests from two organizations -- Commonsense Ten and Club for Growth -- seeking clarity on whether they could operate as 'independent expenditure-only committees' accepting unlimited contributions in light of Citizens United and SpeechNow.org. The FEC confirmed that such organizations could accept unlimited contributions from individuals, corporations, and labor unions, provided they made no direct contributions to candidates or parties and did not coordinate their spending with any campaign. The FEC called these vehicles 'independent expenditure-only committees'; journalist Eliza Newlin Carney coined the popular shorthand 'super PAC,' which entered common usage rapidly. Super PAC spending has increased in every presidential election cycle since 2012 and is expected to be a defining feature of 2028 presidential campaign finance, with major candidates' affiliated super PACs raising and spending hundreds of millions of dollars in outside money.

The 2028 presidential election operates entirely within the framework SpeechNow.org and Citizens United established. Every major presidential campaign is expected to have one or more affiliated super PACs that raise and spend unlimited outside funds from corporations, unions, and wealthy individual donors -- amounts far exceeding what campaign contribution limits permit on the official authorized committee. Because coordination between a campaign committee and a super PAC converts the super PAC's spending into a regulated in-kind contribution under 52 U.S.C. Section 30116(a)(7), campaigns and their outside groups must maintain genuine operational independence. FECA's disclosure requirements, upheld in SpeechNow.org and Citizens United alike, apply to all super PAC activity: contributions above $200 and independent expenditures above applicable thresholds are publicly reported at fec.gov, allowing voters and journalists to monitor outside spending throughout the 2028 election cycle in real time.