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January 29, 2008

The FEC vs. Free Speech

Today’s Downsizer-Dispatch . . .


Good news! Opponents of the Protect America Act defeated two cloture motions yesterday. We will have more on this tomorrow, but the battle isn’t over yet. Please tell your Senators to let the Protect America Act expire, and to oppose any replacement.

And now on to our regularly-scheduled Downsizer-Dispatch . . .


“It should be common sense that if individuals can speak without limit, so too can groups of individuals.
– Bradley Smith (former member of the Federal Election Commission)

SUBJECT: The FEC vs. Free Speech

A rich person, acting alone, can spend unlimited amounts to support or oppose a candidate, without government interference. But the government will interfere plenty if two, or more, less wealthy people cooperate to match what the rich person spends.

Individuals who cooperate to express opinions about candidates have to consult lawyers and accountants, file reports with the government, and potentially face large fines. They will also be limited to contributions of $5,000 each, while the rich person, acting alone, bears none of these burdens, and can spend millions.

When it comes to political campaigns, one rich person has more rights than an infinite number of poor people.

The federal government has a special gang it uses to control the right of people to cooperate to express opinions about candidates. It’s called the Federal Election Commission — FEC for short. The FEC is made up of exactly 3 Democrats and 3 Republicans. Its members never face a public election. They are appointed by the President, and approved by Congress. The FEC’s partisan composition reflects its partisan purpose.

The FEC is a cartel, designed in fact, if not necessarily with the intent, to protect incumbents from challengers while insuring that neither major party gains a legal advantage over the other. This is the reason for having exactly 3 Democrats and 3 Republicans. There is no odd-numbered vote to break ties.

The FEC serves as legislature, judge, jury, and executioner — dictating the fate of all those who join together in cooperation to express opinions about political candidates. The FEC recently made use of its legislative powers to silence and control a group known as was created by a group of cooperating individuals to endorse or oppose candidates based on their positions regarding . . . yes, you guessed it, the FEC. accepts contributions only from individuals, not corporations or unions. It neither contributes to parties nor candidates, nor coordinates with them. It is totally private and independent. And yet, the FEC has asserted — legislated? — that it has the power to regulate this group. This assertion of power by the FEC is not a final ruling, but it has already had the force of law. has decided to submit to FEC governance in order to avoid legal penalties later. Source: Associated Press.

The FEC has effectively hobbled a critic of the FEC.

No legislation by elected representatives was required to achieve this outcome. No due process in a court of law was needed to reach this verdict. Instead, it was achieved by the vote of six unelected people with a direct interest in the outcome.

There are two Constitutional problems here . . .

First, the First Amendment dictates that Congress can make no laws “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” If Congress can’t make such laws, neither can it authorize an agency of the Executive Branch, such as the FEC, to make them.

Second, the FEC, along with many other federal agencies, writes the regulations they enforce. This is unconstitutional. If the First Amendment never existed, the FEC would still have no legitimate authority to regulate political speech. That’s because regulations are laws, and the Constitution requires that all laws be written by Congress.

This is why has proposed the Write the Laws Act (WTLA) . . .

WTLA would force Congress to write specific legislation, not just general guidelines. Congress could no longer delegate to Executive Branch agencies the power to craft detailed regulations that have the force of law. For instance, Congress, not unelected FEC Commissioners, would have to decide, in advance, whether campaign laws apply to private, independent groups like

In other words, WTLA would limit Executive branch agencies like the FEC to investigation and prosecution. Federal agencies could no longer write regulations, hold hearings, issue rulings against the people they accuse, and levy penalties. Instead, they would be limited to prosecuting cases in a real federal court.

To learn more about the Write the Laws Act, click here.

Please tell your representatives to pass the “Write the Laws Act.” Tell them that Congress, not unelected bureaucrats, should write all the laws. Tell them that the Constitution requires the separation of powers, and that Executive Branch agencies have no proper authority to legislate, judge, or penalize American citizens.

Please use your personal comments to cite the case of as a specific example of why we need the “Write the Laws Act.” You can send your message here.

Thank you for being a DC Downsizer

James Wilson
Assistant to the President

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