FEC Republicans Allow Public a Chance to Comment on Free Speech on the Internet

Wednesday, the Federal Election Commission approved a draft Notice of Proposed Rulemaking on Internet Communication Disclaimers and the Definition of "Public Communication":

The Commission approved a Draft Notice of Proposed Rulemaking requesting comment on two alternative proposals to amend its regulations concerning disclaimers on public communications on the internet that contain express advocacy, solicit contributions, or are made by political committees. The approved draft notice also requests comment on proposed changes to the definition of “public communication.” Comments must be received on or before 60 days after the date of publication in the Federal Register. The Commission will hold a public hearing on this notice on June 27, 2018.

Thanks to the steadfast defense of the First Amendment and the rule of law by the Republican FEC commissioners, the Democrat commissioners have not be successful in their efforts to expand and change the rules regarding Internet advertising ex post, in response to complaints about Internet activities that are clearly legal and/or unregulated under the FEC's current regulations and policies.    The FEC Democrats have, at times, also supported unrealistic requirements that would make disclaimers take up the entirety of small Internet ads (such as those on Twitter or mobile devices).  

Through the efforts of the Republican commissioners, the FEC is going about regulating this important area in the correct way, through notice and comment rule making with ample opportunity for the regulated community and interested parties to speak on the issue and with plenty of notice to the regulated community on any changes in the rules.  All along, the Republican commissioners have supported a reasonable, common-sense approach to regulating Internet communications that protects the public's interests and comports with the goals of campaign finance regulation while taking into account the constraints and opportunities provided by changes in technology, all while protecting the political speech rights of Americans.

The RNLA will provide in-depth analysis of the proposals in this NPRM in the coming weeks.  But its very existence is a testament to the leadership of Chair Caroline Hunter, Commissioner Matthew Petersen, former Commissioner Lee Goodman, and the many Republican FEC commissioners who have gone before them.

Lee Goodman: Happy Warrior for the First Amendment on the FEC

Yesterday was Republican Commissioner Lee Goodman's last day on the Federal Election Commission.  RNLA Vice President for Election Education David Warrington described some of his accomplishments, fighting to protect First Amendment rights and the rule of law, on the FEC in The Hill:

The left often charges that the FEC is a “dysfunctional” agency. Goodman, however, refuted the “dysfunction” charge using the FEC’s own data, showing that the agency acted in a bipartisan fashion on 93 percent of all votes taken. Goodman exposed what the left really meant by “dysfunction” at the FEC — failing to agree with the Democrats. To the dismay of Democrats, Goodman and his fellow Republican commissioners refused to ignore existing law and change the rules governing Americans’ political speech. . . . 

Goodman was committed to keeping speech on the internet free of new regulation. Despite what you might read in the news, paid advertisements on the internet are subject to the full range of FEC regulations, just like newspaper or television ads. Since 2006, Internet activities posted for free — blog posts, Facebook posts, tweets, YouTube videos, etc. — have been exempt from FEC regulations. Yet the FEC Democrats would like nothing more than to regulate these everyday activities and have been creatively trying to find ways around the longstanding “Internet Exemption.” Standing in their way have been Lee Goodman and the other Republican commissioners. . . . 

As the Democrats have used alleged Russian interference in the 2016 election as an excuse to regulate social media, Lee Goodman has persistently pointed out their errors: foreign paid ads are already illegal and it is impractical to assume the FEC could police disclaimers on ads placed on foreign servers, so the real burden of any social media regulation would fall on American citizens exercising their First Amendment rights. . . . 

Democrats are eager to use campaign finance laws as a tool to intimidate and suppress the speech of their political opponents. Lee Goodman, defender of the First Amendment stood in their way and thereby protected the rights of all Americans — from their right not to be hauled before his agency for a tweet, to the right to a press free from government interference, to the right to fair notice of what activity is regulated or prohibited. Thank you, Commissioner Goodman.

We agree - thank you, Mr. Goodman, for your commitment to the rule of law and the Constitution and protecting the rights of all Americans during your service on the FEC. 

Commissioner Lee Goodman Defended 1st Amendment and Rule of Law at FEC

Republican Federal Election Commission Commissioner Lee Goodman announced today that he will resign from the FEC on February 16 to join the political law practice at Wiley Rein.  In his four years of service at the FEC, Commissioner Goodman has been a stalwart defender of the First Amendment, due process, and the rule of law, often speaking out strongly against the efforts of his Democratic colleagues to regulate political speech on the Internet and change the rules governing political activity after the fact and without following proper regulatory procedures.

Commissioner Goodman described some of the achievements of the FEC during his tenure in his resignation letter to President Trump:

We issued several advisory opinions recognizing the use of new technologies to galvanize political participation . . . .  Meanwhile, we restrained unlawful efforts to regulate, and in some cases censor, American citizens’ political opinions on YouTube and Twitter, as well as the freedom of press outlets like Fox News and WCVB-TV of Boston to make editorial decisions concerning their political coverage. . . .  

Most importantly, I have faithfully discharged my responsibility to balance the agency's regulatory objectives with the First Amendment rights it regulates.  Since the agency’s inception, the Federal Election Commission’s unique mandate to respect the core constitutional rights of citizens acting, speaking and associating for democratic purposes has provoked criticism from those who disagree with the balance drawn.  Some would even prefer the Commission ignore the First Amendment altogether.  But protecting First Amendment rights is an inherent part of the Commission’s mission. Thus, I have endeavored throughout my service to preserve the Constitutional right of American citizens to speak, hear, and think freely about their democracy. It has been my duty and privilege to defend this fundamental human freedom.

Commissioner Goodman's steadfast efforts to protect Americans' rights of free speech and due process have been recognized by the election law community.  RNLA leaders and members were quick to praise him when his resignation was announced:

RNLA President Elliot Berke: "Lee's tenure on the FEC was marked by grace, dignity, and professionalism. He is a good man and a good friend and I wish him nothing but the best as he returns to the private sector." 

RNLA Chair John Ryder: "Lee Goodman is a fine lawyer.  The FEC and the country were fortunate to have his service over the past several years.  His strong defense of the First Amendment rights of all Americans will be missed on the commission." 

RNLA Vice President for Election Education David Warrington: "As an FEC Commissioner and former Chairman of the agency, Lee was a champion for the First Amendment and the right of all Americans to participate in the political process.  He defended those rights at a critical time when they were under assault by those inside and outside the government that sought to restrict the freedoms of speech, assembly, and the press.  I am sure he will continue fighting for those same principles as he returns to the private practice of law." 

RNLA Member (and Mr. Goodman's future Wiley Rein colleague) Eric Wang: "Lee was a great champion for protecting political speech on the Internet from excessive regulation by the FEC, and for keeping the agency from interfering with the news media.  Lee also fought hard to ease the regulatory burden on the beleaguered national and state party committees.  I look forward to working with Lee as he presses on with these battles on behalf of clients."

RNLA Executive Director Michael Thielen: "All Americans are indebted to Lee Goodman for his work to preserve First Amendment rights and his efforts to prevent the FEC Democrats from politicizing the FEC to achieve their liberal policy goals.  Lee is passionate about the Constitution, the rule of law, and free speech, and he will represent his new clients at Wiley Rein well.

For some examples of the many ways in which Commissioner Goodman has defended the First Amendment and the rule of law at the FEC, read our past blog posts on him here.  Thank you, Commissioner Goodman, for your faithful service to our country!

Be Careful What You Tweet - FEC Democrats Would Like Tweets to Be Contributions

In their latest efforts to quietly change the campaign finance rules for internet communications ex post, the Democrats on the Federal Election Commission voted last month to dismiss a complaint against a non-profit organization, Illinois Family Action, for tweeting a YouTube video from a congressional candidate.  They voted to dismiss the complaint not because communicating for free on the internet has been exempt from federal campaign finance law since 2006 but because the amount spent on the tweet (in staff time, electricity, etc.) was de minimis.  It certainly was de minimis, as a tweet takes less than a minute to draft and send, but the fact that the Democrats would vote for, and the General Counsel's office would draft, a statement of facts and law that changed the rules applying to the tweet after the fact is deeply disturbing.

The Republican FEC commissioners' Statement of Reasons outlined multiple legal rules that render a free tweet exempt from campaign finance regulation under federal law: 

Consequently, [the Democratic commissioners'] approach would create an internal conflict in the Commission's rules, subjecting to regulation any unsuspecting person who uses a free Twitter account to send a link to a campaign video. . . . Accordingly, by the basic rules of logic, because IFA's tweet is exempt from the definition of public communication under section 109.21 and exempt from the definition of contribution and expenditure under sections 100.94 and 100.155, the tweet cannot be considered a contribution under section 109.23.

They concluded by noting how the Democratic commissioners' position would violate fundamental principles of fair notice (footnotes omitted):

In sum, considering the statutory, regulatory, and policy backdrop set forth above, we could not interpret our regulations to conclude that IFA made a contribution to the Kinzler Committee merely by tweeting a link to a Kinzler Committee YouTube video. Our colleagues disagreed with our conclusion that IFA's tweet is exempt from regulation and instead voted for a draft Factual and Legal Analysis that implied IFA's tweet might constitute an in-kind contribution, but dismissed the violation merely because the tweet's value was likely de minimis. We fundamentally disagree with our colleagues' legal interpretation because, in contravention of the Commission's 2006 Internet Exemption, it would erroneously leave free postings on the Internet subject to Commission regulation based on case-by-case judgments of what does or does not constitute de minimis value. 

Furthermore, when the Commission adopted the Internet Exemption in 2006, it largely freed independent political discourse on the Internet from the threat of federal investigation and punishment. The Commission notified the public through that rulemaking of the comprehensive scope of the freedom it was protecting. The public has the right to rely on the Commission's clear statements published in the Federal Register as to how it will interpret and apply its regulations and the right to clear rules regulating First Amendment activity. The need for clarity and consistency is even more acute in the Commission's enforcement process, when the agency relies on its interpretation of its regulations to punish First Amendment activity. 

In our view, dismissing this matter as an exercise of our prosecutorial discretion rather than as a matter of law in an effort to preserve the Commission's claim to legal authority to regulate and punish certain online political activity under a strained (and previously unacknowledged) regulatory theory would chill clearly protected political speech, raise serious fair notice concems, and ultimately prove untenable. For these reasons, we voted to find no reason to believe that IFA made a prohibited corporate contribution when it tweeted a hyperlink to a federal candidate's campaign video. 

We are grateful for Commissioners Caroline Hunter, Lee Goodman, and Matthew Petersen for standing up for the rule of law and the First Amendment and not allowing the Democratic commissioners to quietly change the law regulating Americans' everyday conduct without proper procedures and notice.

FEC Chairman Lee Goodman - A Champion in Protecting the First Amendment

Last spring, the RNLA was thrilled to have Federal Election Commissioner (FEC) Lee Goodman speak on a panel at the 2017 National Policy Conference at the National Press Club.  The panel, titled, "Election Law Update: Vote Fraud Commission and Campaign Finance" featured Commissioner Goodman, Don Palmer, formerly of the Virginia Board of Elections, and Hans von Spakovsky, of the Heritage foundation.

Commissioner Goodman began his presentation by noting the importance of the First Amendment within the FEC:

"This agency was created to regulate in an area permeated in everything it does by the solemn First Amendment rights of American citizens to associate and speak.  So, if I am to be criticized honestly for a restrained approach, my critics should at least acknowledge the profound importance of the First Amendment and what I am trying to do when I am trying to strike a balance between regulation and First Amendment freedoms."

He also went on to discuss the three major First Amendment issues facing the Commission currently.  The first of the First Amendment issues facing the FEC is free speech and the the rise of the internet.  In 2006, the Commission adopted a rule that exempted the internet from their regulation for those individuals and entities using personal, at-home-computers (with and exception being paying a fee on a third party's website, where the Commission would intervene and regulate).   He notes:

"Fast forward to the past two or three years and my Democratic colleagues at the Commission have begun to rethink the breadth of that freedom on the internet.  And in case after case we are splitting our votes 3-3 with the three Republicans observing the exemption - a robust interpretation of the exemption under the 2006 rule-making - and our colleagues voting to find nooks and crannies of regulation on an otherwise broad exemption."

The second point Commissioner Goodman points a lack of sensitivity of free press rights of press publishers.  He pointed to the example to the Fox News debate in 2016 where Fox News added an undercard debate of lower-polling Presidential candidates.  A suit was filed (by a candidate that failed to make either debate) claiming that Fox News made "unlawful corporate contributions to the 17 candidates by changing its criteria."  Goodman states of his colleagues:

"The office of General Counsel at the FEC recommended a finding that Fox News made illegal corporate contributions.  Three Democrat Commissioners concluded that Fox News had violated the law.  Two of my Democrat colleagues voted to punish Fox News, to impose civil penalties on Fox News for violating the law, despite the existence of a press exemption that exempts the press from our regulation altogether - an exemption that has been there since 1974."

The third and final point that Commissioner Goodman makes are associational privacy or what is known as the "dark money" debate.  He states:

"If you read popular press, you'll believe that our nation's federal elections are a wash in dark money flooding the airwaves.  Dark money is spending by groups that do not have the major purpose of being a political committee. 

 We are engaged in an ongoing debate over the of where your associational privacy ends and our regulatory jurisdiction begins.  If my Democratic colleagues have their way, every little political thing you do ... will evidence your political purposes broadly defined and you will be swept into the federal jurisdiction of the federal government and you will surrender your associational privacy."

The RNLA thanks Commissioner Goodman for leading the fight to protect our First Amendment.  On Wednesday, January 17, the RNLA D.C. Young Lawyers Chapter will be hosting an exclusive reception featuring Commissioner Goodman.  To RSVP to this event, please click here.

To view the video of Commissioner Goodman's panel from the 2017 National Policy Conference in its entirety, please click here.

Weintraub Uses Russian Meddling As Excuse To Restrict Internet Speech

RNLA Vice President for Election Education David Warrington wrote today in the Daily Caller about how Democratic FEC Commissioner Ellen Weintraub, like other Democrats and liberals, is using the alleged interference of Russia in last year's election as an excuse to regulate political speech.  Mr. Warrington explained how Commissioner Weintraub's statements in a recent FEC meeting showed her political savvy and intent to regulate internet speech:

Weintraub’s most recent choice of words is akin to the proverbial camel’s nose under the tent.  Rather than lead with what she actually wants – full regulation of speech on the Internet – she was careful to open her conversation without a specific proposal.  She knows the public backlash her fellow traveler former FEC Commissioner Ann Ravel encountered after she voted to regulate YouTube videos disseminated for free accompanied by a clarion call for the FEC to change its restrained approach to political speech on the Internet. 

That was a big mistake, substantively and politically. . . . Weintraub is more slippery than Ravel.  Where Ravel would walk off a political plank, Weintraub knows how to be politically expedient above all else.  For example, pining for support of Senator Schumer’s law firm to keep her post (she’s 16 years into a six-year term and wants to stay), she recently broke with reformers in voting to greenlight a Democrat group’s online fundraising application.  That vote earned her rebukes from reformers, but might have won her quid pro quo political support to stay on the FEC a little while longer. . . . But Weintraub’s regulatory plans for the Internet have been just as clear as Ravel’s in a series of votes in FEC regulatory actions. . . .

Unfortunately, while foreign influence is the excuse for the calls for increased regulation, the speech that will actually be regulated is political speech by American citizens: 

Weintraub said she will start her attack on online free speech small by tweaking FEC disclaimer requirements for online paid ads.  Republican Commissioner Lee Goodman, an Internet freedom advocate, said (at minute 13:30) he was suspicious of Weintraub’s objectives, because demanding disclaimers on foreign ads would be illogical.  Foreign paid ads already are prohibited by law.  Adding a disclaimer requirement for ads that already are illegal would not be effective.  Furthermore, he questioned whether the United States could effectively police disclaimers on ads posted by foreigners, on foreign computers, through foreign servers, on foreign soil—it is, after all, the World Wide Web. 

Given these obvious limitations, Weintraub’s true aim, just like Ravel’s, must be greater burdens on all political communications by American citizens online.  YouTube videos, Facebook posts, and webcasts streamed over the websites of American citizens will be fully regulated—starting small with disclaimers and soon moving to expenditure reports and even censorship of links, re-tweets and free online interviews under broad theories of “coordination” and prohibited corporate in-kind contributions.

Mr. Warrington concluded by pointing out that if the result of any foreign advertisements is a restriction of free speech, the Russians would be pleased.  If we truly want to prevent foreign powers and actors from improper influence in our elections, we need to zealously protect free speech.

Liberals' Russia Narrative Crumbles as They Rush to Regulate Online Speech

The narrative of Russian interference with the 2016 election that has been one of liberals' favorite tools to attempt to undermine the legitimacy of the Trump Presidency continues to crumble.  

Last week, we noted how the Department of Homeland Security had finally notified 21 states where they had evidence of Russian activity regarding their election systems.  Except now California and Wisconsin have been told that this was not actually true, and the election hacking narrative, which started with the Obama DHS, may collapse even further.

Now, Facebook has delivered ads purchased by Russians to Congress and issued some FAQs about them, including these revealing facts (emphasis added):

• An estimated 10 million people in the US saw the ads. We were able to approximate the number of unique people (“reach”) who saw at least one of these ads, with our best modeling [RNLA note: The number of registered voters during the 2016 election was over 157 million and the total citizens of voting age was over 224 million.] 

• 44% of total ad impressions (number of times ads were displayed) were before the US election on November 8, 2016; 56% were after the election. 

• Roughly 25% of the ads were never shown to anyone. That’s because advertising auctions are designed so that ads reach people based on relevance, and certain ads may not reach anyone as a result. 

• For 50% of the ads, less than $3 was spent; for 99% of the ads, less than $1,000 was spent.

But, before their narrative completely crumbles, liberals are rushing to use it as an excuse to regulate online speech, which has long been a goal of campaign finance "reformers" such as former FEC Commissioner Ann Ravel, who advocated overturning the FEC's longstanding exemption of internet activity from certain regulations to apply the regulations to conservative YouTube videos ex post.  Liberal outlet Quartz recently demonstrated how the "reform" community is using the Russian Facebook ads as a pretext to argue for government control of speech by American citizens on the internet (while non-ironically lamenting that Facebook had failed to reach out to any "experts" in the "reform" community as it amended its ad policies).  And Democratic Senators Amy Klobuchar and Mark Warner are expected to introduce legislation to regulate political advertising online soon (more on that here once it is introduced).

FEC Commissioner Lee Goodman's TechFreedom podcast on these issues, that we highlighted on Monday, summarizes the serious constitutional dangers with the liberals' rush to regulate and what factors should be considered in a more measured approach that respects Americans' important political speech rights on the internet.

FEC Commissioner Lee Goodman on Rush to Regulate Social Media

FEC Commissioner Lee Goodman spoke to the TechFreedom podcast about alleged Russian attempts to influence the 2016 election and what our response should be to it.  We covered this twice last week (Thursday and Friday), but Commissioner Goodman's important message bears repeating:

My primary concern is that we not overreact to things that we cannot control and out of frustration, start regulating American citizens and make them guilty or responsible or punish them for what some bad actors do abroad. . . . It would be very difficult for the U.S. government to enforce our laws against a foreign person sitting on foreign soil posting information about U.S. politics on a foreign computer on a foreign server.  That would be very difficult.  We shouldn't, out of frustration, start regulating and punishing American citizens in their use of the internet because there's a lot of social good in the United States from that use. . . . 

Recent news reports are that there may have been $100,000 to $150,000 in ads spent by foreign sources on a range of subjects, some of which may not be in the Federal Election Commission's jurisdiction but under the jurisdiction of the Department of Justice in the Foreign Agents Registration Act.  But those ads are a drop in the ocean of information available from foreign sources on the world wide web. . . . We have all sorts of foreign information available to use from U.S. politics generally. . . . 

I'm not sympathetic to foreign meddling or influence in our elections.  I'm just saying that it is ubiquitous, ok?  Let's not go attacking the free speech rights of American citizens first as an effort to get to capillaries of foreign speech.  Let's target foreign speakers in whatever we do, and let's not at first target the civil liberties of American citizens. . . . We have a long history of overreaction and diminishing the civil liberties of American citizens in order to get at some of the pores that may be open for foreign influence, and I say let's get at the pores. . . .

The entire podcast provides an excellent overview of this issue, the factual realities, current law, and how the free speech of Americans could be threatened by a rush to regulate political advertising on the internet. 

FEC Democrats Vote in Favor of Regulating the Internet...Again

We recently discussed how the three Democrats on the FEC voted to ignore the settled exemption from campaign finance regulations granted to internet communications in the complaint against Foundation for a Secure and Prosperous America:

Democratic Federal Election Commissioner Ann Ravel moved this week to deny a conservative nonprofit group legal protections that exempt most online political communications from federal political spending limits and disclosure laws. 

Experts say the move is an attempt to undermine the “internet exemption,” as the provision is known, without going through normal legislative and regulatory processes. In effect, they say, Ravel was denying legal protections to the group simply because she disagrees that those protections should exist.  

The FEC Democrats voted against applying the internet exemption in yet another complaint regarding internet videos:

The commission also split 3-3 in a recent case that asked if the Internet exemption also exempts a webcast of a discussion with political candidates that provides a link to contribute to candidates. The Republicans said it was exempt; the Democrats disagreed.  

Goodman, a Republican, said the decisions are likely to have a chilling effect on free speech. 

“Political speakers who are careful about what they do, and who are advised by lawyers, may be chilled from communicating on the Internet, in the light of a 3-3 divide on the commission,” he said. “There is definitely a chilling effect.”

As the FEC is currently constituted, the three Republican commissioners protect against the Democrat commissioners ignoring the law to regulate speech on the internet, but there are proposals to change the composition of the FEC:

Goodman said while the 3-3 split on the commission stalls any Internet regulatory push, he warned that if legislation in Congress passes to make the body a five-person body, it could give the Democrats the majority they need. 

“If the commission were to be reconstituted, I believe we’re looking at full-blown regulation of political speech on the Internet,” he warned.

We thank Chairman Petersen and Commissioners Goodman and Hunter for standing up for the rule of law and protecting free speech on the internet.

Obama's Lawyer Doesn't Believe the 1st Amendment Applies to Fox News!

As we described yesterday, Fox News was targeted by FEC Democrats for hosting a Republican presidential primary debate.  

President Obama's lawyer Bob Bauer, on his blog, defends Commissioner Weintraub, criticizes Commissioner Goodman, and brushes off as inconsequential Fox News' profound free press rights.  He acknowledges that Commissioner Weintraub voted to find Fox News violated the law for engaging in legitimate, wholly constructive press activity.  But he defends Commissioner Weintraub on the theory that outlawing -- even technically -- press activity is more important in this case than disrupting the prestige and decorum at the FEC. What a profoundly disturbing suggestion by one generally regarded as a civil libertarian who represents the First Amendment rights of oppressed political actors before the government.  

More troubling, Mr. Bauer completely ignores the fact that two Commissioners voted to actually PUNISH (Mr. Bauer places this word in quotation marks as if to question the accuracy of the suggestion) Fox News in this case.  What?  No discussion of that remarkable action by two Commissioners?  Ignoring the votes won't diminish the dramatic chilling impact on free press rights, Mr. Bauer.

Why such a blithe treatment of press rights by First Amendment lawyer Bob Bauer?  Could it be this case is about Fox News?  Mr. Bauer, former White House Counsel, is married to Anita Dunn, instigator of the White House's war against Fox News several years ago.  That might explain why in this case decorum at the FEC matters more than free press rights.  

Fox News Targeted by FEC Democrats for Allowing Candidates a Forum to Speak on Issues

Democrats in federal agencies continue the assault on the rights of U.S. citizens by forcing partisan policy through executive actions and regulatory overreach in place of actual legislation or the rule of law. The separation of powers has never been more crucial in our history than it is right now because of the recent regulation trends. As a citizen, regardless of your party affiliation, you should be paying extremely close attention to the Obama administration's continued attempts to circumnavigate and regulate the greatest of all of our freedoms: the freedom of speech.

A complaint was filed on August 3, 2015, and since that time there appears to be a little problem between the FEC Democrats and Fox News.

Finally making good on long-harbored anger at conservative media, Democrats on the Federal Election Commission voted in secret to punish Fox News' sponsorship of a Republican presidential debate, using an obscure law to charge the network with helping those on stage.

It is the first time in history that members of the FEC voted to punish a media outlet's debate sponsorship, and it follows several years of Democratic threats against conservative media and websites like the Drudge Report . . .

Thankfully the Republicans disagreed and caused a 3-3 tie, resulting in no fines being levied. Still, it gives reason for pause. Why is encouraging more speech and sharing more information about our candidates a bad thing, on either side? Who truly believes that the government should control press room decisions when there are specifically express exceptions for the press? Most are left scratching their heads attempting to understand what it is the Democrats were hoping to accomplish other than silencing conservative speech, and that is the main point. Republican FEC Commissioner Lee Goodman spoke specifically to that fact in a statement.

Astonishingly, three FEC commissioners (Weintraub, Ravel, Walther) concluded that Fox News violated the Federal Election Campaign Act by making a prohibited corporate contribution to the 7 candidates invited to the debate. That is, by expanding the debate format to a broader group of candidates, Fox News violated the law . . .

Three FEC commissioners (Lee Goodman, Matthew Petersen, Caroline Hunter) blocked this regulatory overreach into newsroom editorial judgments. Commissioners Petersen and Hunter and I voted to free Fox News' editorial judgments from the FEC's regulatory jurisdiction under the Free Press Clause of the Constitution and the Press Exemption in the Federal Election Campaign Act. Congress included in the Act an explicit exemption for the press and we respect Congress' decision.

The Commissioners who blocked the left-leaning fine released a fairly straightforward statement of reasons.

The attempts by the left to silence speech are well documented and continue to proliferate agency by agency. At some point, if all remains constant, the dam will break either through legislation or regulatory overreach. Our rights are being eroded and history shows us that it starts with political speech and ends with complete censorship. Before you know it, the government will be telling us what we can and cannot say about our leaders, levying fines for posting YouTube® videos expressing our thoughts/opinions or sharing our religious beliefs with others on Facebook®. The solution is simple. If you do not agree with a point of view, turn it off, or better yet, simply do not watch it. Political correctness is slowly crippling what is best about our country: the right to disagree and debate varying points of view. Without that right, we cease to be truly free. 

Lee Goodman – A Steadfast Defender of the First Amendment – Part II

A couple weeks ago we posted a blog on Lee Goodman and his passion for protecting the First Amendment.  That blog closed with the following:

Regulation of speech is rarely a good thing and even more rarely does it help to provide any feasible solutions to actual problems. As Goodman pointed out, this is what separates the United States from other “totalitarian regimes.”  As the assault on First Amendment continues, it has become clear that we need voices like Goodman’s to speak out against those who seek to silence the speech and ideas of others, lest we allow ourselves to develop into one of those totalitarian regimes.

Goodman knew and understood this fact better than most. It became his purpose at the FEC. We should all strive to cling to it so dearly. Goodman’s passion and belief in this idea is easily conveyed and received when you listen to him speak. 

[. . . ] the so called pejorative dark money debate is an effort by those who want to regulate more speech to use the power of government to reach further into issue advocacy and the private associational rights of issue advocacy organizations to disclose all of their members and donors when they engage in issue advocacy.

[. . . ] In 2012 cycle, 7.3 billion dollars in electoral expenditures were publicly disclosed through the Federal Election Commission.  About three to four percent of that total was spent by issue advocacy groups that disclosed their expenditures but did not disclose who their members and donors were because that was part of their freedom of association.

Isn’t it far preferable to let that speech be heard and let that speech be debated on the merits rather than vilifying the speakers and trying to push people out of the public square? [. . .]

As time has continued to pass, many have come to realize just how substantial and systematic the attacks on First Amendment have become. Both Democratic presidential candidates have attacked the Citizens United decision. Both have stated that they will only appoint a Justice who passes a litmus test for overturning it despite ABA regulations that require the exact opposite. They have plans to pursue whatever means necessary to strip freedom of speech from this country. Goodman knew, even back in 2014, that this issue would continue to perpetuate attacks on our freedom. And so, I leave you with his closing.

[. . .] The line between free speech and censorship is a very fine and fragile and delicate line. And you have one seat on the Supreme Court and one seat on a six member Federal Election Commission holding their fingers in the dyke to protect free speech rights against an over intrusive government. As for me, I want to ensure all of you liberty minded people that I will always be guided by the Constitution and I will always err on the side of freedom.

If that message did not convey the warning clearly enough, remember that since his address, we have lost that seat on the Supreme Court and the attacks on freedom of speech have become more frequent and severe from no less than the left’s Presidential hopefuls. This election cycle is crucial to protecting the freedom of speech, not only for this generation but hopefully for the many that will follow.

Thank you, Lee Goodman, for everything you have done.

Lee Goodman – A Steadfast Defender of the First Amendment – Part I

Well, I’m Lee Goodman, I’m Chairman of the Federal Election Committee and I’m here to help.  – Lee Goodman, LPAC 2014

It is not very often that I start a blog off with a quote; however, given the impact Goodman’s speech undoubtedly had on those who were fortunate enough to attend Liberty Political Action Conference back in 2014 or who have had the pleasure of viewing it since, it seemed a fitting introduction for a series of blog posts. 

Goodman has spent the bulk of his time with the FEC defending the First Amendment. This speech came at a time where he was personally subject to two federal suits for standing up for the constitution and the rights conferred upon us all by the First Amendment. Goodman continued . . .

We know that what distinguishes America from totalitarian regimes is fundamentally the First Amendment, which is the first freedom on which all of our other freedoms are based [. . . ]

The First Amendment is the very foundation of all our freedoms. If we choose to allow others to grind down those freedoms then we will undoubtedly lose our way. This should be a primary concern for everyone, right or left. Our ability to discuss and debate issues has come under attack. Sharing or speaking opinions, even unpopular ones, is how this country was born. The left seeks to overturn Citizens United (either by a decision or Constitutional Amendment) and it clearly is a step in the wrong direction. The ability to communicate, share diverse perspectives, and generally disagree with others' opinions are what makes this country the icon of freedom in the world today. Simply because you do not agree with something someone else says does not mean that an individual or association should not have the right to say it.

[T]hen in 2010, in the Citizens United v. FEC decision, the Supreme Court recognized that people form associations to speak and they do not shed their First Amendment rights just because they incorporate their association.

Associations serve only to amplify the voice of the individual and in turn, clarify the common voice of the association. An association is merely a group of likeminded individuals working together toward a common goal. Sharing their opinions with the public demonstrates the most basic of freedoms provided by the Constitution. This does not mean that the public has to listen to them. The holding in Citizens United affirms that speech expressed by individuals in this context was meant to be protected. To seek its overturning is to seek the ruination of First Amendment itself.

Now, those people who prefer more regulation of speech, and prefer to banish certain speakers and their ideas from the public debate are very frustrated with those decisions.

Regulation of speech is rarely a good thing and even more rarely does it help to provide any feasible solutions to actual problems. As Goodman pointed out, this is what separates the United States from other “totalitarian regimes.”  As the assault on First Amendment continues, it has become clear that we need voices like Goodman’s to speak out against those who seek to silence the speech and ideas of others, lest we allow ourselves to develop into one of those totalitarian regimes. 

Commissioner Goodman is Fighting For Free Speech and Increased Participation

Federal Elections Commission (FEC) Commissioner Lee Goodman is fighting the good fight over at the FEC.  Lee is a former first Vice President of the RNLA.  However, Lee is fighting for the rights of ALL parties and people to speak in two ways:

1.  Commissioner Goodman writes about efforts to regulate the parties and the presidential debate process:

I write separately, however, to express more fundamental concerns with the Commission’s regulation of press organizations that sponsor candidate debates as part of their news coverage and programming.  For too long, the Commission has ignored the congressional and constitutional mandates to unconditionally protect the free press rights of media entities.  Our shared American democracy thrives only when government respects the media’s freedom and independence to inform the public about public affairs.  But thirty-five years ago, the Commission made a regulatory error that has encroached upon that autonomy ever since.

 As the Washington Examiner notes:

His memo came on the heels of an FEC decision to stiff-arm a demand from an outside group seeking to require media outlets to include third-party candidates in debate. But in shrugging off the demand, the FEC also maintained a 1979 ruling that tells the media how to run debates. Goodman has been warning for two years of Democratic efforts on the evenly-split FEC to regulate websites and press outlets, especially conservative ones like Drudge. His efforts so far have kept the regulations in the closet. Goodman, formerly a Virginia Republican Party counsel, wrote, "Our shared Democracy thrives only when the government respects the media's freedom and independence to inform the public about public affairs. But 35 years ago, the commission made a regulatory error that has encroached upon that autonomy ever since."

2.  Commissioner Goodman also wrote a piece about strengthening the parties.  On Tuesday, the FEC will “vote on a proposal to revive political parties and make them more effective at mobilizing populist political participation.”  Commissioner Goodman notes how important this is for a number of reasons, including what should be non-controversial such as voter registration, including:

Second, the FEC should expand regulatory freedom for parties to engage volunteers in democratic activities such as volunteer mail drives, phone banks and literature distribution. Current laws either prohibit or are so vague that they chill parties from engaging armies of volunteers to engage in time-honored voter contacts and door knocking campaigns. Third, the FEC needs to give the parties more regulatory freedom to register voters and turn voters out to the polls. The current proposal would allow state and local parties greater freedom to engage in this profoundly important democratic activity.

This has support across the ideological spectrum from the libertarian right to the radical left:

For decades political scientists have lamented the demise of political parties and have blamed government regulatory policy. The near death of parties has been the subject of over a dozen recent reports by practitioners and lawyers for the two major parties and minor parties alike, party experts, academics and think tanks ranging from the libertarian Cato Institute and the American Enterprise Institute to the pro-regulatory Brennan Center for Justice. The press also has recognized the problem, from Politico's "Last Call for State Parties" (Feb. 16, 2014) to Time's "Party Down" (March 3, 2014), observing that America's political parties are no longer effective institutions.

Thank you Commissioner Goodman for working to strengthen Democracy on a bipartisan basis. 

CREW affiliate attempts to stifle speech in Colorado

When Hillary Clinton-votarist David Brock “acquired” Citizens for Responsibility and Ethics in Washington (CREW) last August DC insiders immediately recognized the significance. Politico described it as “a major power play that aligns liberal muscle more fully behind the Democratic Party . . . The reconfigured CREW [will] expand its focus into state politics and donor targeting and will operate in close coordination with Brock’s growing fleet of aggressive Democrat-backing nonprofits and super PACs.”

Brock has since moved on to opposition research for Hillary Clinton’s presidential campaign but his partisan imprint on CREW’s Colorado affiliate, Colorado Ethics Watch (CEW), was hardly necessary. Since 2006, the “watchdog” has used the state’s imprimatur to amass a resume of complaints against Centennial State conservative groups—chilling speech rights in the process. But an upcoming ruling from a federal judge may finally expose CEW’s nefarious methods and motivations.

Last year CEW used a private-enforcement provision in Colorado’s campaign finance statutes to sue Rocky Mountain Gun Owners (RMGO) and Colorado Campaign For Life (CCFL). The alleged illegal activity centered on some mailers sent to Republican primary voters discussing their issues as the election approached. The groups did not engage in “express advocacy”—overt political activity—but merely wished to inform voters of candidate positions during the time they are most likely paying attention.

Courts since Buckley v. Valeo have repeatedly afforded public policy organizations greater relief from campaign finance strictures than straightforward political outfits like candidate committees, parties, and now Super PACs. RMGO and CCFL are 501(c)(4) nonprofits that engage in advocacy about contentious and highly emotional issues. Donor privacy enables these groups to advocate without fear of reprisal from either government or agitprop concerns like CEW. Nevertheless CEW demanded these groups reveal any donors that gave a mere $250 dollars for electioneering communications.

With paramount First Amendment rights at stake, the groups instead sued the state and CEW on constitutional grounds. The groups believe CEW engages in retaliation and viewpoint discrimination against speakers they disagree with, and the numbers back them up. By one count 41 of the 52 prosecutions CEW has undertaken have targeted conservative groups. Of the other 11, 10 were either unknown or against government. 

Like its parent organization, CEW realizes ‘the process is the punishment.’ Forcing policy-oriented nonprofits to defend legal actions at the height of the election season diverts time and resources away from advocacy, stifling their message. The plaintiffs’ lawyers, led by RNLA Board of Governor Member David Warrington, have sought to depose CEW principals to discern whether they bring suits for improper means. According to Warrington:

CEW has employed a pattern of pretextual targeting of conservatives and conservative groups. Plaintiffs anticipate that such discovery will demonstrate CEW’s animus towards their organizations, their bad faith motives in bringing the state court case, and their intent to retaliate for political speech based upon disfavored viewpoints.

Unsurprisingly CEW has reacted with the customary umbrage of ‘ethics’ watchdogs when placed on the defensive.

Regrettably the situation is not unique to Colorado. FEC Commissioner Lee E. Goodman created a stir last week when he asserted employing hard deadlines for resolving enforcement decisions would disproportionately harm conservative groups—currently 49 of 65 docketed FEC actions. Even more than Colorado, Washington is awash in ‘complaint mills,’ like the Brock-connected American Democracy Legal Fund, whose website consists of nothing but actions against Republicans. Campaign Legal Center and Democracy 21 are now even asking the Justice Department to police federal campaign finance statutes because of what they perceive as Republican Commissioner intransigence.  

Of course lost in the calls for “enforcement” of the laws and ever more regulations is the toll on First Amendment guarantees. When a technology executive is hounded out of his job for a six-year-old contribution, or a google cam is focused on one’s home, or as in Wisconsin, overzealous prosecutors turn peoples’ lives upside down on a  coordination “theory,” the system is off kilter. When as little as a $250 donation can potentially wreak havoc on someone’s life and livelihood the real goal is not information but silence. RMGO and CCFL are hopefully taking the first steps toward rebalancing.

By Paul Jossey  

FEC dysfunction a California dream

As the saying goes you can’t swing a dead cat around Washington, DC without hitting someone—a journalist, reformer, professor, or Chairwoman—complaining about the Federal Election Commission’s dysfunction. (One particularly uninformed reporter stated the Commission had come to a “complete halt.”).

The rhetoric about supposed paralysis has heated up of late with Chairwoman Ann Ravel stating the Commission she leads is, despite her best efforts, beyond repair. Henceforth she will take her fight to the people, or at least the sympathetic organs of the New York Times and Washington Post to demonstrate the Commission’s Republican intransigence.

Her umbrage stems mostly from some disagreements on highly controversial topics like political committee status. Republican refusals to investigate four conservative nonprofits including Crossroads GPS has convinced her “there isn’t going to be any real enforcement,” at the Commission. And “the problem” is three Republican commissioners voting as a bloc to ensure important matters are “swept under the rug.”

The disclosure doyenne doesn’t just reserve her invective for the Republican Commissioners, however. She also finds fault in a judiciary too deferential to agency judgments and candidates she insinuates are openly breaking the law with pre-announcement fundraising practices.

A closer look, however, reveals the issues are more complicated and the agency functioning more smoothly than the California Democrat would have readers of east coast establishment media believe.

As pointed out by Commissioner Lee E. Goodman, the Commission reached at least four votes 93% of the time last year, including 86% involving substantive matters. Those numbers may be slightly down from previous years but are remarkable in the current hyperpartisan environment. When the Commission does disagree it is on tough issues that have plagued the agency often since its inception.

As Bob Bauer explains, the problem with political committee status dates back at least to a supposed more cooperative era in the 2003-2004 when the agency couldn’t agree on a definition, forcing reliance on ad hoc judgments. And Jan Baran remembers this being a contentious issue when he worked at the Commission in 1977.

Goodman estimates these disagreements, which have caused Ravel’s apoplexy affect perhaps one percent of total political money. Regardless, she may be right that certain nonprofits should have registered with the Commission. The soundness of the Republican Commissioners’ decision is now in the courts that she places so little faith. But the whole point of judicial review is to ensure Commission decisions are on solid legal standing.

Of course, in other instances the Chairwoman has been less sanguine about following the law as written. In Checks and Balances for Economic Growth (MUR 6729), involving internet regulations, she refused to follow explicit law because “as a policy matter [the law] simply does not make sense.” As Commissioner Goodman contends, internet policy reaches far beyond a relatively small amount of undisclosed political spending.

Chairwoman Ravel has stated there is a crisis of public confidence about enforcement of election law. To the extent she is correct her statements have certainly contributed to it. Nor is this one commission unique in that debatable assertion. Polls show trust in government at all-time lows. One should probably expect such cynicism with a federal government that interferes with Americans’ lives to the tune of 175,000 pages of regulations.

Things may not be as easy for Chairwoman Ravel as they were in the Golden State, where one-party rule greases bureaucratic dominion of public affairs. But her leadership and legacy depend on her ability to overcome perceived strife, find common ground where possible, respect dissenting opinions as legitimate, and allow the court to decide where necessary. The New York Times and Washington Post will get her up and down I-95 but little place else.

By Paul Jossey