The RNLA is pleased to announce that FEC Commissioner Matthew S. Petersen will be speaking at the annual National Election Law Seminar in St. Louis, Missouri. The seminar will take place on August 3rd and August 4th of 2018.
From 2005 until his appointment to the Commission, Mr. Petersen served as Republican chief counsel to the U.S. Senate Committee on Rules and Administration. In this capacity, Mr. Petersen provided counsel on issues relating to federal campaign finance and election administration laws as well as the Standing Rules of the Senate.
Commissioner Petersen has played a crucial role since being appointed as a commissioner at the FEC, including handling some of the most important campaign finance issues and cases in history. He recently stated:
Over the past two decades, the internet has transformed our political process. Federal
candidates, parties, and independent actors increasingly rely upon online platforms to
communicate with voters and raise campaign funds, while American citizens use internet
resources to obtain election-related information and organize. The use of the internet as a tool
for political engagement has had a democratizing effect: Low-cost platforms enable speakers
with few resources to communicate to large audiences, while a seemingly infinite array of
publicly available resources aid the citizenry in casting informed votes. Overall, this
development has been a positive one.
The internet’s expanding influence on the electoral system has created regulatory
challenges, however, as the Commission has grappled with how to apply a law written to address
communications transmitted primarily through “our parents and grandparents’” television, radio,
and print media to speech conducted on computers, tablets, smart phones, and other emerging
technologies. For instance, the Commission has previously considered advisory opinions
regarding how federal disclaimer requirements apply to character-limited texts, small ads posted
on Facebook and Google, and small banner ads on mobile devices. Our current rulemaking on
internet communication disclaimers represents the most recent and ambitious effort in this
ongoing process.
As we move forward with this rulemaking, its twin goals should be (1) vindicating the
informational interest of the American people to know who is sponsoring political ads, and (2)
ensuring that online technologies continue to flourish as tools for political speech. To meet these
goals, any final rule must be flexible enough to accommodate the numerous devices and
platforms by which political speech is delivered, the ways voters consume information online,
and the rapid pace of technological innovation. Today’s hearing represents an important step
towards adapting the Commission’s disclaimer regulations to the realities of internet political
communications, and I am optimistic that the Commission will be able to successfully complete
this task.
Click on the link provided for more information on how to purchase tickets to hear Commissioner Petersen and the rest of the highly-qualified speakers at the RNLA’s National Election Seminar.
Today, the RNLA submitted a comment to the Federal Election Commission on its proposed rule making on Internet advertisement disclaimers:
An important, but often overlooked, part of open, fair, and honest elections is ensuring that the political
discourse surrounding elections is free and not subject to over-regulation by the government or the
political party currently in power. If voices in the political debate are suppressed through regulation,
then voters go to the polls without being truly informed.
The First Amendment to the Constitution protects against abridgement of the freedom of speech by the
government. Core political speech is subject to the highest protection under the Constitution, as the
Supreme Court described in Buckley v. Valeo: “Discussion of public issues and debate on the
qualifications of candidates are integral to the operation of the system of government established by our
Constitution. The First Amendment affords the broadest protection to such political expression in order
‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes
desired by the people.’” This broad protection includes “discussion of candidates” and the
“constitutional guarantee has its fullest and most urgent application precisely to the conduct of
campaigns for political office.”
As the public discourse has increasingly shifted to the Internet, political advertising has shifted as well,
prompting the Federal Election Commission (FEC) to consider how to adapt its regulations to new and
constantly changing forms of advertisement. Many of the regulations regarding disclaimers and
disclosure that were designed for radio, print, and television advertisements are simply impossible to
place in a small or short Internet advertisement or, if practicable, would obscure the entire message of
the advertisement. The RNLA applauds the FEC for taking a cautious approach and seeking public comment on this important issue to ensure that the FEC’s disclosure goals are met without unduly
restricting the rights of the speakers in political advertisements on the Internet.
A realistic approach to Internet advertisement disclaimers needs to recognize both the opportunities and
the limitations inherent in Internet advertisement technology and the constantly changing nature of the
medium. The regulations must be clear and flexible enough to adapt to future technological
developments and changes.
The RNLA joined other conservative organizations in urging the FEC to take a reasonable, flexible, and clear approach to Internet political advertisements that would not suppress political speakers' right to disseminate their messages online and would adapt with constantly changing technology.
The Institute for Free Speech analyzed the proposal in detail, noting how the FEC's disclaimer regulations are not suited to modern means of advertisement and thereby burden speakers (footnotes omitted):
Requiring disclaimers that will, in many cases, consume a substantial portion of a particular advertisement will impose significant burdens on these speakers. This is especially true for poorly-resourced individuals and groups relying on small or brief online advertisements precisely because they are cost effective.
These burdens are not hypothetical. Advertisements are getting shorter, but the disclaimer requirements stay the same. Fifteen-second advertisements are an industry standard, and six-second advertisements loom on the horizon. The short run-times forces the speaker to spend more time disclaiming and less time getting their message out. One congressional candidate’s fifteen-second advertisement was cut in half by the required disclaimers. Even those who have more experience running political communications cannot get the disclaimers down to a manageable level. AFT Solidarity produced a fifteen-second video advertisement, where the spoken and visual disclaimers required a third of the advertisement’s run time. Political speakers are already using new platforms, such as Snapchat, that carry strict limitations. For example, New Day for America ran an advertisement on Snapchat featuring Governor John Kasich, and another Snapchat advertisement supported Senator Rand Paul’s view on tax cuts. These are but the start of the new trend in shorter advertisement times on new platforms.
The fact that the FEC has taken several opportunities to seek public comment and carefully consider any proposals on Internet advertisement disclaimers is a testimony to constant vigilance by current FEC commissioners Caroline Hunter and Matthew Petersen, and many former Republican FEC commissioners, to fight against the Democrats' headlong rush to regulate Internet speech.
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.
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.
RNLA President Elliot Berke sent a letter today to the Senate Judiciary Committee in support of current FEC Commissioner Matthew Petersen, who has been nominated to the U.S. District Court for the District of Columbia:
I have known Commissioner Petersen both personally and
professionally for many years and practiced before him at the Federal Election
Commission, and there are few attorneys who possess the ability to read,
understand, and analyze statutes and regulations as well as Commissioner
Petersen. He is a consummate
professional who has carefully considered the facts and the law for each matter
before him at the FEC, without regard to policy considerations that were
outside his purview. His knowledge of
and experience with administrative law are exceptional, and as you are aware,
administrative law forms a substantial portion of the District Court for the
District of Columbia’s docket.
Commissioner Petersen has recently been subject to politically
motivated attacks about his trial knowledge and experience. Those who oppose his steadfast defense of
American citizens’ First Amendment rights of political speech at the FEC do not
wish him to join the federal bench.
The reality is that the Federal Rules of Civil Procedure and
other doctrines governing trial procedure are of course important aspects of
the position, but the ability to parse complicated regulations and correctly
apply them to factual situations must be honed over years of practice. Commissioner Petersen has done precisely that
in his distinguished career of public service and private practice. The American Bar Association Standing
Committee on the Federal Judiciary unanimously rated him as qualified.
The RNLA urges the Senate Judiciary Committee to swiftly and favorably report his nomination to the entire Senate and the Senate to confirm him. Those who oppose Commissioner Petersen because of his support for the First Amendment and the rule of law at the FEC should not be allowed to prevail.
