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.