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!

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.

Personal Attacks Are All Liberals Have Against Trump Nominees

RNLA Vice President for Election Education David Warrington wrote today in the Daily Caller about the shameful and bizarre personal attacks against President Trump's nominees made by liberals and establishment Democrats:

Minnesota Supreme Court Justice David Stras has been nominated to the U.S. Court of Appeals for the Eighth Circuit.  He has over seven years of judicial opinions and six years of legal scholarship to scrutinize.  But instead of examining his record, liberal organizations have dismissed him as a “right-wing ideologue” who is simply a pawn of organizations like The Federalist Society. . . .

Notre Dame Law Professor Amy Barrett, nominated to the U.S. Court of Appeals for the Seventh Circuit, was likely surprised to discover during her confirmation hearing that her sincerely held Catholic beliefs might disqualifyher, as a conservative, from holding judicial office, at least according to Democrats on the Senate Judiciary Committee. 

Texas attorney Trey Trainor, nominated to the Federal Election Commission last week, also quickly came under fire for his sincerely held Catholic beliefs.  Like all the other nominees, Trainor’s true transgression is his conservative and libertarian views, particularly his vocal support for First Amendment rights and distrust of government bureaucrats’ efforts to regulate political speech.  The vast majority of the American people share these views—liberals also used to value the First Amendment—yet they have been painted as radical enough to disqualify Trainor from public service. . . .

These attacks are not based on an honest review of any nominee’s scholarship, policy views, work history, associations, or character but instead are based on the nominee having been nominated by Trump, having mainstream conservative or libertarian views, and being supported by conservatives and libertarians.  They seriously degrade our public discourse and prevent productive discussions and debates about a nominee’s policy views.

The piece closes by thanking those willing to serve our country despite the personal attacks that will be made against them simply for being nominated by President Trump and being conservative or libertarian.  These nominees are superb and we are immensely grateful.

Does the Real Election Interference Involve the Democrats?

In May, RNLA Executive Director Michael Thielen recounted the Obama administration’s long held propensities for election tampering, the latest effort being the DHS’s bid under former Secretary Jeh Johnson to infiltrate numerous state election voter databases during the 2016 election cycle.

Johnson testified last week before the Senate Intelligence Committee, however, that, even though he did not believe that “votes were altered or suppressed in some way,” his organization did not report on potential Russian hacking for the sake of non-partisanship.

David Warrington, RNLA Vice President for Election Education, highlights the Democratic Party’s herculean attempt during this hearing to scapegoat anyone else for its own illegal forays into elections:

Leaving aside for a minute that Russia ‘hacking’ the 2016 election is a wildly inaccurate portrayal of Russia's digital meddling — which to date are only allegations, nothing proven — there's likely another reason Johnson wasn't quick to cry foul: some of the known, legitimate attempts to hack into state election databases were perpetrated by Johnson's own organization, the Obama-led DHS.

DHS is not alone.  As we detailed Friday, even Democrats are raising questions of interference with the election regarding Obama Administration Attorney General Loretta Lynch. What does all this mean?  As Warrington concludes the continued fixation on Russia:

They are little more than an attempt to protect the previous administration from being exposed as election meddlers, albeit unsuccessful ones. But Hillary Clinton's leaked emails, which showed the Democratic National Committee colluding with her campaign to ensure she won the nomination over Bernie Sanders, have already proven that meddling in democratic processes is a strategy the left employs to win. 

Partisan politics in the end is driving this Russia hacking myth. And as Michael Thielen put it, “the reality is that there’s more evidence linking a US federal agency under Obama to state election hacking than there is linking Russia to the presidential election.”

FOIA Request Seeks Information on AltFEC and Trump Resistance at FEC

Today, America's Foundation for Life and Liberty (AFLL), of which RNLA Vice President for Election Education David Warrington is Chairman and Lead Counsel, filed a FOIA request with the FEC for records related to the altFEC Twitter account:

“Our FOIA request will seek all records related to FEC staff and commissioners running an anti-Trump Administration effort out of the offices of the FEC,” said America’s Foundation for Law and Liberty Executive Director Elizabeth Tate. 

“Over the past few weeks, it has become apparent government employees at the FEC are working on government time to undermine the Trump administration, primarily through a Twitter account <altFEC>. Based on the timing of tweets, it is quite obvious FEC employees are performing their resistance campaign on government time and perhaps using government resources,” Tate continued.  “The people behind this effort are free to express their opinions on their own time and on their own dime, but they should not be using Government time and resources to further a partisan political agenda.” 

“We find this effort by so-called campaign finance reformers at the FEC hypocritical, especially since their leaders, Commissioners Ellen Weintraub and former Commissioner Ann Ravel, have long sought prohibitions on anonymous online political speech under the guise of advocating for transparency. If these ‘reformers’ want Americans to forfeit their freedom of speech for transparency, then let’s find out what has been going on at the FEC. The American people have a right to know if their tax dollars are being spent to subsidize the political activities of these partisans.”

A copy of the full FOIA request is here.  We've covered the problem of partisanship at the FEC, by both Democratic commissioners and staff, frequently in the past few weeks: 

Partisanship and Hypocrisy on Free Speech by FEC Democrats Should Concern Citizens

Left Reveals View of FEC as Tool to Oppose Republicans 

FEC Commissioner Weintraub: Using FEC Resources to Engage in Partisan Activity 

FEC Commissioner Weintraub: Hypocrite on Speech Seeks Control Over All Aspects of Federal Elections

We hope that AFLL's FOIA request will yield some information on whether FEC staff is using government resources to engage in partisan activity.  Of course, agencies provide as little as they can in response to FOIA requests as possible, but at the very least, perhaps this FOIA request will deter such activity in the future.

Left Attacks Don McGahn to "Settle Old Political Scores"

One of the most popular targets of attack in the Trump administration for the media, Democrats, and other liberals is White House Counsel Don McGahn.  As RNLA Vice President for Election Education David Warrington wrote last week:

Liberal media’s long knives are out for individual White House staffers, because in the spirit of Saul Alinsky, liberal objectives justify cutting individuals personally and driving them from the arena. In the last two weeks it’s been White House counsel Don McGahn’s turn at the cutting table. . . .

He restored due process for American citizens who appear before a federal agency run amok — the FEC. . . . Fortunately, McGahn restored agency functions to conform to the agency’s statutory mandate. Contrary to the impression in the hit pieces, it was McGahn who respected and enforced the law and democratic accountability to make presidentially appointed and Senate-confirmed officials responsible for agency actions. 

Of course, for liberals who believe in investing governmental power in unelected liberal bureaucrats — and they are indeed reliable to pursue liberal objectives with the power of government in their hands — McGahn defeated the kind of unaccountable agency power they desire. . . .  

Thus all of the manufactured worrying over McGahn’s role as White House counsel is misplaced.  

After the immense respect for individual rights, the rule of law, and due process that he demonstrated at the FEC, Americans should be reassured that Mr. McGahn is advising President Trump on legal matters.  
Mr. McGahn and the White House Counsel's office have an important role advising President Trump, and there are many talented, experienced lawyers working with Mr. McGahn in the Counsel's office, including former RNLA Board of Governors member Stefan Passantino: President Donald J. Trump Announces Key Additions to the Office of the White House Counsel.

As the Trump administration continues to introduce and implement its policy initiatives, Mr. McGahn will increasingly be in the media crosshairs for giving sound legal advice to President Trump.  Thank you, Don McGahn, for serving the President and our nation.