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!
RNLA member Eric Wang published a thorough analysis of the state of the law on donor disclosure requirements and what the law should be under First Amendment free speech principles. "Staring at the Sun: An Inquiry into Compulsory Campaign Finance Donor Disclosure Laws" was published today as a Policy Analysis paper from the Cato Institute. Mr. Wang begins by pointing out the tension at the heart of any discussion of disclosure (footnotes omitted):
“Disclosure” is a term with warm and fuzzy
connotations. When someone intersperses a
“full disclosure” disclaimer in a conversation,
we tend to credit the speaker for his or her
candor. But privacy also is commonly regarded
as a virtue in its own right. The right to privacy
is held to be “fundamental” against intrusions
by the government . . . . These competing interests of privacy and
anonymity versus disclosure in the context of
political speech are reflected in the Court’s
tortured and tortuous jurisprudence.
After examining the Supreme Court's unrealistic and limited justifications for donor disclosure requirements, Mr. Wang says that other justifications are not better:
If one goes in search of better justifications
for compulsory donor disclosure beyond the
Supreme Court’s holdings, the landscape is
still rather bleak. The arguments put forward
for disclosure often are illogical on their face,
contrary to actual experience, inconsistent
with other First Amendment precepts, or
downright invidious.
People United for Privacy just released this video about the chilling effects of donor disclosure requirements, including a disturbing moment when Senate Minority Leader Chuck Schumer admitted that the purpose of disclosure requirements was to deter citizens' speech about their government. Mr. Wang describes this and the constitutional problems with that position:
Every so often, compulsory disclosure supporters reveal their true intention of deterring
speech. . . . This sometimes not-so-subtle effort to
use compulsory donor disclosure laws to limit speech runs head-on, however, into what
the Court has long held to be our “profound
national commitment to the principle that
debate on public issues should be uninhibited,
robust, and wide-open, and that it may well
include vehement, caustic, and sometimes
unpleasantly sharp attacks on government
and public officials.” Not only that, but the
deterrence of speech diminishes the public’s
“right to hear, to learn, to know”—a right
that also has been held to be fundamental.
Mr. Wang concludes by offering recommendations for disclosure laws that serve the legitimate purpose of disclosure while protecting citizens' constitutional rights, while pointing out how current laws often fall short of these principles:
Disclosure’s purpose should be to “allow[]
citizens to keep tabs on their elected officials”—
not for “the government to monitor its
constituents.” The legitimacy of disclosure
laws is at its zenith when they focus on
government transparency. Open government
is essential to representative government and
holding officials accountable and responsive
to the public. When disclosure laws’ purpose
is to monitor private individuals and groups
exercising their First Amendment rights,
however, such laws become an authoritarian
tool for intimidation, retribution, and the
suppression of democratic debate.
Liberals and Democrats, in their ongoing quest to force more disclosure to deter citizens from speaking out about their government, would do well to pay attention to Mr. Wang's reasoned analysis of the dangers and proper role of donor disclosure. Free speech often demands the right to speak anonymously, especially in our politically charged era where threats of violence against conservative speakers are becoming commonplace.
RNLA member Eric Wang wrote today about how the "Honest Ads Act" currently pending in Congress would burden Americans' free speech rights while doing very little to prevent foreign political ads:
According to the bill’s own legislative findings and its sponsors’ remarks, more than $1.4 billion was spent on online political advertising last year. Of that amount, some $100,000 (less than 0.01 percent) has been reported thus far as coming from Russian interests. But S.1989 fails at even a perfunctory attempt to target foreign interference. Instead, the bill would almost entirely regulate Americans.
Mr. Wang explained the statutory changes that the bill would make:
S.1989 begins by undoing the Federal Election Commission’s “internet exemption,” under which online political speech generally is not regulated unless it is a “communication placed for a fee on another person’s website.” . . . The change may appear subtle, but it makes a world of difference as groups making even minimal expenditures could be regulated for content on their own websites, blogs and mass emails. . . . Videos that groups post on YouTube and anything they publish on Facebook and Twitter also possibly could be regulated under S.1989.
S.1989 next expands regulation of so-called “electioneering communications” to include online ads that refer to elected officials and candidates within certain pre-election periods. Again, this legislative rhetoric obfuscates reality. In fact, many “electioneering communications” are non-electoral issue advocacy. . . . At least under current law, only TV and radio ads targeted to those eligible to vote for the referenced candidates are “electioneering communications.” Despite the bill’s legislative findings about the ability to microtarget internet ads, S.1989 would indiscriminately regulate online ads even when they are not targeted at eligible voters. Thus, ads inviting New Yorkers to contact House Ways and Means Committee Chairman Kevin Brady (R-Texas) about the pending tax bill could be regulated, as could ads asking Texans to urge Senate Minority Leader Charles Schumer(D-N.Y.) to stop blocking judicial nominees.
S.1989 also would effectively impose a new reporting requirement — on top of the existing FEC reporting burdens — for political and issue advertising costing as little as $500. A publicly accessible database would have to contain a copy of all regulated ads and details about how each ad was targeted, when it ran, the average rate charged, the candidate or “national legislative issue of public importance” discussed, and information about the sponsor and its officers or board members. . . . The compliance costs, when combined with the liability that S.1989 would impose on online platforms for recordkeeping errors, may drive online advertising costs out of the reach of many small grassroots organizations. . . .
Mr. Wang concludes by proposing some alternate, and much more effective, means of addressing the problem of foreign purchases of ads. Notably, Congress could amend the Foreign Agents Registration Act (FARA), which is a law actually tailored to address foreign influence without impacting the important rights of Americans. That is precisely the problem with the proposals to date: they regulate Americans' free speech rights without actually preventing objectionable foreign speech.
RNLA member Eric Wang wrote in USA Today how the rush to regulate foreign speech on American political and policy issues will inevitably stifle American speech, pointing first to the example of China:
Recent revelations that Russian interests used social media to interfere with the 2016 American election campaign have sent lawmakers scurrying to respond. China’s “Great Firewall” offers one possible model for securing our democracy. . . . China censors any agitators, foreign or domestic, on social media. Politically sensitive topics like Tibetan self-determination, the Tiananmen Square demonstrations, or resistance against the Communist Party are off-limits. Of course, the Great Firewall also completely blocks access to Facebook, Twitter, and thousands of other websites. . . . Emulating China’s disregard for free speech may seem like mere satire for Americans. . . . But recent calls to regulate online political speech by foreign interests directed at Americans seem to articulate no bounds. There is a real risk that a rush to regulate will threaten basic civil liberties. . . .
As Mr. Wang points out, the frightening example of China shows that control of the internet almost inevitably leads to censorship. Even if American citizens' right to speak is not curtailed, their right to listen would be:
Any regulation of speech about political issues by foreigners could end up entangling U.S. citizens. . . . Even if we could use technology, such as blocking overseas Internet Protocol (IP) addresses, to prevent only foreign nationals from influencing us, this would still limit Americans’ First Amendment rights. As the Supreme Court has held, the right to speak also involves the right to listen.
Mr. Wang includes some interesting examples of the various ways foreign actors seek to influence opinion in the U.S. and concludes by pointing out that foreign attempts at influence are inevitable and certainly not new:
Except in the most closed societies, speech has always seeped across national borders. In an irony befitting today’s topsy-turvy politics, Democrats now decry Russia’s attempts to aid Trump last year. But last year, Republicans condemned foreign leaders who urged Americans to reject Trump. Look at history as well. The book “Democracy in America” is one of the most influential tracts on our political system, and remains required reading in American university political science courses today. It was written, of course, by Alexis de Tocqueville, a Frenchman. By regulating Americans’ access to foreign speech about our politics, we risk becoming a “hermit kingdom.”
All this is not to diminish the threat of foreign interference in our democracy. But First Amendment rights, once curtailed, are not easily restored. Therefore, we must carefully consider how we handle this issue. Rushing to restrict Americans’ political freedoms in the name of curbing foreigners’ political speech would play right into Russia’s hands.
As we have been discussing frequently in the past few weeks, while we may resent foreign attempts to influence our political process, regulating and restricting more than is already done in the law risks stifling speech by American citizens on important political and policy issues and isolating the U.S. internationally in a way that is unthinkable in a modern free society.
RNLA members Brad Smith and Eric Wang coauthored an op-ed in The Hill debunking proposed legislation in Senate, which would have vast consequences if enacted. The piece looks at the "DISCLOSE Act of 2017" introduced by Senator Whitehouse (D-RI) which would restrict and heavily regulate political speech in America ahead of elections.
This is not the first introduction of a bill like this. Rather, it is just the latest version to drop into the "legislative hopper" in the wake of the 2016 Election and alleged Russian attempted interference with the presidential election. This 2017 version is just an opportunistic way to limit political speech at home.
Mr. Smith and Mr. Wang write:
Foreign interference with our elections is already illegal. Under existing law, foreign nationals and foreign corporations are strictly prohibited from making political contributions and independent expenditures in connection with elections for federal, state, and local office. . . Under existing law, foreign nationals and foreign corporations are strictly prohibited from making political contributions and independent expenditures in connection with elections for federal, state, and local office. However, the Federal Election Commission (FEC) has properly recognized that millions of Americans have not surrendered their right to political speech simply because they work at foreign-owned corporations. Thus, domestic subsidiaries of foreign companies like Anheuser-Busch, Bayer Health and Honda Motor, which are integral parts of the national and local economies, are permitted to engage in certain political activities, so long as those activities are directed by American citizens.
The Disclose Act of 2017 introduced by Whitehouse would upend the existing law by categorically prohibiting any political activity by a corporation or subsidiary if more than 20 percent of its voting shares are foreign-owned. This percentage ownership limit is a smokescreen, however, as the bill also would much more severely prohibit any corporate political activity if a foreign national “has the power to direct, dictate, or control the [corporation’s] decisionmaking process.” Because the owner of even one share of a publicly traded corporation generally has such power through a shareholders meeting or a proxy vote, this provision likely would strip away the political speech rights of any public company with even one foreign shareholder.
In a vacuum, perhaps we could be accused of over-reading this extreme result into the bill. But FEC Commissioner Ellen Weintraub outlined this very same legal approach in a New York Times opinion last year as a way to counteract the Supreme Court’s 2010 Citizens United decision, which permitted certain corporate political activity. Thirty-seven of the 38 Senate sponsors and co-sponsors of the latest Disclose Act who were in the chamber in 2014 also voted to amend the Constitution to override Citizens United. While that effort failed, it now appears those Senators are trying to use a mere bill to accomplish the same result, a maneuver that is clearly unconstitutional.
Aside from its foreign national provisions, the latest Disclose Act also contains numerous purported disclosure requirements (hence its name). But those disclosure provisions are also ploys to shut down political speech. For example, the bill would require any corporation (even one that has no foreign owners at all) making a “campaign-related disbursement” to disclose all of its “beneficial owners,” a term which likely includes any shareholder. For a company with tens of thousands of shareholders, including many who own shares through mutual funds and are unknown to the corporation, complying with this requirement would be practically impossible, and thus political speech would be essentially prohibited. . . .
This is yet another example of the left trying to politically capitalize on the alleged Russian attempted interference with our past election. Rather than directly addressing what allegedly occurred last year, the left would rather limit political speech overall, even from domestic sources and especially from those who may disagree with them. Private entities such as Facebook are also changing their practices, which raises concerns about private regulation of political speech by unaccountable--but nonetheless powerful--brokers of communication in our modern era.
RNLA member Eric Wang lamented how California's new attorney general is continuing the political crusade against non-profit organizations that was a hallmark of the previous attorney general's tenure:
California Attorney General Xavier Becerra hit a low note recently during a press conference marking his first 100 days in office. Out of the blue, Becerra lashed out at nonprofit groups for “doing politics.” He threatened to investigate “these groups that are getting tax breaks [while] influencing our political system,” and claimed their donors were illegally taking charitable tax deductions. In his tirade, Becerra misstated the law. As California’s top law enforcement official, he should know better. Then again, his remarks continue his predecessor’s war against nonprofits’ First Amendment rights. . . .
Under the tax law, only donations to certain nonprofits are tax-deductible. . . . Even the biggest proponents of more regulation of nonprofits have not alleged any widespread violations by 501(c)(3) charities involving themselves in politics. Thus, Becerra’s suggestion that donors are taking charitable deductions for donating to groups that engage in politics is false. . . . And contrary to Becerra’s claim that [nonprofit advocacy groups that fall under section 501(c)(4) of the tax code] are violating the law, the Internal Revenue Service’s regulations have permitted 501(c)(4) entities to engage in a substantial amount of political activity for the past 50-plus years. To this day, both the internal and public guidance from the IRS also expressly permit these groups to participate in election campaign activities.
Unfortunately, Becerra’s ignorant or disingenuous attack on nonprofit groups’ political speech rights follows the shameful legacy of his predecessor (and now U.S. senator) Kamala Harris. As state attorney general, Harris sought without any legal basis to force nonprofit groups in California to turn over their private donor lists to her office. If they refused, she would not permit them to exercise their constitutional right to solicit funds in the state. That audacious assertion and abuse of official power threatened donors’ First Amendment right to associational speech and privacy, as the U.S. Supreme Court recognized decades ago.
Going forward, members of the nonprofit community must stand up and resist this intimidation campaign in California and elsewhere. Public officials must be called out for misstating the law about nonprofits’ First Amendment rights. Lawsuits must be brought against government officials who misuse the law to impede citizens’ right to freely associate. And political pressure must be applied to protect the vital role that nonprofits play in our political discourse. Remaining silent in response to attacks like Becerra’s will only invite further and more serious incursions.
Becerra's remarks are representative of the subtle ways that Democrats and liberals mischaracterize tax laws, Supreme Court decisions like Citizens United, and campaign finance laws and regulations to demonize "dark money" and non-profit organizations engaged in perfectly lawful speech activities. The anti-speech rhetoric is part of the Democrats' current movement to silence opposing views, and they have shown how willing they are to use campaign finance and tax laws--often unlawfully--as weapons against organizations that speak against their favored policy proposals.
