All Citizens Are Entitled to an Impartial FEC

(This is the fourth in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The first installment is here, the second here, the third here, and the last installment will be posted in the next few days.)

Former FEC Chairman Brad Smith was the first to warn the American public, detailing the legal problems presented by Commissioner Weintraub's actions in a June 2017 blog post at the Institute for Free Speech.  According to Chairman Smith, "Federal Election Commissioner Ellen Weintraub's actions in recent months cast serious doubt on whether she can continue to credibly carry on her duties as a Commissioner.  She should recognize this predicament and do the honorable thing, which is to resign."  Chairman Smith outlined federal law that requires government officials to act without bias and documented Weintraub's violations of that legal duty.  
  
Chairman Smith also explained the corrosive effects of the anonymous AltFEC Twitter feed in 2017, before it was widely known that the AltFEC twitter feed is sponsored by Weintraub's staff.  

Liberal defenders like Professor Rick Hasen rallied to Weintraub's defense.  Hasen called Chairman Smith "mean spirited" for his analysis of Weintraub's bias.  No doubt Professor Hasen has exhibited some mean spiritedness on his own blog.  More important than his one-sided view of campaign finance discourse, however, apparently liberals like Hasen thinks it's okay for Democratic law enforcement officials like Loretta Lynch and Ellen Weintraub to enforce the law with prejudice.  They are not in the least bit concerned for "good government" when it comes to law enforcement bias, which is its own form of corruption.  

But Chairman Smith was right and it shouldn't take a national controversy like Lois Lerner or Peter Strozk to restore the appearance of fairness and impartiality.  Weintraub's demonstrations of bias are worse than the Peter Strozk controversy.  Her public political jabs at the President go well beyond private texts and emails.  And her votes to punish Trump demonstrate that she will use her public office to get the President.  Yet, there has been little outcry about it.   

The FEC is a law enforcement agency.  Commissioner Weintraub is a law enforcement official.  Nobody looking at this evidence could reasonably conclude that Commissioner Weintraub is unbiased, fair and neutral in her approach to President Trump.  Nor is she known throughout Washington, DC as a dispassionate, objective regulator.  Rather, she has a reputation as a flamboyant, outspoken ideologue, given to partisan infighting and polarization on the Commission.  The strong opinions she and her confidential counsel have expressed about President Trump (and other Republicans) taint everything the FEC does.  

President Trump is entitled to not only actual neutrality but the absolute appearance of neutrality in the enforcement of campaign finance laws by the FEC.  That neutrality does not exist so long as Commissioner Weintraub and her office participate on Trump cases.  Like the FBI fired Peter Strozk, Commissioner Weintraub should do the right thing and remove herself from all cases related to Donald Trump.      

Weintraub's Enforcement Votes Exhibit Bias Against Trump and Republicans

(This is the third in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The first installment is here, the second installment is here, and the last installments will be posted in the next few days.)

Commissioner Weintraub's Enforcement Votes Exhibit Bias Against President Trump

Commissioner Weintraub's votes in recent enforcement matters also have raised eyebrows because she has rejected FEC General Counsel recommendations to dismiss matters and treated President Trump differently than she treated President Obama.

In a case, Matter Under Review 7244, where a complaint alleged that President Trump's Inaugural Committee incorrectly reported the addresses of a handful of donors out of many thousands of donors, errors had been corrected in amended reports.  In 2009 and 2013, the Obama Inaugural Committee filed amended reports to clear up errors, and the Commission took no enforcement action.  The Obama campaign also had taken in upwards of millions of dollars from foreign addresses, but claimed that it refunded those contributions.  In Obama cases, Weintraub voted to dismiss complaints and not even investigate.  Accordingly, the FEC General Counsel recommended dismissal of the Trump Inaugural Committee.  But Weintraub voted against dismissal.  She rejected her own General Counsel's recommendation, apparently because President Trump will face more severe enforcement than President Obama received. 

In another case, Matter Under Review 7100, a complaint alleged that Donald Trump made personal use of his campaign's funds by promoting Trump Organization products and properties by using them for campaign events.  The law allows candidates to use corporate resources so long as they pay a fair market price for use of the resources.  Accordingly, Trump paid for all uses of corporate resources. And most of the money in Trump's campaign fund was contributed by Donald Trump himself -- so improper personal use was hardly a risk.  Accordingly, the FEC General Counsel recommended dismissal of the complaint.  Weintraub voted against the FEC General Counsel's recommendation to dismiss.  Weintraub then issued a gratuitous statement chastising President Trump:  "Trump hotels, Trump steaks, Trump water, Trump golf courses, Trump wine," she complained, calling the campaign's use of Trump properties one big "infomercial" for Trump's corporate properties and products, which amounted to personal use of campaign funds.  Never mind that Trump funded his own campaign and never mind that the FEC General Counsel recommended dismissal.  The FEC needed to investigate and punish.

And in yet another case, Matter Under Review 6961, a complaint alleged that the Trump campaign failed to pay an event-service company for services in setting up Trump's presidential candidacy announcement event, but it turned out that the Trump campaign indeed had paid a contractor event-service company who in turn paid the subcontractor event-service company in question, and the payment showed up on a subsequent public report filed with the FEC.  The FEC General Counsel recommended dismissal of the complaint.  Here, even though she voted to dismiss the complaint, Weintraub voted to send a "caution letter" to the Trump campaign, apparently to stigmatize Trump in a case that even Weintraub conceded had little merit. 

These are three different cases with a common denominator: Commissioner Weintraub went against the FEC General Counsel's recommendation of dismissal because the complaints were all against Trump.  As we are detailing in this series, this is part of a pattern of a troubling appearance of bias by Commissioner Weintraub against Republicans in general and President Trump in particular.

Weintraub's Personal Staff Exhibits Bias Against Trump and Republicans

(This is the second in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The first installment is here, the third is here, and the next installments will be posted in the next few days.)

Commissioner Weintraub's Personal Staff Routinely Trolls President Trump and Criticizes All Things Republican

Since President Trump took office, Weintraub's personal staff has been tweeting almost daily invective about President Trump and Republicans on the Twitter account altFEC, self-described as "The unofficial Resistance team of the U.S. Federal Election Commission." "Resistance" means resistance to the Trump Administration.  Consider a few examples of the kind of deep enmity and prejudice expressed toward President Trump:

• Gleefully: "Mr. Art Of The Deal got his ass kicked by the D.C. City Government"

• Directed at a Donald Trump tweet on legal issues likely to be addressed by the FEC:  "Once this is over, however it ends, we’re going to wonder, 'Why did we put up with this nuttiness for so long?'"

• Retweeting James Comey's criticism of President Trump on issues likely to come before the FEC:  "Thought experiment: Make a list of all the public figures in this country and around the world the current president has criticized. Ask yourself: 'Why is Putin missing from the list?' No responsible American should ever stop asking, 'Why?'" 

• Mocking Trump:  "Where are Hillary Clinton's emails? Mr. Trump said.  Oh, here's one.  [faux email from Hillary Clinton to Donald Trump]  Resign, you treasonous clown." 

• Criticizing Trump:  "Oddly, as his behavior gets more erratic & overtly pro-Russian, it may actually be a sign that Trump is *not* a Russian agent. Because at a certain point – one already passed – you would think his handlers would say, 'Yo, dude, tone it down a little. You’re being too oobvious [sic].'” 

• Prejudging alleged payments by Trump to Cohen as undisclosed campaign expenditures, a matter likely to come before the FEC:  "So, the payments Trump made to Cohen to cover the #Stormy payoff included money for “a few other situations that might have been considered campaign expenses,” Giuliani tells @costareports. Why weren’t *these* expenses disclosed? https://t.co/lKJFLA1fbA" 

• Promising Trump detractors to conduct private investigations of their secret complaints.

• Exhorting cable carriers to drop Fox News -- a news channel Commissioner Weintraub concluded broke the law by hosting a Republican debate in 2016:  "Here's a question. The more people watch #FoxNews, the less well-informed they are about basic facts. Arguably, FOX is tearing at the fabric of our democracy. They have a 1st Amendment right to exist, but not to be carried by cable companies. So: Why do cable companies carry it? https://t.co/0Ttqvrl5EQ"   

The person responsible for this anti-Republican venom is none other than Weintraub's confidential counsel, Tom Moore, who was publicly identified as AltFEC by Rudy Takala of The Hill on his Twitter feed on February 26, 2017.  People close to the Commission confirm that Weintraub is aware of Moore's anti-Trump crusade and approves of his activities.  According to one source, Weintraub has been known to defend Moore's right to express his anti-Trump hostilities (anonymously!) toward the very people who are the subject of FEC enforcement authority by invoking the First Amendment -- a constitutional provision she rarely acknowledges when supporting enforcement against other citizens.

How can Commissioner Weintraub's office be viewed as fair, neutral, impartial when such nasty ad hominem attacks at President Trump are being published by her personal staff?  It simply cannot. 

Like Strozk, FEC Commissioner Weintraub Should Be Recused from Trump Cases

(This is the first in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The second is here, the third is here, and the last installments will be posted in the next few days.)

From the Department of Justice to FBI leadership to the halls of Congress to American public opinion, nobody can credibly defend the conduct of FBI investigator Peter Strozk.  His blatant and deeply personal bias against Donald Trump, the subject of his investigation, and his politicization of FBI investigations cannot be condoned.  Strozk and his girlfriend Lisa Page were properly removed from the Mueller investigation team.  Even after their removal, however, their involvement in the Clinton email investigation and the Russian meddling investigation has left both investigations tainted.

Which brings us to other law enforcement agencies and officials whose prejudice and enmity for President Trump is as deep and even more vocal than Peter Strozk's.  Strozk was a small player, one of several line investigators, and his personal emails and opinions about Trump -- as explicit and biased as they were -- pale by comparison to mounting evidence of anti-Trump prejudice in the office of Democratic Federal Election Commission Vice Chair Ellen Weintraub -- a Commission decision maker and powerful leader of the agency who is scheduled to become agency Chair in four months. 

Commissioner Weintraub has joined the political opposition to President Trump.  Weintraub started lobbing gratuitous political volleys at President Trump soon after he was took office.  She publicly jousted with President Trump over claims of voter fraud, an issue outside the jurisdiction of the FEC.  That drew a complaint to the FEC Inspector General.  Weintraub quickly -- and lamely -- attempted to link her foray into the President's voter fraud politics to her official duties as a Commissioner, while at the same time rallying her own political support on Twitter and elsewhere, declaring that she would not be "silenced." 

But Weintraub's post hoc effort at legitimization was transparent. A single Commissioner has no authority to launch an investigation by letter to the President (or any other witness).  Her missives to the President could not possibly constitute the conduct of official FEC business because it was unauthorized and out of order.  This was confirmed when Project Veritas confronted Weintraub with actual evidence of voter fraud in New Hampshire and asked her pointedly what she intended to do about it, but Weintraub suddenly claimed she could not comment publicly on the issue.  She has done nothing since that time to prioritize the issue.  Letters loudly jousting with the President took priority, but serious, official action can wait and must remain hush-hush.      

Weintraub also published a mean-spirited diatribe against the President's legal counselin a Washington Post op-ed at the beginning of the administration.  That's far afield from the business of the FEC, and its terms were so personal and nasty that Weintraub's hatred for the Trump campaign and its lawyer were on full display. 

All this political jousting indicates one thing: that Commissioner Weintraub started off with a clear bias against Donald Trump, his lawyer, and his administration.  

FEC Commissioner Matt Petersen to Speak at 2018 RNLA National Election Law Seminar

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.

We are especially pleased to have Commissioner Petersen speaking given his long track record of success in advancing honest elections, maintaining voting integrity, and protecting the First Amendment rights of political speakers. Not only was Mr. Petersen confirmed unanimously with bipartisan support from the United States Senate, he played an integral role in passing key voting legislation including the 2002 Help America Vote Act. He then was one of the most important attorneys in the nation in dealing with issues of campaign finance. 

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.

Judge Brett Kavanaugh Respects First Amendment Rights; Skeptical of Campaign Finance Regulatory Overreach

One of the many advantages of Judge Brett Kavanaugh's long service on the D.C. Circuit is that we have a very clear picture of how he applies the First Amendment to statutes that restrict speech.

The D.C. Circuit hears many campaign finance cases, and the Institute for Free Speech reviewed them, starting with Emily's List v. FEC:

His opinion in Emily’s List is particularly impressive. Foreshadowing later rulings in Citizens United and SpeechNow, Judge Kavanaugh clearly articulated a First Amendment right for associations to spend money in support of candidates. The opinion demonstrates an ability to anticipate trends in First Amendment jurisprudence before they fully take hold. . . . 

Emily’s List v. Federal Election Commission dealt with a spate of regulations that the FEC put in place against certain nonprofit corporations in the aftermath of the 2004 presidential election. Specifically, in response to the so-called “527” expenditures made during the 2004 election against President Bush and Senator Kerry, the FEC imposed a panoply of limits designed to treat nonprofit corporations, functionally, as if they were political parties. 

In an opinion that preceded and foreshadowed the Citizens United and SpeechNow.org opinions, Judge Kavanaugh wrote an opinion for the Court reversing the lower court and striking down these regulations on First Amendment grounds. The Court decided that nonprofits such as Emily’s List, a pro-choice, partisan nonprofit dedicated to electing pro-choice Democratic female candidates for office, ought to have “the right to spend unlimited money to support their preferred candidates” and “receive full First Amendment protection.” 581 F.3d at 8-9. “A non-profit that makes expenditures to support federal candidates,” Judge Kavanaugh wrote, “does not suddenly forfeit its First Amendment rights when it decides also to make direct contributions to candidates.” Instead, so long as it complied with modest regulation, it was “entitled” to make certain “advertisements, get-out-the-vote efforts, and voter registration drives” out of an “account…not subject to source and amount limits.” Id. at 12.

Judge Kavanaugh also wrote for the court in Independence Institute v. FEC in 2016.  The Institute for Free Speech also notes that when he has written upholding campaign finance regulations, he has done so with respect for the First Amendment and how government regulation can endanger the free speech rights of Americans, as he did in Bluman v. FEC, concerning the ban on foreign intervention in U.S. elections:

Nevertheless, Judge Kavanaugh warned that government could easily overstep in this area. He noted that the ruling did not decide whether Congress could constitutionally extend the ban to lawful permanent residents, nor did it decide whether Congress could prohibit foreign nationals from engaging in political speech other than contributions. He also cautioned the government “that seeking criminal penalties for violations… will require proof of the defendant’s knowledge of the law.”

Judge Kavanaugh's extensive judicial record provides a valuable look into his interpretive methods and how he analyzes complicated legal controversies of the type faced daily at the Supreme Court.  As the Senate considers his nomination over the next few months, we will provide insights into his judicial record on this blog, Facebook, and Twitter, in addition to analyzing the political situation.  While Democrats will attack him unfairly however they can, they will find it very difficult to substantively criticize Judge Kavanaugh's strong record on the D.C. Circuit.

Draining the Swamp: Federal Judge Exposes Anti-Republican Bias at the FEC

As the agency that regulates and enforces campaign finance law, the Federal Election Commission (FEC) is a remarkably powerful entity. For this reason, instances of bias against one political party by the FEC should not be taken lightly. Thankfully, one recently appointed federal judge is doing his part in exposing this corruption. The Washington Examiner reports:

A federal judge has blown the whistle on a secret Federal Election Commission scheme to punish some Republican groups and their donors, the latest sign of an anti-GOP bias at the elections watchdog.

In a newly released decision, Trump-appointed District Court Judge Trevor N. McFadden shined a spotlight on the FEC’s general counsel who recommended action against four Republican groups but dismissal of similar charges against supporters of a Democratic group, “Black Men Vote.”

This bombshell report is not even the first piece evidence of anti-GOP bias at the FEC. The article goes on to say:

The decision follows an amazing admission by a former Democratic FEC chairwoman and frequent critic of Republicans and President Trump that the agency is biased against the GOP.

Asked if the cases before the FEC are biased, Ann Ravel said, “Absolutely. The cases have come primarily from watchdog groups, and most of those groups are on the liberal side.”

She was one of the Democratic commissioners who led the effort to target conservative media, like the Drudge Report.

Thankfully, there are checks and balances to the FEC. In order to find a violation, the agency must have bipartisan support with a minimum of four of six commissioner votes. While left-wing groups like Citizens for Responsibility and Ethics in Washington (CREW) have tried to get around this government check by suing the FEC for any decision they don’t like, the D.C. Circuit Court recently struck down this political tactic.

Agency enforcement decisions, to the extent they are committed to agency discretion, are not subject to judicial review for abuse of discretion. It follows that CREW is not entitled to have the court evaluate for abuse of discretion the individual considerations the controlling Commissioners gave in support of their vote not to initiate enforcement proceedings.

The Court made the right decision in blocking politically-calculated lawsuits in an attempt to circumvent the FEC process. The Executive branch and the Senate have the duty of appointing and confirming qualified individuals to the FEC, and their decisions should not face constant litigation from politically charged organizations.

Judge McFadden is commended for having the courage to stand up and expose these abuses of the system, which otherwise corrupts the process as set up by Congress with the clear goal of undermining the FEC. 

RNLA Files Comment with FEC on Internet Ad Disclaimers

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. 

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.

Trump Resistance at FEC Misstates First Amendment Law

The @alt_fec Twitter account is run by self-proclaimed FEC employees who are experts in campaign finance law.  But they managed to mis-state First Amendment law three times in one Tweet attacking the Institute for Free Speech and requesting IFS' "views on the First Amendment implications of a letter from a private attorney to a private publisher concerning Fire and Fury: Inside the Trump White House."  IFS accepted the invitation to analyze the letter under relevant First Amendment law (footnotes omitted):

The author behind @alt_fec suggests that this is our “chance to denounce the President’s attempted prior restraint of a book – just about the worst [First Amendment] violation there is.” . . . 

First, the letter protesting Fire and Fury is from Donald Trump’s private attorney. Donald Trump, the man, is different from Donald Trump the President. The letter isn’t an attempt by the President to prevent publication using the powers of his office. It’s a warning from a private party that he will sue for libel if the book is published. 

Second, this isn’t a prior restraint. By definition, a prior restraint involves a legal prohibition on publishing something. Threatening to sue after publication isn’t a prior restraint. 

Third, there is no First Amendment violation when a private party sends such a letter. The First Amendment prohibits action by the government, not private individuals.

IFS then describes how proving libel against public figures requires a showing of falsehoods printed with "actual malice," a very high bar established by N.Y. Times Co. v. Sullivan.  This is the actual First Amendment question at issue here, not the prior restraint question identified by @alt_fec:

Such errors are among the reasons why @alt_fec has little credibility on First Amendment matters, and why we do not intend to respond to future attempts to bait us with patently ill-informed, partisan broadsides. But this particular tweet provides a teachable moment which, as a nonpartisan organization dedicated to a robust (and accurate) view of the First Amendment, we couldn’t let pass.

Yet, the FEC resistance movement is unperturbed by misstatements of the law and has since reiterated their initial, faulty analysis of the letter.  This is just a microcosm of the tactics of the movement to resist President Trump: partisan attacks, little respect for facts or law, and manufactured outrage.

Matthew Petersen Qualified to Serve on D.C. District Court

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.

Liberals Want to Use Russian Ads as an Excuse for Broad Internet Speech Regulation

David Keating, President of the Institute for Free Speech, and RNLA member Paul Jossey wrote in The Hill about how liberals and Democrats are using Facebook advertisements purchased by Russian agents as an excuse to regulate the online political speech of Americans.  First, they pointed out the narrow scope of the Russian ad problem:

As a practical matter, the Russian ads appear to have as much substance as spitting in the ocean. Estimates indicate the ads cost $150,000, and over half was spent after the election. By comparison, the money spent in the 2016 election in support of Donald Trump and Hillary Clinton was over 16,000 times more than the money Russians spent on ads. At most, only four percent of the nation’s voting age population saw one of the Facebook ads at issue. . . . [M]any of the ads occurred in 2015. Importantly, few even mentioned federal candidates. . . . 

Yet, despite their narrow audience and scope and no evidence of the ads having any impact on Americans' voting decisions, liberals are rushing to use them as an excuse to regulate speech:

Various interests have seized on Russian chicanery to push “reforms” lacking priority in less neurotic times. Sens. Amy Klobuchar (D-Minn.) and Mark Warner (D-Va.) sent a “Dear Colleague” letter seeking new rules for online ads. The resulting bill would burden internet speech with suffocating rules, even possibly banning some forms of online speech. Instead of hitting the Russians, the bill instead targets American speech, press and assembly rights guaranteed by the First Amendment. In short, despite the dearth of candidate references in the Russian ads, there is already a rush to chill the world’s most dynamic speech forum. 

After pointing out the sheer impracticality of any rule against foreign "influence" in our world with instant global communications, Mr. Keating and Mr. Jossey describe the real danger here -- government pressure to suppress certain speech:

The Washington Post reported that President Obama confabbed with Zuckerberg to ensure people on Facebook saw only legitimate news sources. The head of the federal government asking a media company to censor unwanted speech is frightening. Facebook says, “We share the values of free speech, that when the right to speech is censored or restricted for any of us, it diminishes the rights to speech for all of us.” 

But when government officials pressure it and other online outlets to police political speech, censorship risks skyrocket. The government should focus on ensuring that our voting machinery is safe from foreign hackers. Protection is also needed to prevent foreign agents from stealing internal candidate campaign communications. But when the issue is speech, we must exercise great caution lest zeal to curb foreign influence instead damages our own free speech rights. 

Lawmakers should exercise caution when considering any rule that limits speech or creates new regulations of speech, and any response to the limited (and quite frankly, incompetent) attempts by Russian agents to influence public opinion last year should be very narrow, targeted specifically to foreign speech, and specifically exempt speech by American citizens.  Any other internet speech regulation would be unconstitutional, in addition to being a bad idea.  Fortunately, Republicans in Congress and at the FEC understand this well.  As Mr. Keating and Mr. Jossey quite correctly point out, American citizens are the ones whose rights are taken away when speech is regulated.  

FEC Should Let the Internet Remain a Haven for Free Speech

RNLA Advisory Council member Dan Backer cautioned against further regulation of political speech on the Internet in The Hill.  He noted that FEC Democrats are using the allegations of Russian interference in last year's election to call for regulatory changes, but paid political communication on the Internet is already regulated by the FEC:

Broadening Internet regulations is a bureaucrat’s solution in search of a problem. As outlined in the Federal Register, the FEC already requires a disclaimer for any “public communication” that is “placed for a fee on another person’s website.” This includes paid express advocacy — any paid communications “advocating the election or defeat of a clearly identified candidate." Whenever an individual, corporation, labor union, or political committee “pays a fee to place a banner, video, or pop-up advertisement” on another’s website, they are engaging in “public communication” that requires a disclaimer.

But an individual's ability to speak and disseminate his or her message for free on the Internet has made it into a bastion of free speech that amplifies individual voices, and the FEC should not destroy it through regulation:

This consideration alone has compelled the FEC to allow the “vast majority of Internet communications” to “remain free from campaign finance regulation.” And our public debates have been better off for it. 

For good reason: Everyone can watch television or listen to the radio, but only those with money can use these mediums to communicate. The shift from receiving information to conveying information was a quantum leap, and the Internet enabled that. Today, we’re all essentially media entities, since we can all disseminate our ideas to the general public. This is a powerfully democratizing force. The FEC’s rulemaking would turn the clock back to the 20th century. 

The Internet must be left largely unregulated to preserve it as a convenient, inexpensive, and easily accessible tool for the robust exercise of free speech. The Internet’s unregulated nature is, at least in part, its charm. Even the FEC has recognized as much, describing the Internet as “a bastion of free political speech, where any individual has access to almost limitless political expression with minimal cost.”

We thank the Republican FEC commissioners and free speech advocates like Mr. Backer for fighting against the FEC Democrats' and the "reform" community's harmful urge to regulate core political speech.