Suppose I was opposed to the election of Hillary Clinton as our next president. Well, don’t suppose: I am. But suppose I were a wealthy man and paid to produce a television ad that centered on a video of Mizz Clinton’s recent speech in which she said, Don’t let anybody tell you it’s corporations and businesses create [sic] jobs. You know that old theory, ‘trickle-down economics.’ That has been tried and failed. It has failed rather spectacularly.”
And suppose I talked to my pals Bob Tyrrell and Wlady Pleszczynski, and asked them to run my ad on the Spectator’s website. As election regulations stand, they could do that without any restriction, so long as I didn’t pay them. But if I paid them, it would constitute some sort of in-kind political donation that would tangle them up in a load of paperwork.
But if the new anti-First Amendment ploy by the vice-chairwoman of the Federal Election Commission, Ann Ravel, becomes a federal regulation, the ad would be regulated regardless of whether I paid to run it. And so would be the content on this website. Blogs, YouTube, and everything else the Internet reaches would fall under the FEC’s jurisdiction. The FEC will eagerly invade all political speech online, paid or unpaid, even the content of the news and opinion articles like the ones we read every day.
As my pal Paul Bedard reported in the Washington Examiner on Friday, after a split vote of 3-3 on an FEC case that involved a YouTube video, Ravel has announced that she will try to continue a rulemaking process to address all of the political functions of the Internet. In a letter from October 24 announcing her intention, Ravel says that political advertising has become common online and will increase as more people gravitate to the Internet for news and entertainment. She implies, but doesn’t state outright, that the fact that Internet advertising is exempt from FEC reporting and regulations gives rise to the need for the FEC to regulate the political content of the Internet, whether in ads or anything else. If Ravel’s proposal were promulgated in regulation, the FEC could regulate the content of blogs, YouTube videos and even social media such as Twitter and Facebook.
In a counter-letter released the same day, FEC Chairman Lee Goodwin and the other two Republican members, Caroline Hunter and Matthew Petersen, gave a better view of what Ravel and the other Democrats on the commission (it’s set up so that there will always be three Republican appointees and three Democrats) are up to.
The matter came up in 2012 when a group called Checks and Balances for Economic Growth produced and posted two video ads on YouTube without reporting the costs of the video to the FEC and without including the FEC’s required disclaimers. On an FEC-generated complaint, the commission’s office of general counsel found, correctly, that the ads were exempt because they weren’t “electioneering communications” on “broadcast, satellite or cable communications”; because they weren’t “independent expenditures”; and because they were only on the Internet.
The letter from Republican-appointed commissioners concludes:
Over eight years ago, this Commission unanimously acknowledged that “[t]he Internet has changed the way in which individuals engage in political activity by expanding the opportunities for them to participate in campaigns and grassroots activities.” Recognizing the Internet as a “unique and evolving mode of mass communication and political speech…distinct from other media,” the Commission declared it would take a “restrained regulatory approach” with respect to online political activity. In this spirit, the Commission promulgated the Internet exemption to “remove any potential restrictions” on the ability of individuals and groups to use the Internet as a tool for civic engagement and political advocacy. Since then, this freedom has gained wide acceptance, as evidenced by the hundreds of thousands of political videos, websites, blogs, and other social media posted on the Internet without so much as an inquiry by the Commission. Regrettably, the 3-to-3 vote in this matter suggests a desire to retreat from these important protections for online political speech — a shift in course that could threaten the continued development of the Internet’s virtual free marketplace of political ideas and democratic debate.
Let’s unpack all this.
The Democrats, seeing the approach of the 2016 campaign, are determined to regulate political speech wherever it occurs on the Internet, and regardless of the Constitutional protections preserved by the First Amendment. The current FEC regulations require reporting and disclaimers only on paid internet ads, not on those that appear unpaid on the literally millions of websites that will carry political content throughout the next presidential campaign.
The problem stems from the Supreme Court’s various decisions that give the FEC the authority to do what they do, which, of course, like every federal agency, the FEC will extend as far as it can unless further limitations are placed on it.
In the 1976 decision in Buckley v. Valeo, the court decided that the First Amendment’s free speech guarantee wasn’t inviolate, and that the government had a special interest in preventing the corruption of the election process. It said, however, that any regulation burdening free speech and free association would be subjected to an “exacting scrutiny” standard.
Nevertheless, reporting requirements, limits on political donations, and restrictions on “electioneering communications,” all — in one form or another — passed constitutional muster. As you’d expect, the reasoning is convoluted, but it is stated in terms of preventing persons or entities spending large sums of money from purchasing influence over elected officials. In dozens of decisions since, most notably the McCutcheon and Citizens United decisions, the court has tried to rein in the limitations the FEC has tried to impose. At what point do the donations, in the court’s terms, allow those people or entities to garner “influence over and access to elected officials or political parties”?
Here it gets very fuzzy, because the court speaks in terms of the government’s interests in ensuring against “improprieties” or “the appearance of corruption.” And this is where the FEC’s Democrats are trying to slip past the “exacting scrutiny” standard and impose what they assert will be reasonable.
This is the point where we have to go back to the beginning and ask why there should be a Federal Election Commission at all. No, we don’t want the election process to be corrupted. But that’s why we have the federal anti-bribery laws that prohibit the sort of quid pro quo corruption between officeholders and donors that the court has wrestled with since the enactment of the Federal Election Campaign Act of 1971 and the Bipartisan Campaign Reform Act. In Buckley, the court said that contributions and expenditures invoke different protections under the First Amendment. But why should one type of political speech be less protected than another?
In McCutcheon, decided this year, the court seemed to remove the cap on individuals’ contributions but left in place the FECA base limits on individuals’ contributions to federal campaigns, PACs, and party committees. In Citizens United, decided in 2010, the court recognized that corporations, including media corporations, are entitled to political speech, which put them on even ground with unions and other political entities.
The whole purpose of the restrictions under FECA and BCRA are to control the amount and source of political speech. As the court repeatedly recognized that fact, it also — somehow — still says that the First Amendment, which prohibits congress from passing any law that limits free speech, stands. That conclusion is almost entirely false.
Politicians — with some resounding exceptions, as you may remember from ABSCAM and such — generally aren’t bought. Instead, by nature and nurture, they are selected almost genetically to ensure compliance with the basic demands of their ideology. They aren’t purchased with PAC contributions, YouTube videos, or anything else like them. Democrats needn’t be bought by unions with campaign contributions. They needn’t be bent to the agendas of the global warming and immigration amnesty proponents, because they are unwavering in support of these constituencies who are equally unwavering in their continued voting for Dems and against any challengers. Republicans needn’t be bought by those who owe their allegiance to the Republican establishment: they have likewise been selected by a kind of Darwinian process.
That’s why Ms. Ravel’s proposed rulemaking is so predictable, inevitable, and wrong. And so dangerous. She says she wants to make rules based on changing conditions and technology, but those conditions have no relationship to the unbounded advances of technology. Her allegiance is to the ideological factors that she wants to impose on the processes to make it harder for the free market in ideas to function.
If you have any doubt about the potential for abuse of the FEC’s powers, you need only look to an example of the Wisconsin’s state process, which George Will’s column brilliantly set out yesterday.
If the three Republicans on the FEC stand fast against it, they may be able to prevent the commission from interfering in the 2016 election. If they do not, conservatives will have to be ready to begin the lawsuits that may be able to enjoin this interference before it can take hold to affect the election cycle.
Congress has limited the amount of political speech, and the courts have only fine-tuned the limits to suit the political atmosphere. The only limit on political speech should be that foreign individuals, companies, and government should continue to be prohibited from donating to campaigns. Their political speech isn’t protected by the Constitution. Ours is. We are going to have to stand up to defend it again and again.
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