FEC Chairman sounds alarm to Hot Air: There’s a ‘move afoot to constrict press freedoms’
posted at 2:41 pm on July 24, 2014 by Noah Rothman
Federal Election Commission Chairman Lee Goodman issued a stark warning on Wednesday when he suggested that political speech and press freedoms were under assault by federal regulators.
In August, Rep. Paul Ryan (R-WI) will engage in a bus tour promoting his new book, The Way Forward: Renewing the American Idea. This was revealed in the release of a letter from the FEC following a request from Ryan’s attorneys to ensure that the House Budget Committee chairman remained in compliance with campaign regulations. Ryan’s team asked for and received permission to use campaign funds to purchase his own book in order to disseminate it as political literature.
While the FEC advisory opinion endorsed Ryan’s right to author and promote this work, the commission failed to answer whether Ryan’s publisher, Grand Central Publishing, would be immune from federal regulation under a standard “media exemption” – the same provision which exempts media outlets like newspapers, television networks, and online outlets from regulation.
“By failing to affirm this publisher’s constitutional right, statutory right, to disseminate a political book free from FEC conditions and regulations, we have effectively asserted regulatory jurisdiction over a book publisher,” Chairman Goodman, one of three Republicans on the six-person FEC board, warned in a commission meeting on Wednesday.
“That failure reveals a festering legal uncertainty and chill for the free press rights of books and book publishers to publish and disseminate political books free from government regulation,” he continued.
“The question is whether Grand Central Publishing and its book are exempt from regulation by the Commission on the same basis as newspaper publishers, magazine publishers, television stations, and online publishers,” read a concurring opinion authored by Goodman and two of his FEC colleagues, Commissioners Matthew Petersen and Caroline Hunter. “The answer is clearly yes.”
The Commission’s opinion here recognized that Grand Central Publishing has a historically limited, highly conditional exemption to market and sell political books. Instead of subjecting press entities to content-based restrictions and inquiries, the Commission should have granted the Requestors the affirmative protection of an advisory opinion based upon the threshold determination that the publisher is a press entity entitled to the media exemption when it publishes, markets, and disseminates its book.
One of Goodman’s Democratic colleagues, Commissioner Ellen Weintraub, strongly objected to the implication that the commission’s failure to achieve consensus on the Grand Central Publishing’s eligibility for a media exemption was “motivated by partisan bias.” She said that this suggestion was both “not appreciated and untrue.”
“I want to categorically deny that,” Weintraub added. “No one is banning books.”
That may be true but, in a conversation with Hot Air on Thursday, Goodman warned that the commission’s ambiguity on the issue of whether Ryan’s publisher was eligible for a standard media exemption from federal regulation will have a deterrent effect on other press outlets when considering whether to engage in political speech in the future.
“To me, that was the most significant failing of the commission in responding to this advisory opinion request,” Goodman said. “I believe it was incumbent on the commission to answer that question forthrightly and clearly.”
As a result of the FEC’s failure to achieve consensus on that issue, Goodman said, “Grand Central Publishing received no direction at all on whether the commission would respect its free press rights as a press entity.”
In Wednesday’s contentious meeting, Weintraub accused the FEC chairman of using “overheated language” and added that the public most likely did not “care a whole lot which exemption we use.” She also noted that the particular exemption applied to Ryan’s publisher was the same one applied to Michael Moore and his media company.
“What we call the media exemption, oddly enough, doesn’t use the word ‘media’ and doesn’t use the word ‘press,’” Weintraub said. “The exemption itself says the term expenditure does not include any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication.”
“I don’t know why Congress wrote the word ‘periodical publication’ in there, but they did, and we are constrained in interpreting that particular provision — to interpret that particular provision and the words that it uses,” she added. “That doesn’t mean that we’re banning books. That doesn’t mean that we’re regulating books.”
Goodman disagreed. “If that is true, and if books and book publishers are not protected by the press exemption in our law, than the Federal Election Commission is free – or, excuse me, is empowered – to regulate book publishers like it would any other corporation,” Goodman told Hot Air.
“The specter of what this commission has the power to do to corporate speech is quite ominous,” he warned.
According to a report, the Democratic members of the FEC were so put off by the events that transpired on Wednesday that they refused to participate in follow-up meetings. When asked if this was true, the FEC chairman refused to comment, but sources within the FEC confirmed that subsequent meetings were cancelled.
Goodman, who has been sounding the alarm about restrictions on political speech long before he joined the FEC in October, 2013, said he did “not believe this is the first step” in a process aimed at chilling corporate speech via federal regulatory agencies.
“I believe this is a step in a long series of steps where we are seeing an effort to constrict press rights within the commission,” he said. “I took issue with another step several months ago when this commission asserted regulatory jurisdiction over WCVB-TV Boston.”
At issue then was a complaint by a third party candidate who claimed he was illegally excluded from participating in a debate hosted by that network on a regularly scheduled Sunday morning news program. “The FEC looked at the case,” Fox News journalist Judson Berger reported in May, “because of allegations the treatment of the other candidates was tantamount to a contribution.”
“David Gregory and George Stephanopoulos should be concerned,” Goodman wrote in a February op-ed in The Wall Street Journal. “The same Federal Election Commission that represented to the Supreme Court that it could ban books now claims the authority to censor Sunday-morning news programs.”
“The commission proceeded to sit in judgment of the editorial criteria that WCVB used to pick the two candidates to appear on its show and to judge whether or not those editorial judgments complied with FEC regulations regarding debates,” Goodman said to Hot Air. “It was my position that we didn’t even have jurisdiction.”
That case was ultimately dismissed, but Goodman warned that this outcome was nevertheless problematic. “Inherent in the power to dismiss is the power to regulate,” he asserted.
When asked if the FEC was opening itself up to legal challenges by failing to provide political publishers with the freedoms accorded them in law and the Constitution, Goodman suggested that this was a possibility.
“I believe that if the FEC moves to enforce campaign finance regulation against bona fide press organizations like WCBV and Grand Central [Publishing], the FEC will lose any challenge brought by those organizations in court under our statute and under the free press clause of the First Amendment,” he said.
The onerous burden of having to mount a challenge in court in order to affirm the rights accorded to most media outlets is itself chilling, and Goodman is leery of the precedents being set by the FEC.
“I don’t think there is any question that the FEC regulates speech,” the chairman conceded. “The question in this case was whether or not the press is going to be regulated along with all other speakers.”
The Federal Election Commission chairman closed with a foreboding message. “There is a move afoot to constrict press freedoms along with everybody else’s freedoms within this agency,” he warned.
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