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Regulator Lee Goodman departs with legacy as a happy warrior for the First Amendment

Regulator Lee Goodman departs with legacy as a happy warrior for the First Amendment
© Greg Nash

Today is Republican Commissioner Lee Goodman’s last day on the Federal Election Commission. Goodman has been a steadfast defender of the First Amendment and the rule of law, cheerfully fighting for Americans’ rights despite constant attacks from the left. He recognized that while the FEC plays an important role in ensuring the transparency and integrity of the election process, the FEC regulates core political speech, subject to the highest protection under the Constitution and central to American freedom.

These are things his liberal colleagues have either forgotten or choose to ignore.

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.

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Because of his outspoken defense of the First Amendment, Goodman was repeatedly attacked. Yet, ever the happy warrior, he continued to stand up for freedom.

 

Consider just a few of his actions on the FEC.

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.

Last month, the Democratic commissioners and the FEC’s general counsel’s office would have found that a tweet of a candidate’s video, posted for free in a matter of seconds, constituted a contribution to a campaign, subjecting the tweet to regulation by the FEC. The Republican commissioners chided the Democrats for attempting to change the rules.

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.

FEC Democrats have not been content with trying to regulate tweets and Facebook posts, however. They have also set their sights on regulating the editorial decisions of traditional media. When a Boston TV station invited two candidates to its Sunday morning talk show, a third-party candidate accused the station of illegally donating to the invited candidates’ campaigns. The FEC Democrats evaluated the complaint based on their view of the station’s editorial decisions, despite federal campaign finance law specifically prohibiting the FEC from regulating the press. As Goodman and the other Republican commissioners noted, “[g]overnment officials cannot be trusted to regulate journalists fairly and without bias” and the FEC did not have jurisdiction over the TV station’s editorial decisions under federal law.

Commissioner Goodman has also been a leader in increasing the transparency and accessibility of information available to the public about the FEC and its regulations. For four years after the Supreme Court’s 2010 Citizens United decisions, FEC Democrats resisted any effort to update the text of the law to reflect the current constitutional interpretation. This is the real definition of “dysfunction.” But under Goodman’s leadership, the FEC finally updated its regulations to reflect current law.

He has supported increasing the transparency and speed of the FEC’s enforcement process. During his tenure, the FEC launched a new website designed to give Americans better access to information about the FEC and federal campaign finance laws.

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.

David A. Warrington is vice president for election education of the Republican National Lawyers Association and Of Counsel at Kutak Rock LLP.