At The FEC, Some Speakers Are More Equal Than Others

Ronald Hicks Vice-President of Communications, Republican National Lawyers Association
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Nowhere has the Orwellian maxim that “some [people] are more equal than others” been more evident recently than at the Federal Election Commission (FEC). At the end of Animal Farm (spoiler alert), the animals find that, having successfully thrown off their human oppressors, their new animal rulers are just as oppressive as the humans, but in the name of animal equality.

In the name of democracy and equal speech, campaign finance “reformers” demand broad power for the FEC to regulate the political speech of average citizens, organizations, and corporations, requiring disclosure, repeated filings, and compliance with complicated regulations (that not even the FEC understands), while asserting freedom and anonymity rights for their own political speech. This hypocrisy has been demonstrated numerous times in recent months.

Last week, in a Politico Magazine story largely critical of former FEC Commissioner and current White House Counsel Don McGahn, many of the “former FEC staffers, former FEC officials, campaign finance lawyers and friends of McGahn’s” requested anonymity to speak about McGahn. Yet many of these same FEC staffers, FEC officials, and campaign finance lawyers argue that those who wish to criticize elected government officials may not remain anonymous.

The altFEC Twitter account was established in January as part of the broad effort by career government employees to resist President Trump, their new boss. altFEC is the “unofficial #Resistance team of the U.S. Federal Election Commission.” The members of this FEC resistance team, tweeting regularly to their 26,000 followers, are anonymous, though Commissioner Ellen Weintraub and former Commissioner Ann Ravel receive many of their retweets. According to the “reformers” at the Center for Public Integrity, altFEC “offers decidedly Ravel-esque, and often anti-Trump, critiques of the agency.”

Just last August, the three Democrat FEC commissioners voted, in contravention of a well-established FEC exemption for political speech on the Internet, to investigate an organization that posted videos on YouTube critical of Senator Rand Paul’s stance on Iran’s nuclear program. In another example of “more equal” treatment, in 2015 the commissioners applied the Internet exemption in deciding not to pursue a complaint against a website that redirected to the donation page of Obama for America.

This has been a recurring story in recent years, evincing a desire by the Democrat commissioners to, in the words of Republican commissioners, “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.”

Part of this desire to investigate and regulate political speech on the Internet is to defeat anonymity through requiring registration and disclosure with the FEC. This would be especially hypocritical if Center for Public Integrity’s supposition is true and former Commissioner Ravel is involved with the altFEC account.

If Commissioner Weintraub is involved with the altFEC account, she should be recused from any matter before the commission regarding the Trump campaign or others targeted by altFEC for criticism—as it would be clear she has forsaken impartiality for partisanship, which is improper given her role as a commissioner who sits in judgment.

Last summer, the Democrat FEC commissioners voted to penalize Fox News for how it organized a Republican presidential debate. CNN organized the Republican presidential debate it hosted similarly but did not even face a complaint.

Fortunately, the structure of the FEC requires the votes of four commissioners to proceed with any action, so these votes were of no effect. The FEC consists of three Democrat and three Republican commissioners, so at least some bipartisan consensus is required for it to investigate or punish political speech. This safeguard protects against government officials using their power for political ends and was established in the wake of President Nixon using the powers of his office to coerce his political enemies. “Reformers” are pushing to decrease the number of votes need for the FEC to take action to three, which would allow one party to punish the political speech of those that disagree.

Since President Trump’s election, Democrats on the FEC have adopted an overtly, aggressively partisan tone. Then-Commissioner Ravel retweeted an article about the Women’s March that included a variety of strategies for resisting President Trump, including a call to donate to the Democratic National Committee, an entity registered with and regulated by the FEC.

Commissioner Weintraub, in an official statement from her FEC office on FEC letterhead, criticized President Trump’s statement about the impact of fraud on the 2016 senatorial election in New Hampshire. When questioned about her use of government resources to engage in activity outside the FEC’s limited jurisdiction, she unilaterally expanded the purview of the FEC, claiming power and the right to comment on “any aspect of the integrity of federal elections in the United States.”

These examples alone should be grounds for Commissioner Weintraub, and formerly Commissioner Ravel, to recuse herself from any matter involving the President, his campaign committee, and in Ravel’s case, the party committees.

Further, we can only wonder if the altFEC resistance team is tweeting on government time using government computers or mobile devices, even as they asserted that “effective” campaign finance regulation is a tool to hurt Republicans.

FEC commissioners have a fairly unique role in government. They are partisan appointees holding partisan positions who are charged with interpreting, applying, and enforcing federal campaign finance law in a hybrid judicial-executive manner that demands rising above partisan differences to look at the law fairly. Like all high-ranking government officials, they take an oath to “support and defend the Constitution . . . [and] bear true faith and allegiance to [it],” and the public should, and does, expect them to take that oath seriously. That means applying the law equally, without favoring certain speakers over others, especially as Democrats on the FEC maintain that the FEC has the power to censor books and movies.

Strong partisanship on the part of FEC Democrats shakes the public’s confidence that the FEC will apply the law equally without regard to partisan or policy goals. And when the “reform” community within and without the FEC applies different standards for speech and anonymity to themselves and others, it not only further de-legitimizes the agency but also reveals the “reform” movement’s goal: to silence speakers that disagree with them through actual or threatened government regulation.

In the end, the question is whether Americans should be concerned about the strong partisanship of this FEC’s Democrats. In my opinion, the answer should be “yes,” because the reformers’ right to speak in the name of democracy should not be greater than the right of those in the democracy who disagree with them.

Ronald L. Hicks, Jr., is Vice President for Communications of the Republican National Lawyers Association and a Partner at Meyer, Unkovic & Scott LLP.  All opinions expressed are his personal opinions.