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Rudy Takala's Columns

FEC's Lee Goodman: Federal power grabs are the real 'dysfunction'

In the  Washington Examiner.

The Federal Election Commission was formed by Congress in 1975 to regulate federal campaign spending limits. As Supreme Court decisions have loosened limits on campaign spending over the past decade, the role of the agency in regulating political speech has become an increasingly contentious issue.

By law, the commission is divided evenly between Republicans and Democrats, which means that any action the commission takes must receive bipartisan support. Yet over the past couple of years, liberals on the commission have proposed creating new, unprecedented authorities for the agency to engage in regulatory activity. Those proposals have included regulating online political speech, establishing quotas for women and minorities to get elected to federal office, and ending the commission's bipartisan structure to allow for one-party rule.

Republican Lee Goodman was appointed to the commission in 2013, and served as its chairman in 2014. In that time, he has become a leading voice among conservative regulators in Washington. Like former president and fellow Virginian Thomas Jefferson, a portrait of whom he has hanging in his office, Goodman is a strict constructionist, and he objects to the claim made by some Democrats, including the FEC's chairwoman, that the commission is "dysfunctional."

Goodman says instead, "I would say the dysfunction resides in those who want to expand FEC jurisdiction beyond its constitutional boundaries."

Washington Examiner: How would you say the FEC has evolved since its inception?

Goodman: For 40 years on a daily basis, the FEC has been tasked with balancing profoundly important First Amendment rights with a regulatory scheme that restricts free speech in the name of distancing elected officials from the resources it takes to win elections. The law has changed dramatically during those 40 years. I guess you could say we're still experimenting with the proper balance.

What I have found most interesting from the perspective of commissioner is the high number of very close calls in gray areas of law. Sometimes the regulatory approach is gray because a recent Supreme Court decision has changed the law, often with ripple effects. Other times a new fact pattern is presented. There are those who see every gray area as an opportunity to expand regulation — the regulatory glass is half empty and we need to fill it with new regulatory theories or legal interpretations. I see the current regulatory scheme as glass pretty full, and so I err on the side of freedom in close calls.

Examiner: Looking at the big picture of campaign finance and free speech, where do you see the pendulum swinging today?

Goodman: The pendulum has demonstrably swung toward greater freedom for speech and association. In the past 10 years, the Supreme Court, Congress and the FEC have moved decidedly toward greater free speech.

However, there is also a concerted, well-funded effort to swing the pendulum back the other way, so the First Amendment and its predicate values will remain in tension and debate for many years.

Examiner: It's popular in academia, the media and generally in popular culture to say there needs to be more regulation of federal campaign spending. Do you feel you're in the minority?

Goodman: If we're talking about the right of The New York Times, the Washington Examiner or Jeff Bezos and the Washington Post to spend large amounts of corporate money to publish editorial opinion about elected politicians and public officials like me, I'm clearly in the majority of public opinion. If we talk about protecting the free speech rights of online bloggers, Drudge Report and YouTube videos, I'm also in the majority.

The rest of us are not as well-funded as The New York Times, Washington Post or the Washington Examiner, and we cannot own a printing press or a broadcast facility. The way in which we disseminate our information through a printing press is by renting inches in the press owner's publication, or seconds of a broadcast.

All a super PAC really does is rent 30 seconds of a television station's broadcast time or print inches in the Washington Post. First Amendment rights should not turn on whether I own the printing press or rent the printing press.

Examiner: You were chairman of the FEC in 2014. The chairmanship rotates, and Democrat Ann Ravel served as chair last year. How would you compare your tenures as chair?

Goodman: The most remarkable difference has been the tone we set as chairs. I worked hard to reset the tone of the commission. When I arrived in late 2013, the commission had been stalemated over everything because of philosophical disagreements.

I looked hard to identify issues that could unite the commission, understanding that certain philosophical differences would be unavoidable. I moved two important rulemakings and I attempted to limit the number of 3-3 split votes especially on advisory opinions. At the end of my year as chair, I counted all votes taken by the commission and we achieved majority votes in 93 percent of all votes taken, including substantive and administrative votes, and 87 of all votes on substantive matters. I think that was pretty good for a bipartisan commission in Washington.

Chair Ravel has taken a different course. In April, she told The New York Times that the agency was hopelessly "dysfunctional," as she defined that term, and was quitting efforts to work with the Republican commissioners. This was four months into her term. Since that time, she has tried to turn "dysfunction" into a self-fulfilling prophecy, and she's left constructive opportunities on the table.
For those who say the agency is dysfunctional because of the number of 3-3 votes, I would say the dysfunction resides in those who want to expand FEC jurisdiction beyond its constitutional boundaries.

Examiner: To eliminate the dysfunction, Ravel has proposed changing the commission to enable one-party rule. What do you think of that?

Goodman: I believe that Congress acted wisely in constituting the commission as a bipartisan body. One team should not get to call all the balls and strikes of the game, nor should a president like Richard Nixon be able to misuse the DoJ or the IRS or the FEC to punish or target political opponents. When we do regulate politics, it must be done on a bipartisan basis.

Examiner: In a Comedy Central appearance, Ravel said the FEC was as useful as "men's nipples." Do you have any reaction to that?

Goodman: You will have to ask Commissioner Ravel about that statement. I thought the comedy failed, if that's what she intended, and was an undignified way to chair a federal agency and discharge the profound constitutional duties of office.

Examiner: What do you consider your principal accomplishments in your two years on the commission?

Goodman: First, last year I led the effort to conform the FEC's regulations to the Supreme Court's rulings in Citizens United andMcCutcheon. The commission had been stalemated for five years and continued to publish unconstitutional regulations. We fulfilled our constitutional responsibility and eliminated over four pages of unconstitutional regulations and clarified others. I feel gratified that the rule book will be four pages lighter when I leave the commission than when I started.

Second, we approved an advisory opinion authorizing the national parties to establish convention committees with separate contribution limits. That was really important because Congress had eliminated public funding for conventions and the parties needed regulatory assistance.

Third, late last year and earlier this year I blocked an effort by Commissioner Ravel to regulate political speech on the Internet, including social media like YouTube videos posted for free. Although the desire of some to regulate the Internet still exists, we have it in check now.

Fourth, we moved the commission to free innovative online fundraising platforms and applications that empower individual donors. I have worked very hard on a series of advisory opinions, and worked with fellow commissioners to free new technologies that empower individual citizens to participate in online contribution platforms.

I would also count as important achievements launching the FEC's website redesign project in 2014, which required the affirmative support of all six commissioners, and improving the commission's reports analysis division, the group that reviews all the reports that are filed, because they actually assist political committees in complying with the disclosure laws.

Examiner: A 2006 rule passed by the FEC states that online political speech should remain free of regulation. That rule provoked controversy last year, when the commission split 3-3 in a vote on whether to regulate a political video posted on YouTube. Ravel spoke in support of more regulation. Is this something website owners need to be concerned about?

Goodman: Absolutely they need to be concerned. In the late 1990s, the FEC indicated it would regulate every expenditure remotely related to a citizen's use of his personal computer. Even one's monthly Internet access fee would count as a political expenditure regulated by the FEC. It wasn't long before the FEC thought better of that paradigm.

So in 2006 the FEC drew a new line: If you pay a fee to a third party to advertise on the Internet, we regulate that like a paid television ad, but if you post political content on your website or another's website without paying a fee, we don't regulate it. Since 2006, political speech on the Internet has flourished. It's also become effective, which has sparked the regulatory attention of some within the FEC.

The debate surfaced late last year and continued into this year until my Democratic colleagues announced they were abandoning any effort to change the 2006 rule, for now. But the impulse hasn't dissipated, it's just gone underground, and internal debate over the metes and bounds of the 2006 Internet rule continues. So the threat is real.

Examiner: You have also advocated broad press freedom. You're conservative, but the press is often viewed as having a liberal bias. Why has press freedom been important for you?

Goodman: A free press is essential to a healthy democracy and to keeping a powerful government in check. Congress recognized this when it passed the Federal Election Campaign Act's speech restrictions in 1974 by including in the law an explicit exemption for the press. It said hands off the press. But the commission historically has ignored the press exemption and tried to regulate the press on many occasions.

An ambivalence persists among commissioners to this day and many votes on press freedom are split votes. Some commissioners want to preserve regulatory discretion over press entities. Bona fide filmmakers, book publishers, websites have all received mixed treatment.

I cannot sit here today and tell you with any confidence that a majority of commissioners would recognize a news aggregator like the Drudge Report as a bona fide press organization free from FEC regulation. So the threat is real and I will continue to fight for a broad press exemption. And the Internet exemption is important for websites like Drudge too, as a secondary legal protection if the press exemption fails.

Examiner: What have been your greatest disappointments at the FEC?

Goodman: There have been a few of those. My greatest regret so far has been slow progress on strengthening the political parties, especially state and local parties.

Last year, I sponsored a forum focused on the issue of political party regulation. Representatives from the Working Families Party, several state and local Democratic Parties and Republicans attended and spoke in one voice that federal regulations are too onerous, prohibit populist democratic activity and they need regulatory relief. We have helped the parties. We authorized all new national convention committees with separate contribution limits. And we have blocked several onerous regulatory burdens through 3-3 votes at the audit stage and enforcement stage.

I thought we could achieve four or more bipartisan votes to strengthen political parties, so I also advanced a proposal to grant state and local parties greater regulatory freedom to engage volunteers in the political process and register new voters.

Now if we could just get the major press organizations to support everyone else's right to speak, we might move public opinion to appreciate the free speech rights at stake in the debate over super PACs.

Unfortunately, my Democratic colleagues voted against that proposal last month. But the issue isn't going away, and I will keep fighting the good fight to help parties work as effective political institutions.

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