Democratic efforts on the Federal Election Commission to punish media and stifle voices like the Drudge Report and Fox are going “underground” after failing in public, according to the agency’s outgoing defender of media and digital outlets.

“The debate has gone underground, it has not ceased,” said Lee Goodman, who fought off several attempts to stifle outlets like Fox, Drudge and conservative media including film makers.

“The desire to regulate Americans' political speech on the internet remains alive and well here at the commission and now even in Congress,” added Goodman, whose last day on the FEC is Friday.

Goodman pointed to efforts by FEC Democrats to change long-standing media exemptions to fines and even criminal charges. In two recent cases he cited, the Democrats proposed those changes then waived imposing punishments.

But by moving to change the rules the FEC operates under, the Democrats tried to open the door to future legal sanctions on media, he said.

In a memo about a recent case, for example, Goodman said that Democrats Ellen Weintraub and Steven Walther wanted to upend a long-standing practice of not holding media outlets responsible when political campaigns and advocates fail to include in ads the required disclaimer stating who paid for the ad.

In that case, two anti-Hillary Clinton ads were run in an Ohio newspaper, the Chesterland News, that did not carry the required disclaimer. FEC lawyers recommended no action against the paper, citing precedent that the person placing ads is responsible.

Weintraub, wrote Goodman, proposed changes ending the practice. Instead, the paper would be cleared due to a commission “discretionary dismissal.” His memo is shown below.

Goodman told us, “Too often colleagues here and throughout the government wish to regulate core First Amendment rights through the exercise of ‘discretion,’ or ‘prosecutorial discretion.’ They rely on vague ‘facts and circumstances tests to decide when to punish and when to let a violation slide. Regulation by human discretion means an inherent risk of bias and unequal treatment.”

In the Chesterland News case, he wrote, the effort was killed in a split vote. But, he added, it was a sign of continued efforts to regulate the media. The vote, he wrote, signaled “a renewed effort by some to change current law to impose civil and criminal liability upon traditional press organizations like Chesterland News, or to new media platforms like Facebook and Twitter…”

In his memo, he expressed “strong disagreement with any proposal to impose civil and criminal liability upon press entities, as well as their new media counterparts, when they agree to make their publications available for political advertisements.”

He added, “in over 40 years of enforcing [FEC] disclaimer requirements, the commission has never held a press entity legally responsible for disclaimers it its own content or publication of paid ads.”

And if the changes pushed inside the FEC weren’t enough, Goodman also said that congressional Democrats are angling to crackdown on the media through the Honest Ads Act.

“It proposes to punish advertising platforms like NewYorkTimes.com and Facebook.com and DrudgeReport.com if they fail to publish the names of all Americans who want to discuss political subjects through paid ads on their platforms. Joe McCarthy would blush at a sweeping law that forces all American associations who want to speak and associate around political ideas to be named publicly,” he said.

During his nearly five years, Democratic commissioners at first targeted conservative outlets for regulation then recently turned to Facebook and Twitter amid concerns Russia was using the outlets to manipulate the 2016 elections. But he and other Republicans on the commission fought to keep the media and internet free from regulation, though supported disclosures on paid advertising.

“I have been concerned about all efforts to regulate the press — all press organizations and newsrooms and new media,” Goodman told Secrets.

The drive for regulation, he said, comes from the explosion of politics on the internet and the Russian concerns.

“First and foremost, more political speech is being published on the Internet, and for those who prefer greater regulation of politics, their regulatory attention will focus on the latest and most active forum for political activity, and that's the internet,” he said.

“Second, those who desire greater regulation of political speech have decided to use the scare of a few Russian ads on Facebook as an excuse to restrict the free speech rights of millions of American citizens and American media and technology companies. I think the Russian excuse will fade as a justification to restrict the free speech rights of American citizens, just like the Red Scare of the 1950s eventually subsided. But there will always be an excuse invoked to regulate new media and Internet speech.”



Paul Bedard, the Washington Examiner's "Washington Secrets" columnist, can be contacted at pbedard@washingtonexaminer.com