The FEC and FCC Prepare Speech Nooses
by EDWARD CLINE
November 1, 2016
American citizens are in for a double whammy of speech restrictions, and even of censorship. The Federal Election Commission (FEC), and the Federal Communications Commission (FCC) want to ratchet up the pressures of freedom of speech.
Two independent news blogs have bravely reported developments in this realm when they stand a chance of being "lawfully" obliterated by the government: The Daily Signal, and Accuracy in Media.
On the one hand, the FEC is a government agency that should not even exist. But it was pushed and encouraged by Theodore Roosevelt, a Progressive, and so the initial legislation was introduced and passed by Congress, on the premise that regulating Big Business was the natural thing to do (re the Sherman Anti-Trust Act of 1890 of 1890, and other Federal regulations)
As early as 1905, Theodore Roosevelt asserted the need for campaign finance reform and called for legislation to ban corporate contributions for political purposes. In response, the United States Congress enacted the Tillman Act of 1907, named for its sponsor Senator Benjamin Tillman, banning corporate contributions. Further regulation followed in the Federal Corrupt Practices Act enacted in 1910, and subsequent amendments in 1910 and 1925, the Hatch Act, the Smith-Connally Act of 1943, and the Taft-Hartley Act in 1947. These Acts sought to regulate corporate and union spending in campaigns for federal office, and mandated public disclosure of campaign donors.
But the urge to regulate corporate contributions during political campaigns can be dated to the immediate post-Civil War period.
Although attempts to regulate campaign finance by legislation date back to 1867, the modern era of "campaign finance reform" in the United States begins with the passage of the Federal Election Campaign Act (FECA) of 1971 and, more importantly, 1974 amendments to that Act. The 1971 FECA required candidates to disclose sources of campaign contributions and campaign expenditures. The 1974 Amendments essentially rewrote the Act from top to bottom. The 1974 Amendments placed statutory limits on contributions by individuals for the first time, and created the Federal Election Commission (FEC) as an independent enforcement agency. It provided for broad new disclosure requirements, and limited the amounts that candidates could spend on their campaigns, or that citizens could spend separate from candidate campaigns to promote their political views.
Fred Lucas in The Daily Signal article of October 20th writes:
Books, movies, satellite radio shows, and streaming video about real-life politics aren't protected by the First Amendment's guarantee of a free press, some government officials argue.
The Federal Election Commission hasn't proposed banning books or movies, but in a 3-3 vote last month along party lines, the six-member panel left the regulatory option on the table.
But the six appointees are thinking about it. It's an option "on the table." The FEC is divided evenly between Democrats and Republicans. It is a "bipartisan" entity. The notion of "bipartisanship" politics is counterproductive, to say the least. In a situation when decisions of enforcing or creating arbitrary power over free men must be made, the most consistent party will always "win." One party must compromise its principles, if it has any. The Republicans have no principles. Otherwise they would not have encouraged the creation of FEC. It is the Democrats, with their consistent, unswerving commitment to statism and the regulation of the private affairs of other men, who have been setting the terms and establishing the "moral high ground" of altruism - that is, sacrificing men and rights for the "greater good," for the "community" - for over a century. The Republicans have always seconded that altruism, and said, "Me, too!" Very few Republicans have maintained an explicit, articulate fealty to the founding principles of this nation.
It's a good thing for me that the FEC hasn't discovered my books, such as Trichotomy ( a roman à clef), set in 1929, on how the collectivists and Progressives will take over American education, or A Crimson Overture, how Reds and Pinks have infested the American government for decades, or We Three Kings, about an American entrepreneur who is "thrown under the bus" by the State Department to be killed at leisure by a Saudi sheik over a gold coin, or The Black Stone, in which the hero deals with the Muslim Brotherhood killers as early as 1929. They and other titles are prescient . But that would not matter. Each and every one of these titles, although they are fiction, could be deemed too provocative, blasphemous, injurious, or slanderous to allow their continued availability for sale and reading by "deplorable," "every day" Americans. They certainly contain what could be interpreted as "partisan material."
There really is no way to know what would be going through the minds of the FEC. If the proposal to regulate or prohibit the content of books, editorials, radio stations, and videos is "on the table," it is too much to hope it would ever be taken "off the table." The itch to control, regulate, or even prohibit is too tempting to resist scratching.
It's doubtful that these appointees take any political fiction seriously, but it's unnerving nevertheless to know that the option "is on the table" to banish a title or a program or an Internet news site they could easily put on a Federal Index Librorum Prohibitorum. A certain presidential candidate has already said that she wants Breitbart and InfoWars reduced to ashes. What's to stop the FEC or the Department of Justice from targeting lesser known blog sites? Nothing.
The FEC hasn't spoken in a unanimous voice about what Goodman and others say are basic matters of free speech under the First Amendment. Rather, various commission votes open the door to applying campaign finance laws to movies, books, and other media rarely ever considered before as campaign contributions.
In the past two years, the FEC, divided equally into Democrat and Republican factions, investigated books containing partisan material (among them a book by House Speaker Paul Ryan, R-Wis.), a conspiratorial film disparaging President Barack Obama, and a Republican presidential debate on Fox News Channel.
While the presidentially appointed commission sanctioned neither Ryan's publisher nor Fox News, it avoided granting the "press exemption" to either.
"Respect for the free press shouldn't vary based on who is on the commission or on the content of the publication," the FEC's Lee Goodman says.
The exemption was designed to ensure that news organizations, which generally are corporations, cannot be accused of electioneering or making in-kind campaign contributions based on news reporting or commentary on political candidates. The law states, in part:
B) The term ‘expenditure' does not include-
(i) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate; ...
In one case, FEC member Ellen Weintraub, a Democrat, suggested the "press exemption," provided in campaign finance law, doesn't protect book publishers.
Weintraub then referred to the Supreme Court's 5-4 ruling, in the 2010 case Citizens United v. Federal Election Commission, that organizations have free speech rights allowing them to spend money to support or oppose political candidates.
The work we do need to do, which some of my colleagues, including Commissioner Goodman, have blocked for years, is to write rules that respond to Citizens United and the advent of super PACs. Sadly, even routine regulatory fixes have become nearly impossible to accomplish at the FEC.
This useful and almost entirely noncontroversial technological-modernization proposal has been bogged down for years. I decided to stick with the staff's draft in the hope of getting this done without further delaying it with nongermane but substantive proposals.
And who is to determine what is and is not "nongermane" or "substantive"? Not you or me.
Six individuals - whether they are appointed or elected is immaterial - will determine after verbal cat fights in conference rooms over the future of free speech.
As though that were not "worrisome" enough, we are witnessing the disgraceful and damning spectacle of the major American news outlets not so much censoring what they report, but dispensing with objectivity and facts in their quest to guarantee the election of their preferred presidential candidate, and so crudely and transparently biased that few people take them at their word anymore. Today's MSM is comfortable with lies and outright fabrications.
The press, or the mainstream media (MSM), has usually been exempted from FEC regulations. We have grown inured to that. We have also grown inured to the blatant liberal bias of the MSM, so much so that it is largely held in contempt by Americans as a notoriously untrustworthy source of news. ABC, NBC, CBS, MSNBC, CNN, and NPR have all been "electioneering" for over a year, without disguise or pretence. The New York Times, the Washington Post, and countless smaller newspapers and magazines have gone hog wild "electioneering" without penalty or so much as a tut-tut from the FEC.
However, "charitable" organizations that fall under 501(c)3 regulations must remain mute. The FEC virtually acts as a policeman for the IRS to enforce 501(c)3 constraints.
The "guidelines" include:
Organizations described in section 501(c)(3) are commonly referred to as charitable organizations. Organizations described in section 501(c)(3), other than testing for public safety organizations, are eligible to receive tax-deductible contributions in accordance with Code section 170.
The organization must not be organized or operated for the benefit of private interests, and no part of a section 501(c)(3) organization's net earnings may inure to the benefit of any private shareholder or individual. If the organization engages in an excess benefit transaction with a person having substantial influence over the organization, an excise tax may be imposed on the person and any organization managers agreeing to the transaction.
Section 501(c)(3) organizations are restricted in how much political and legislative (lobbying) activities they may conduct. For a detailed discussion, see Political and Lobbying Activities. For more information about lobbying activities by charities, see the article Lobbying Issues; for more information about political activities of charities, see the FY-2002 CPE topic Election Year Issues.
Let us now turn to the Federal Communications Commission.
Jerry Kenney in hit October 21st article on Accuracy In Media (AIM), "FCC Approves Foreign Takeover of U.S. Broadcasters,"breaks the bad news:
The Federal Communications Commission (FCC) on September 29th did something worse than give up control of the Internet. They voted unanimously to put America's entire broadcast industry on the fast track to a foreign takeover by Chinese, Russian or Muslim Brotherhood front corporations.
This new FCC rule gives foreign interests the long sought-after tools they need to shape U.S. public opinion and to censor the opposition.
Once a foreign corporation scoops up a media business, such as a chain of radio stations, it can eliminate national and local programming and substitute its own government's propaganda. That means that conservative talkers could find themselves off the air.
Off the air? There are so many candidates for microphone gagging and, on the Internet itself, so many blog sites that could now be turned blank and the reader advised: "Server not Found"! or "This site has been blocked for indecent or inappropriate content." Indecent content could be calling the FCC wonks names, or criticizing Islam.
The FCC? Or the Organization of Islamic Cooperation (OIC)? Or some petty local bureaucrat who has put a premium on publicly saying something "Islamophobic" about Muslims or Islam? Or some elitist FCC regulator who is empowered to control what you say or see and can pontificate about the "public service" of his power in the Wall Street Journal or the New York Times, which would allow no comments or rebuttals ?
Do you see how closely the FEC and FCC are linked in ideology? Kenney writes:
At the final FCC vote, Commissioner Ajit Pai said the new rule will "give broadcasters greater access to capital." Accessing capital by selling 100 percent interest in a business? Isn't that called selling out?
Only in Washington is a going-out-of-business sale called "accessing capital." If accessing capital is the main issue, I guess by that standard we should repeal the laws that make bank robbery illegal, too. After all, aren't bank robbers just accessing capital?
No, there is much more at stake here than just capital. It's called a free and independent press. Thanks to the FCC, soon foreign interests will be able to masquerade as your friendly neighborhood TV or radio station (the national media sold out long ago). And you can count on them waving the American flag as they do it. Remember Al Jazeera America buying Al Gore's Current TV?
The Wall Street Journal and Reuters have reported extensively on Chinese purchases of movie theater chains and Hollywood production companies, including a current bid to buy Dick Clark Productions. Chinese interests have also leased local underperforming AM radio stations in major U.S. markets such as Washington D.C. Based on the nature of those deals and their financial losses, it is clear that China's interest in entering the U.S. media market is more to influence public opinion than to turn a profit.
Foreign, and especially Chinese, money has purchased great gobs of Hollywood studios. So it is no wonder that anti-Communist or even anti-Islam movies are completely absent from the big screen and TV.
Broadcasting is not just another pipe through which you deliver data. A broadcaster controls the message and the content.
So why did this happen? The current FCC commissioners are mostly lawyers and lobbyists with political connections to both political parties. These political parties depend on financial contributions from major corporations, including media corporations. They want the option of dumping their broadcast properties off on cash-heavy foreign buyers, no matter what impact it has on the public's right to know.
The system is rigged, even in favor of the foreign interests buying up America.
Remember: China runs a very efficient and effective censorship system.
All tyranny, no matter how banal, is necessarily rigged against freedom of speech. Censorship is a kind of "Game of Thrones." The goal in such a "fantasy" is the consolidation of power - over your mind, and over your life or your livelihood.
Edward Cline is the author of the Sparrowhawk novels set in England and Virginia in the pre-Revolutionary period, of several detective and suspense novels, and three collections of his commentaries and columns, all available on Amazon Books. His essays, book reviews, and other articles have appeared in The Wall Street Journal, the Journal of Information Ethics and other publications. He is a frequent contributor to Rule of Reason, Family Security Matters, Capitalism Magazine and other Web publications.