In July, the Federal Election Commission dismissed a complaint filed by the liberal Campaign Legal Center (CLC) against America Progress Now (APN). CLC alleged that APN had technically violated federal campaign finance regulations by failing to include required disclaimers for political ads on Facebook Ads run by APN's Facebook page. CLC also insinuated that APN was a "fake political group." However, CLC's real motive was not to get the small potatoes APN. The Commission made the decision to dismiss the Campaign Legal Center's complaint unanimously. In FEC Chairman Trey Trainor's Statement of Reasons for the complaint's dismissal, he raised concerns how a technical violation could be used to chill free speech.
Chairman Trainor's Statement of Reasons summarized the case as follows:
This matter arose from a complaint filed by the Campaign Legal Center (“CLC”) alleging that the person(s) who established and operated a group called America Progress Now (“APN”) violated the Federal Election Campaign Act of 1971, as amended (“the Act”) by running ads on APN’s Facebook page expressly advocating the election of certain federal candidates without complete disclaimers, and failing to report the spending on the ads as independent expenditures. Contrary to CLC’s wild speculation, this case wasn’t about a “fake political group… exploit[ing] Facebook rules… and hid[ing] spending from the FEC.” Rather, it was simply an unsophisticated individual trying to do the right thing but getting confused by the complex rules of federal campaign finance law.
In his statement, Chairman Trainor further continued that the Respondent expressed hesitancy to continue to exercise his First Amendment rights as a result of the action taken by CLC referring to a response to CLC's complaint, where the Respondent wrote:
I again offer my sincerest apology for any potential errors in failing to disclose. Given the apparent obstacles and unknowns of participating in the election process in this manner (of which I am learning some of now), it is highly unlikely I will ever participate in it again. I feel terrible for having been so ignorant to the process.
Chairman Trainor also called out CLC for taking advantage of the FEC's enforcement process to achieve aims unrelated to the purpose of such actions:
From the outset, CLC admitted that this complaint in this matter was really about “send[ing] a clear signal-both to political actors and to platforms like Facebook.” In its press release touting the filing of the complaint, CLC took aim at Facebook’s policies, with which it disagrees, saying, “Facebook has made no indication that it will independently verify whether an entity has actually reported its digital ad expenditures to the FEC.” Campaign Legal Center, “Fake Political Group Exploits Facebook Rules and Hides Spending from the FEC,” (Sept. 12, 2019), available at: https://campaignlegal.org/update/fake-political-group-exploits-facebook-rules-and-hides-spending-fec. I question whether using the FEC enforcement process to pressure a private service provider to change its terms of service is appropriate. Moreover, CLC filed the complaint when the Commission lacked a quorum and therefore could not take action on the complaint, but nonetheless seems to blame the FEC for its failure to act. I am concerned that such disingenuousness unnecessarily undermines the public’s perception of the FEC.
CLC was trying to make a point against Facebook by using the FEC's enforcement powers against APN. The RNLA applauds Chairman Trainor for his willingness, through his role as Chairman of the FEC, to stand up for Americans' First Amendment rights and against the potential chilling of free speech by burdensome application of regulations.