The following article is a supplement to the MRC Report: The Biden Administration Waged War on Free Speech with 57 Censorship Initiatives.
Initiative #37
The FEC’s Blessing of Big Tech Censorship & Election Interference
Type of Censorship: Direct Action
Agencies Involved:
- Federal Election Commission (FEC)
Summary:
In flagrant defiance of election law, the Constitution’s equal protection clause and the First Amendment, President Joe Biden’s Federal Election Commission (FEC) created two different sets of censorship laws: one for Big Tech, and one for the rest of us.
To the dismay of many First Amendment supporters, federal election law requires high-value political speech regarding elections to be logged with the government as an “independent expenditure.” If the speech is conducted in coordination with a campaign, it must be disclosed as an “in-kind contribution” and is capped at a few thousand dollars (the exact number fluctuates based on inflation). This rule applies to business services that are provided to one campaign at a different rate than when provided to another campaign. The FEC is one of the agencies tasked with enforcing these rules.
Big Tech giants have routinely disregarded these laws, platforming their chosen candidates while selectively censoring their political opponents without making an effort to comply with disclosure laws. Under Biden, the FEC evaluated three complaints highlighting egregious examples of such lawlessness:
- Veteran free speech attorney Charlie Spies filed an FEC complaint against Twitter (now X) on behalf of a former Republican congressional nominee. After Congressman Lois Frankel (D-FL) demanded her GOP opponent be censored (as reported by Breitbart News), Twitter provided Frankel access to its platform and advertising service while denying it to the Republican.
- Congresswoman Ana Paulina Luna (represented by Spies) filed an FEC complaint against the Big Tech platform Twitter (now X). Luna detailed how Twitter had denied her a “verified” checkmark — which Twitter itself admitted was worth thousands of dollars — even while giving it to her Democrat opponents.
Each complaint highlighted a rare instance where the expenditure limit and in-kind contribution caps did not invoke free speech concerns: Google and Twitter had each already represented in court many times that they had no personal speech interest in what others say on its platform.
However, instead of enforcing the law equally, and as written, the FEC manufactured a fictitious, atextual and entirely nonsensical “commercial” exemption to campaign finance law to excuse the Big Tech censorship in each case. Under this reasoning, a person who used her own money to run ads on Twitter or YouTube for her chosen candidate could be sent to prison if she did not log it with the government, but Twitter and Youtube could censor that same ad (or provide it for free) and not face any legal consequences.
In a very literal sense, the Biden FEC’s precedent (which has not yet been challenged in court) made two different sets of laws: One for Big Tech, and one for the rest of us.
Key Individuals:
- Sean Cooksey, FEC Chair
