The feds have acknowledged they can’t ban books — and it only took 43 years

For the first time in its history, the Federal Election Commission has officially recognized that books and book publishers are exempt from agency regulation. Although that conclusion was obvious to defenders of a free press, it has taken the FEC 43 years to acknowledge it cannot ban political books.

The case file made public this week involved Penguin Random House’s publication of “A More Perfect Union” by Dr. Ben Carson and its marketing of the book in the summer of 2015. Someone thought Penguin’s expenses on Dr. Carson’s promotional book tour constituted an illegal corporate contribution to Carson’s presidential campaign and filed a complaint with the FEC. The FEC, by a vote of four to one, concluded that Penguin and the book are exempt from regulation under the campaign finance law’s longstanding Press Exemption.

{mosads}When Congress wrote the Federal Election Campaign Act to restrict corporations from contributing money to federal candidates, it recognized that most television stations and newspapers are corporations.

In order to protect the free press rights of the corporate press to cover and comment on politics, Congress prohibited the FEC from regulating any costs associated with a press organization’s coverage or publication of a “news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication.” In legislative history, Congress explained that this Press Exemption is intended to “ensure the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns.”

Over the ensuing four decades, the FEC debated but could not assemble the necessary four votes (the agency is comprised of six commissioners and the law requires four votes to form a binding legal position) to conclude that books and book publishers are “other media” protected from regulation along with television news and newspapers, even though the Supreme Court ruled long ago that books are part of the press.

The issue came to a head in 2009 in a case not about books, but about a film. The case was Citizens United v. FEC and the issue was whether the government could censor a documentary film critical of Hillary Clinton. When the case was argued before the Supreme Court in 2009, Chief Justice John Roberts asked a government lawyer representing the FEC if the agency could ban a political book, published by a corporate publisher, in the name of good government. The government’s response was “Yes.” Justice Samuel Alito called the assertion “incredible.”

The government’s assertion of power to ban political books was so startling that the court ordered re-briefing and reargument. The colloquy obviously shook some justices to doubt the conventional logic underlying the federal scheme for restricting the expenditure of corporate resources to publish political opinion.

The government rethought its power too. In the time between oral arguments, the government reflected upon the wisdom and constitutionality of banning books. But only slightly. When asked the same question during reargument, this time the FEC’s lawyer — this time Solicitor General Elena Kagan — asserted that the FEC had changed its mind, but only slightly. It wouldn’t ban books, but it would ban “pamphlets.”

Books returned front and center in 2014. National book publisher Grand Central Publishing wanted to publish House Speaker Paul Ryan’s book about the conservative movement, “The Way Forward,” and asked the FEC for an advisory opinion recognizing its right to market and distribute the book free of regulation. Because the coordination between a non-exempt corporation and candidate Ryan could be deemed an illegal corporate contribution, the regulatory consequence could have been censorship of the book.

Despite Solicitor Kagan’s representation to the court that the FEC would not ban books, the commission could not muster four votes to recognize the press rights of Grand Central Publishing, although to their credit commissioners found an alternative, if more limited, legal theory for the publisher to sell its books. But the free press rights of all other book publishers still lay in doubt.

In an effort to resolve these split votes, and square the Press Exemption with the Free Press Clause, in September 2016, I proposed an amendment to the FEC’s regulations to clarify that books, in traditional and digital format, are included in the press protected by the Press Exemption. Unfortunately, that vote failed three to three, and it appeared the commission had returned to its “incredible” position before Roberts.

But all’s well that ends well. At my last executive session as a commissioner in February 2018, the commission concluded that Penguin’s “A More Perfect Union” is part of the press exempt from regulation. This is a profoundly important legal development and marks an important milestone in the commission’s history. Finally, Mr. Chief Justice, the FEC’s answer is definitively “No,” the government cannot ban books.

Lee Goodman served as chairman (2014) and commissioner (2013–2018) of the Federal Election Commission. He is now a partner with Wiley Rein LLP.