The Federal Election Commission is responsible for enforcing the act that governs the raising and spending of money in federal campaigns. Last year, the commission dismissed a complaint filed against Twitter and its executives that claimed they had violated federal law. Given the recent public disclosures of internal as well as external Twitter communications with campaign and party organizations, the FEC should reopen that investigation. It must determine if that dismissal was based on false information provided by Twitter. 

In 2021, the FEC investigated three consolidated complaints filed against Twitter, Jack Dorsey, Brandon Borrman, and the Biden for President campaign. Dorsey is Twitter’s co-founder and the former CEO, while Borrman is Twitter’s former vice president for global communications.  

According to the "Factual and Legal Analysis" report prepared by the FEC’s general counsel, the complaints alleged that Twitter made a "prohibited corporate in-kind contribution" to the Biden campaign. Federal law bans corporations from contributing "anything of value" to federal candidates. For example, if a corporation allowed a campaign free use of rental property it owned, that would be an illegal, in-kind corporate contribution. 

The complaints argued that "Twitter made an in-kind contribution when it blocked users from tweeting links to or certain information derived from" New York Post articles about the Hunter Biden laptop. The complaints alleged that Twitter engaged in limiting "the visibility of, or ‘shadow banning,’ Republican users" as well as "suppressing distribution of an interview of an alleged former business associate of Hunter Biden." The latter allegation referred to Tony Bobulinski, who claimed that he had been defrauded by Biden and that the Biden family was involved in an "influence-peddling operation." The complaints also claimed that Twitter illegally coordinated its actions with the Biden campaign, and thus the Biden campaign had "knowingly accepted the prohibited corporate contributions." 

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After investigating the allegations, the six commissioners voted to dismiss the complaint. But, according to the general counsel’s report, that decision was based on Twitter telling the FEC that Twitter had not made an illegal corporate contribution since it had "bona fide commercial reasons" for its actions and they were "not made for the purpose of influencing a federal election."  

Furthermore, Twitter "submitted a sworn declaration by its Head of U.S. Public Policy [Lauren Culbertson] attesting that neither she nor any other Twitter employee ‘received any communications from or had any communications with representatives of [the Biden Committee]’" before Twitter took action to suppress the New York Post revelations. The general counsel also reported that the "Biden Committee states that it did not coordinate with Twitter." 

The supposedly "bona fide commercial reasons" provided by Twitter was its policy against distributing "hacked" materials. Yet there was no evidence that the materials had been hacked. The New York Post articles made it very clear that its information came from a laptop that Hunter Biden had abandoned at a computer repair shop. Moreover, Twitter had no qualms about distributing articles based on the highly classified documents illegally disclosed by Edward Snowden in 2013. 

Nor was there evidence that the laptop information was false. Neither Hunter Biden nor the Biden campaign ever "publicly denied the authenticity of laptop documents." 

Small wonder that recently disclosed internal communications show Twitter’s own policy communications manager saying he was "struggling to understand the policy basis for marking this as unsafe."  

These disclosures show that the FEC may have dismissed these complaints based on false and incomplete responses by Twitter.  

The commission seemed to accept at face value Twitter’s claim that it had acted for "bona fide commercial reasons," but the fact that executives inside Twitter were questioning its suppression of the story certainly casts doubt on that claim.  

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Moreover, the now disclosed communications between Twitter and various political actors calls into question whether the company was being truthful when it denied any communication with the Biden campaign about these issues. That also seems to have been a key factor in the FEC’s dismissal of the complaint. The general counsel’s report says: "there is no evidence that Twitter coordinated its action with the Biden Committee, and as such, the actions did not constitute contributions." 

When they dismissed the FEC complaint, several of the commissioners stated that even if Twitter had engaged in the actions charged, it was entitled to the media exemption for publishers in federal law. But Jack Dorsey himself said in 2020 when asked "Is Twitter a publisher? No, we are not. We distribute information."  

There is now reason to believe that Twitter and its executives misled or outright lied to the FEC. The commission should reopen its investigation, subpoena Twitter for all of the materials and communications relevant to these issues, and determine whether federal campaign finance laws were violated. It should also investigate whether any individuals who submitted sworn declarations committed perjury and should therefore be referred to the Department of Justice for potential criminal charges.