(from my e-mail)
Democracy 21 Press Release | June 3, 2005 | www.democracy21.org
Three leading campaign finance watchdog groups today filed comments with the Federal Election Commission urging the agency to adopt new rules that would largely exempt individuals, including bloggers, from regulation of their online political activities when they operate on their own Web sites. The groups supported a regulation proposed by the FEC that would apply campaign finance rules to paid ads placed on another person’s Web site.
The groups also recommended that state party committees be prohibited from using soft money — unregulated, unlimited checks from corporations, unions and wealthy individuals — to promote or attack federal candidates via any party communications on the Internet.
The groups — Democracy 21, the Campaign Legal Center and the Center for Responsive Politics — submitted the comments in an ongoing FEC rulemaking on how best to apply campaign finance laws to online campaign activity. The rulemaking was compelled by a district court judge’s May 2004 decision in Shays v. FEC ordering the agency to re-visit 15 of the regulations it promulgated to implement the Bipartisan Campaign Reform Act of 2002. The court held, in particular, that the agency’s decision to grant all activity on the Internet a flat exemption from the definition of “public communication” would “severely undermine [the Federal Election Campaign Act of 1974’s] purposes” and “permit rampant circumvention of the campaign finance laws and foster corruption or the appearance of corruption.” The agency will hear public testimony on June 28 and 29.
The groups’ comments noted that the campaign finance laws should be read to permit full and robust online political activity by individuals. In particular, the groups urged the agency to recognize that the growth of the Internet has had impressive democratizing effects, significantly increasing the number of small donors in politics and boosting citizen participation in public debates. At the same time, they note, “to exempt the Internet, across the board, from all applications of the campaign finance laws would open up the Internet to serve as the vehicle for the flow of soft money into federal elections, contrary to the language, structure and the underlying goals of the campaign finance laws.”
According the watchdog groups’ comments:
We are aware of the unique features of the Internet and the challenges posed in applying the campaign finance laws to this new medium. We recognize that an aggressive reading of the law with regard to the Internet, as the Commission at times has done in the past, would result in the imposition of impractical and burdensome constraints on political discourse over the Internet, with few corresponding benefits to the underlying principles served by campaign finance laws.
On the other hand, it is equally true that a per se exemption of the Internet from all applications of the campaign finance laws is a blunderbuss approach that invites obvious circumvention of important contribution and expenditure limitations in the law, especially in those rules governing political committees, corporations and labor unions. . . .
The challenge posed by this rulemaking, then, is to draw careful lines that strike the right balance, not only to avoid over-inclusive regulation that would chill the beneficial use of the Internet a little or no cost for political discourse by individuals, but also avoid under-inclusive regulation that would allow the Internet to become an unregulated haven for unlimited soft money to be used in derogation of the campaign finance laws, and the principles underlying those laws.
The groups made the following recommendations:
— Exemption for “Internet activities” by individuals. The groups endorse the FEC’s proposal to exempt from the definition of “contribution” or “expenditure” any money spent by an individual for “Internet activities using computer equipment and services that he or she personally owns for the purpose of influencing any Federal election,” whether such activity is independent of or coordinated with a candidate or party. “Internet activities” are defined to include e-mailing, linking, distributing banner messages, blogging and hosting an Internet website. The effect of this rule would be to relieve individuals, including bloggers, from having to file disclosure reports or include disclaimers on any of their personal online activity, or to have that activity subject to any limit, even if coordinated with a candidate or party.
— Exemption for incorporated bloggers. The comments recognize the need to ensure that individuals who act as bloggers, but who incorporate for liability purposes, should not be subject to the range of campaign finance regulations applicable to corporations. The groups urge the FEC to consider whether it has the authority to define an exempt category of “blogger corporation” as an incorporated entity whose principal purpose is to conduct blogging activities. Such corporations could be treated as individuals for purposes of the campaign finance rules, allowing them to take advantage of the exemptions from the basic definitions of “contribution” and “expenditure” for Internet activities conducted by individuals.
— Press exemption. The groups support the FEC’s proposal to grant a “press exemption” to legitimate media organizations that operate via the Internet. The comments note, however, that not all activity that takes place over the Internet is per se a media activity that is automatically exempt from the definition of “expenditure.” The groups endorse the Commission’s view that the extension of the media exemption to the Internet applies only to “media activities that otherwise would be entitled to the statutory exemption,” and urges the Commission to consider questions on the applicability of the exemption in its typical case-by-case manner.
— Definition of “public communications.” The definition of “public communications” in campaign finance law should include, as the FEC draft rules propose, “announcements placed for a fee on another person’s or entity’s Web site.” This proposed rule would mean that the purchase of paid advertising on another person’s Web site in coordination with a candidate would be subject to the rules on coordinated spending, under which such activity would be characterized as an in-kind contribution. This rule would not affect bloggers, whose activities generally do not involve the expenditure of money to purchase space on another person’s website.
With regard to corporations and labor unions, as well as political committees (including political parties), the groups urged that the definition of “public communications” should include all communications disseminated to the public via the Internet, not just paid advertisements.
In conclusion, the groups note that the adoption of the proposed rules:
would have an extremely limited impact, if any, on the use of the Internet by individuals as a means of communicating their political views, obtaining information regarding candidates and elections, and participating in political campaigns. Subject to the modifications discussed above, we think the proposed rules strike the right balance in avoiding both over-inclusive regulation that would threaten the free flow of political discourse on the Internet, but also under-inclusive regulation that would open the Internet to the flow of soft money for the purpose of influencing federal elections.
To view the comments, please click here:
www.campaignlegalcenter.org
www.opensecrets.org
www.democracy21.org
To view the comments submitted to the FEC by congressional sponsors of the Bipartisan Campaign Reform Act of 2002, please click here.(pdf)
# # #
Capital Bits & Pieces Vol. V, No. 14 | Released: Friday, June 3, 2005
Contact:
Amanda Lewis
Democracy 21
202-429-2008
alewis@democracy21.org