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FEC Takes First Stab at Internet Rules: More Clarity Needed

March 24, 2005

Editors

At first glance, the Federal Election Commission’s draft proposal for regulating Internet-based election activity is good news for the blogosphere. Contrary to the blogstorm of fears that it would take a heavy hand, the FEC seems to understand that this is a different medium where speech is cheap and the need for regulation aimed at constraining the corrupting effects of big money is slight. However, the FEC’s first stab at writing new rules raises as many questions as it seeks to answer, and we must remain wary of both intended and especially unintended consequences.

The FEC entered this mess reluctantly, only after a federal district court rejected its earlier attempt to exempt most Internet activities from its regulatory reach. Yesterday its staff released draft regulations tackling the subject which the six commissioners are likely to approve at today’s meeting. After approval, the regulations will be printed in the Federal Register, opening up a 60-day comment period, followed by a further FEC hearing and adoption of final regulations.

If history is any guide, the final approved regulations could differ in significant respects from the current draft, and aggrieved parties may challenge the final regulations in court (which is what got the FEC to this point in the first place)—if Congress doesn’t act first to provide a broad exemption for Internet-based election activity. So we are far from having these rules on the books. But examining the draft is useful in seeing the direction that the FEC likely will take, and the questions that remain open.

FEC Intent: Limited Internet Regulation

There’s little question to a reader of the draft regulations that the FEC’s intent is to use a light hand in dealing with Internet-based political activity. Responding to the federal district court opinion that led to this rulemaking, the FEC’s main regulatory change would treat paid web-based campaign advertisements such as pop-up and banner advertisements under the same rules (regarding disclosure and permissible sources of funds for such ads) that apply to advertisements appearing off-line. Even here, however, the FEC treads lightly, at this point questioning whether it should treat an “announcement” on a website that is paid for by a candidate or campaign the same as a web-based campaign advertisement.

Indeed, much of the FEC’s draft seeks to limit regulation of the Internet. Even for paid advertising on websites that would otherwise be subject to regulation, the FEC is looking for alternatives to usual burdensome disclosure rules that require detailed information to accompany paid election-related advertising: “The Commission notes that with respect to most Internet websites and blogs, the burden of complying with the disclosure requirement, and the resources needed for the Commission to monitor such a requirement could outweigh the value of disclosure.” In a similar spirit, the FEC would not even require bloggers to disclose that they were paid significant fees by candidates or campaigns to promote or oppose a candidate for federal office.

Similarly, the Commission draft confirms (contrary to FEC Commissioner Smith’s hyperbole) that merely linking to a candidate’s website, and republishing campaign materials on a website or through e-mail, when done without payment, would not constitute a contribution to a campaign triggering reporting requirements. Perhaps even more significantly, the FEC would extend the media exemption. The current exemption does not treat news articles and commentaries such as those appearing in the Los Angeles Times or on CNN as an improper corporate election-related expenditure. The FEC would extend the exemption to online journals such as Slate and perhaps to bloggers as well.

FEC Execution: Unclear Internet Regulation

In some respects, the FEC’s first stab at regulation is too hands-off for my taste. I have argued in my previous article for PDF that “[f]or Armstrong Williams-like bloggers actually paid by campaigns or other political committees to promote or attack a candidate for federal office, prominent and on-the-spot disclosure should be mandated.” A disclosure on a campaign’s website in a quarterly report after the election deprives voters of valuable information about the possible motivations for an analysis or commentary appearing on a website.

But the greater danger of the FEC’s proposals, if enacted as they are, is the additional uncertainty that they would create. For example, consider someone who has a private website or blog that contains occasional political commentary. Suppose the blogger owns the site as a corporation. Corporations cannot engage in certain election-related activities except through a separate political action committee subject to numerous reporting and disclosure requirements. Can the blogger post commentaries calling for the election or defeat of a candidate for President? The draft rules extend the media exemption to news stories, commentaries and editorials appearing over the Internet, but written materials in this category must appear in a “newspaper, magazine or other periodical publication.” It is not clear that a blogger fits into this category, particularly if the blogger does not post regularly. [Editor's note: PDF contributing editor Michael Bassik adds his own analysis on this issue here.]

Similarly, what of a volunteer who has a website supporting a candidate for federal office, who maintains that website not just at home and at a public library, but also every day at lunch hour while working at a corporation? The FEC rules create a safe harbor for volunteer activity of this sort when conducted at home, when using personally-owned equipment, or when using equipment at a public place like a library. It is even permissible to use corporate-owned equipment, but only when the use is “occasional, isolated or incidental.” What of a professional who blogs regularly from work wants to engage in election advocacy on the blog?

The FEC will need to sort out these issues in the final set of rules. If the media exemption applies to all non-corporate bloggers, just who is a “blogger?” Perhaps this is just the FEC’s roundabout way of exempting the entire Internet (save paid advertisements and corporate web activities) from the scope of its review.

The corporate rules appear aimed at preventing evasion of the usual rules keeping corporations and unions out of political activity. But the rules appear to miss the reality of where, when, and how many bloggers conduct their activities—it is private activity conducted with the knowledge, but not necessarily the support, of the corporation. Will the scope of regulation turn on which computer a blogger happened to be at when writing a post calling for the defeat of a candidate for federal office?

Next Steps

Some bloggers have already started taking credit for the FEC’s apparent light stance on regulation. But there was little reason to believe that the FEC was really interested in regulating the Internet, Commissioner Brad Smith’s intentional blogstorm notwithstanding.

But bloggers have a crucial role to play at this point. Now that the FEC has entered into the fray, things could get worse before they get better. The law of unintended consequences has played itself out in campaign finance laws in the past. Bloggers and others need to go over the proposed regulations very carefully to examine what’s unclear, and what’s missing. The draft itself raises many questions, questions that the final set of regulations should answer clearly. Without clarity, you can bet that complaints will be filed at the FEC against the most successful partisan bloggers on both sides of the political aisle in 2006 or 2008.

Richard L. Hasen is a professor specializing in election law at Loyola Law School. He writes the Election Law Blog.

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