Should the FEC Regulate Political Blogging?

Should the FEC Regulate Political Blogging?

BY Editors | Monday, March 7 2005

The predictable blogstorm that erupted following Federal Election Commission Commissioner Bradley Smith’s C|NET News interview suggesting a "coming crackdown on blogging" should not obscure the fundamental and important questions facing the FEC: now that the Internet has become an important part of political life and campaigning in the U.S., what regulations are appropriate and constitutional?

Appropriate regulation should meet two fundamental criteria: (1) grassroots activities should be regulated little, if at all; and (2) large-scale campaign activity—like advertising—that already faces regulation when done outside of the Internet should be regulated equally when the activity takes place through the Internet. The most difficult questions, as we’ll see, concern the role of popular blogs and online magazines that report on—and express opinions about—candidates for federal office. They should get a special exemption from reporting and coordination requirements, but they should have to disclose on their sites payments from candidates or committees to take a particular position in a federal race.

When the Internet began being used for political activity, the FEC took a largely hands-off approach to regulation (see this history), and it continued a mostly laissez faire but somewhat uncertain approach after the McCain-Feingold law passed in 2002. A recent decision by federal district court judge Coleen Kollar-Kotelly (one of the three judges hearing the challenge to the original McCain-Feingold law, and whose position was mostly upheld by the Supreme Court over the alternatives of two judicial colleagues) rejected a host of FEC regulations, including those exempting the Internet from any regulation. No free pass, the judge determined, and she sent the question back to the FEC for new rulemaking.

It is this impending rulemaking that spurred Commissioner Smith’s comments. He likely wanted to whip up the Internet community into an anti-regulatory frenzy, much like what happened in the non-profit activist community when it appeared last Spring that the FEC—in considering regulation of those "527" groups that became active in presidential politics—would regulate the campaign financing of some "501(c)" non-profits as well. That controversy generated 200,000 comments, and the FEC backed down.

Even without a crushing number of e-mails to the FEC protesting any proposed limits on Internet-based election activity, the FEC is likely to be reluctant to impose onerous requirements that crack down on grassroots political activity like personal blogging. Commissioner Smith doesn’t want it, and according to news reports many other commissioners don't want such regulation either. And Congress would likely overrule such regulations if the FEC enacted them and they survived court challenge. So I expect that the FEC will propose only modest regulation, mostly to insure that, as under current law, campaigns and committees fully disclose amounts spent on political advertising to appear on websites.

Blogging = Grassroots Activity?

But it is worth considering what the FEC should do, consistent with the goals of campaign finance law and the First Amendment. In thinking about any campaign finance regulation, the Supreme Court has said that we need to balance government interests that can justify regulation against the costs of regulating core political activity. Thus, regulations that can serve to prevent corruption or its appearance can justify some limits on campaign financing—and certainly justify disclosure—but they would not justify shutting down political speech for its own sake or interfering with grassroots political activity. (Indeed, in 1979, Congress loosened its 1974 campaign finance law out of a belief that it was discouraging grassroots activities such as the printing of campaign buttons, bumper stickers, and lawn signs.)

Outside of the Internet, grassroots activity related to federal elections and uncoordinated with candidates is clearly permissible, though when the amount spent on the activity exceeds $250 the spender must file reports with the FEC that identify who is doing the spending and where the spending goes. In practice, the FEC has not enforced this threshold very aggressively, which is probably for the best because the threshold is way too low under current law. (There are no limits on the amount that can be spent by individuals, either within or outside the Internet, independent of candidates and political committees.) The $250 disclosure threshold, even if enforced more aggressively, will provide a safe harbor for much Internet-based political activity, where the marginal cost of setting up an e-mail list or web page is negligible. That is—and this is a point ignored by Commissioner Smith—because much Internet speech is so cheap, it falls below the threshold of even the disclosure rules.

As Commissioner Smith’s interview shows, the real threat to grassroots Internet-based political activity comes from the issue of coordination. Generally speaking, when someone acts in coordination with a candidate or committee and provides a benefit to that entity, the financial value of the benefit sometimes counts as a contribution to the committee. So if I own a printing press and I print up $500 worth of bumper stickers at the request of a candidate’s committee, that’s like a $500 contribution—and the law limits the amount that individuals can contribute to candidates, even through in-kind activities. Otherwise a big donor could get around the $2,000 limit on direct contributions to candidates (per election) simply by making large in-kind gifts.

Commissioner Smith suggests that a blogger’s placement of a hyperlink to a candidate’s home page might be considered coordination with that candidate, and that the action could therefore trigger coordination rules and valuation rules that could get the blogger in legal trouble for making an excessive in-kind contribution.

The FEC likely won’t go down this route, nor should it. It should create a safe harbor for activities like linking to a candidate web page, much like current law creates an exception to the in-kind contribution rule for donating the value of one’s time for a campaign as a volunteer. There’s not much corruptive potential in creating such a hyperlink, and the government has no good reason to discourage what looks like beneficial, grassroots political activity.

The average, uncompensated blogger therefore appears to have very little to worry about from FEC regulation, fearing neither disclosure requirements nor contribution limits for political activity. The same appears to go for private individuals who send e-mails to friends, or even to a listserv.

Or Blogging = Corporate Activity?

But the questions are more difficult for corporate-owned websites and bloggers who earn significant income from their sites. Under existing law, corporations generally cannot spend money from their treasury expressly advocating the election or defeat of a candidate (that is, General Motors cannot run an advertisement saying "Vote for Kerry" or "Vote for Bush") and the restrictions are even stricter for broadcast advertisements. Corporations cannot fund broadcast advertisements within 60 days before a general election that feature candidates for federal office and are targeted at the electorate where the candidate is running for office (such as a corporate-funded television advertisement, "Ralph Nader, a True Leader") even if those ads avoid words of express advocacy. They can engage in both activities through their separate corporate PACs, which must raise funds separate from their treasury funds and subject to some stringent requirements.

Most media outlets are owned by corporations and therefore would be subject to these restrictions, but the law exempts corporate-funded bona fide newscasts, articles, editorials, and commentaries from these rules. Online corporate-owned journals like Salon.com, however, do not appear to fall within the literal ambit of this "media exemption," nor do any blogs that are owned by corporations, because the exemption on its face applies only to broadcasts, newspapers, and periodicals. As a matter of policy, bona fide on-line journals and political bloggers such as Hugh Hewitt, Andrew Sullivan, or Joshua Marshall, should be treated the same as the New York Times and David Brooks.

The FEC’s rulemaking should extend the media exemption to bona fide newscasts, articles, editorials, and commentaries appearing in online journals or political blogs. New rules should preclude a complaint that an online journal or blogger is making an in-kind contribution to a candidate by promoting (or attacking) a candidate for federal office through a blog posting, online journal article or commentary, or link, even if the journal or blogger has communicated with a candidate or committee. Thus, if Josh Marshall links to the Kerry for President site and generates 50,000 visitors to Kerry’s home-page and $1 million in new contributions, this should not be treated as an in-kind contribution, any more than if a David Brooks New York Times column inspired $1 million in contributions to the Bush campaign.

The FEC could and should still mandate that candidates and committees disclose money spent on election-related advertising at these or any websites. So if Andrew Sullivan receives a few thousand dollars for an advertisement promoting a federal candidate for office, that fact should be reported, just as it has to be for advertisements appearing in the New York Times. The real danger is if bloggers get paid in indirect ways to express favorable opinions about political candidates, and if those payments end up not getting disclosed. As the Armstrong Williams scandal shows, this is a danger that extends beyond the Internet.

For 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. Bloggers like the two South Dakota bloggers who were paid $35,000 to support the candidacy of John Thune should have to include on each blog page view a statement that the writing was paid for by the applicable candidate or committee.

One potential problem with my proposal to extend the media exemption is that it may be hard to determine what counts as a bona fide newscast or commentary. But this problem arises outside the Internet context as well (as does the broader question whether bloggers are journalists). Consider the NRANews, a satellite radio program that arose last fall and existed for the purposes of promoting President Bush’s reelection. The NRA is a corporation, and without a media exemption its broadcast discussions paid for by NRA treasury funds and mentioning President Bush during the 60-day period prior to Election Day should have been barred.

In other words, the changing nature of who counts as part of the media and can claim federal campaign finance law’s media exemption has implications that extend well outside the context of the Internet. But so long as the media exemption continues to be a viable concept outside the world of the Internet, it should be extended widely within the Internet to promote, rather than stifle, political discussion and debate.

At bottom, the question is whether regulation of Internet-based political speech serves the goals of the campaign finance laws. If we are worried about corruption and circumvention of contribution limits, Internet-based activity does not even become a problem unless significant sums of money are involved. Even then, in some instances, Internet-based news and commentary is enough like mainstream media so that the media exemption needs to be extended.

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

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