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Thursday, March 24, 2005

Carefully Contentious FEC Seems Split on Regulation of Internet Political Speech

Members of the Federal Election Commission diplomatically took diametrically opposed positions during opening statements this morning on a proposed rule drafted in response to a federal district court's 2004 rejection of the commission's previous attempt to apply campaign finance law to Internet regulation.

The commissioners couldn't even agree on whether their panel should consider regulating only paid political advertising on the Internet or subject the Internet to a comprehensive regulatory structure demanded by two of the main congressional advocates of the Bipartisan Campaign Reform Act of 2002 (BCRA).

Following an opening procedural statement by FEC Chairman Scott Thomas, Democrat Commissioner Ellen Weintraub noted that "we're under a judicial mandate to consider whether there is anything short of a blanket exemption" that will satisfy BCRA.

She was referring to the September 2004 "Shays v Federal Election Commission" decision of the U.S. District Court for the District of Columbia. That decision rejected as inconsistent with BCRA the commission's previous proposed rule providing a blanket exemption of the Internet from regulation designed to cover "public communications."

Weintraub sought to reassure listeners that "the judge's decision does not mean the the FEC must now regulate all, most or even very much Internet activity. We're faced with a question of statuatory interpretation and the phrase we're interpreting is 'general public political advertising.' We've taken that statuatory language as our guidepost and focused on paid advertising and political 'spam' email sent to lists acquired in commercial transactions."

Weintraub added that "the focus of this agency is campaign finance. We're not the speech police. The FEC does not tell private citizens what they can or cannot say on the Internet or anywhere else." She also noted a recent statement by Sen. John McCain, R-AZ, and Russ Feingold, D-WI, claiming that "'this issue has nothing to do with private citizens communicating on the Internet. There is no reason - none - to think that the FEC should or intends to regulate blogs or other Internet communications by private citizens.'"

But Weintraub's reassurance drew a pointed response from Republican Commissioner Brad Smith who noted that the September 2004 decision was occasioned by a suit filed against the FEC by the two main BCRA advocates in the U.S. House of Representatives, Rrep. Christopher Shays, R-CN, and Rep. Marty Meehan, D-MA.

Smith pointed out that in their briefs to the District Court Shays and Meehan that under BCRA "the Internet must be subject to the structure of campaign finance regulation." Smith also noted that in a statement by the Campaign Legal Center in an amicus brief it filed on behalf of McCain and Feingold, the BCRA authors asserted that they "never, ever suggested BCRA only applies to paid advertising" on the Internet.

Dave Mason, another GOP Commissioner, added to Smith's comments, cautioning that "there is a huge difference between being completely exempt and being regulated just a little bit. What we are talking about is people's freedom of expression."

Mason added that "the logic of regulation follows the logic of physics and once we start down this road, it will be very difficult to foresee where it will end." Even if the commission agrees on the latest proposed rule, it may still be sued by campaign finance advocates such as the Campaign Legal Center.

The bottom line for the FEC, Mason said, "is that too many of my colleagues are unwilling to say 'no, we're not going to regulate the Internet.'"

FEC Vice-Chairman Michael Toner questioned whether "Congress intended for the Commission to regulate the Internet" when it approved BCRA. "Congress did not include the Internet in the statuatory definition of 'public communication.' I do not believe this omission was an accident. Rather, I believe it was a conscious, informed judgement by Congress that the Internet should not be subject to the many restrictions that [BCRA] applies to other types of mass communications."

Democrat Commissioner Danny McDonald chided Smith and Mason for "staking out positions" on an issue that has yet to reach the point of implementing a new rule. "This hearing is to elicit public comment ... why not give the public a chance to tell us what they think," McDonald said.

Acknowledging that "probably nobody in this room knows less about the Internet than I do," McDonald nevertheless criticized the controversy that flared weeks ago when word first reached the public that the FEC was considering a new rule that could impose limits on political speech on the Internet. "I've never before seen such ado about nothing as this."

RedState's Mike Krempasky remains at the hearing as this post is filed and will have a more comprehensive report on the hearing later today.

UPDATE: Mike files his initial observations on the hearing here. Here's a summary:

"But - I will say this - don't believe the hype, and don't believe Ellen Weintraub when she repeats her mantra of 'Bloggers, Chill Out!' This draft rule, (yes, it's a draft that will change) creates an unacceptable regulatory minefield for bloggers.
"Consider this - the FEC raises two significant possible 'havens' for political bloggers - the 'volunteer' exception and the 'media' exception. The volunteer exception is preferable, because it's a sort of shall-issue exception. If you're an individual, and you're 'uncompensated' - you're pretty much free to go (except..the FEC also considers an individual to only be allowed to spend a 'nominal fee' in the course of providing services to a candidate or committee. Do you think the FEC realizes that the hosting tab for a moderately popular weblog can reasonably cost $1,000 a year?) do what you want.
"On the other hand - if you're a group, an incorporated blog, or you get compensated - no exception for you. (more on that in a bit)
"On the other hand - the media exception will pretty much be extended on a case-by-case basis. Who decides? Why, the government of course. Welcome to regulatory compliance hell. Even better - it heavily resembles a licensing regulatory scheme, since presumably you have to submit to the FEC to get the exception before you do or say anything, lest you violate the law."

Hmmm, sounds like the proposed FEC rule should be gone over - fisked - by the Blogosphere like a CBS memo.