Turning the Web loose
U.S. Sen. Harry Reid’s effort to exempt the Internet from some provisions of federal election law is drawing him praise from Web supporters but criticism from election-law reformers.
Reid’s Senate Bill 678 proposes that the sentence, “Such term [public communication] shall not include communications over the Internet,” be added to the 1971 Federal Election Campaign Act.
The same language was previously part of a regulation of the Federal Elections Commission (FEC) that was overturned by a federal court because there was no basis for it in election laws.
The issue is important because the Internet is becoming a bigger part of elections. Election laws, however were mostly written before the Internet existed. Election laws already on the books define “public communication” as “communication to the general public by means of broadcast, cable, satellite, newspaper, magazine, outdoor advertising, mass mailing, telephone bank, or any other general public political advertising,” all of which may be regulated under the law. The term is used throughout federal election law. Internet denizens resist being swept into the definition.
Trevor Potter of the Brookings Institution has written, “Congress assumed in 1975 that, without spending, political speech would consist merely of standing on a street corner and shouting, one of the few forms of public communication not regulated or reportable under the federal election laws. The rise of the Internet as a medium of mass communication changes these fundamentals of communicating political speech.”
Right now, for instance, Congress is considering whether to require Web pages being subsidized by campaigns to disclose it, a proposal that gained new urgency when it became known that some journalists and columnists were in the pay of the Bush administration.
Bloggers, message boards and other Web pages with political content don’t want to get caught up in election law just because they are a form of “public communication.” Many Internetters supported the FEC regulation that was overturned by Judge Colleen Kollar-Kottely.
“As already noted, Congress did not expressly include the term ‘Internet’ in its statutory definition of ‘public communication,’ but it did include the phrase ‘any other form of general public political advertising',” Kollar-Kottely wrote in her opinion. “While all Internet communications do not fall within this descriptive phrase, some clearly do.”
Nevertheless, she overturned the regulation because the law was not clear enough for the court to anticipate Congress’s meaning when it came to the Internet.
Reid’s proposal would restore the protection previously offered by the FEC regulation that the court overturned. In a letter to the FEC chair, Reid used the familiar language about the Internet being an electronic Wild West: “As you know, the Internet has provided a new and exciting medium for political speech. It has generated a surge in grassroots involvement in our government and has proven to be a democratizing medium in our political process. Regulation of the Internet at this time, with its blogs and other novel features, would blunt its tremendous potential, discourage broad political involvement in our nation and diminish our representative democracy.”
But Reid’s bill does have one of his reform minded colleagues worried. In a dialogue with a blogger, Democratic U.S. Sen. Russell Feingold of Wisconsin, author with John McCain of the Bipartisan Campaign Reform Act (BCRA) said of Reid’s proposal, “S. 678 is not just about blogging. It would exempt all communications on the Internet from the definition of ‘public communication’ in the campaign finance laws …
“If Congress were to enact a statute exempting all Internet communications from regulation, it would open a huge loophole in BCRA’s ban on soft money. It would allow, for example, state parties to use unlimited soft money donations to attack Federal candidates on the Internet, using paid advertising and expensive video streaming. It would allow corporations to spend unlimited amounts of their shareholders’ money denouncing one Federal candidate on Web sites even if that campaign was designed and directed by that candidate’s opponent. Opening this loophole would undo all of the successes of BCRA that we saw in 2004, from increasing the number of small dollar donations to reenergizing the party.”