Wednesday, June 1, 2005

Here’s our advice to the Federal Election Commission regarding Internet regulations: Tread lightly. If the federal government must apply campaign-finance laws, specifically McCain-Feingold, to the Internet as a federal judge ruled last fall, it should do so with as light a touch as possible. Unfortunately, no matter what the FEC decides, there’s a chance that the days of unbridled political discourse on the Internet are nearing their end.

The good news is that, until the judge’s ruling, the FEC had exempted the Internet from the law. This makes us optimistic that there is little interest among the FEC commissioners to anger the online, pajama-clad bloggers. For instance, included in the FEC’s “Notice of Proposed Rulemaking” is a rule to expand the news-media “exemption” of the law to include Internet news sites. Presumably, this would include bloggers — but don’t be so sure.

Instead, the focus of the NPRM is to extend the definition of “public communications” to include paid advertisements placed on third parties’ Web sites. While appearing minor, this in fact carries some fairly onerous demands. As the Center for Democracy and Technology notes, assuming that NPRM is approved in its entirety, an individual planning to express his views on the Web would have to consult Chapter 11 of the Code of Federal Regulations to determine if his speech would be treated as a “public communication”; if his speech qualifies as “express advocacy”; if he qualifies under the news-media exemption; if his Internet activities count as contributions subject to limits; if his Internet activities count as expenditures for reporting purposes; if his use of an employer’s computer to access the Internet is permissible; if his bulk e-mail requires a specific type of disclaimer; and whether his plan to collaborate with someone else on the Internet qualifies as a “political committee” subject to registration and reporting requirements.

Conversely, an individual who wants to post a political advertisement on someone else’s Web site would be subject to campaign-finance regulations no matter how small the cost of the advertisement. (In some cases, online advertising space runs for as little as 3 cents per ad display.) That individual would be required to display on the ad personal information like a home street address. Other forms of online political advertising, such as video production, would carry even more burdensome regulations.

The fallout from this regulatory nightmare would have what the CDT rightly calls a “chilling effect” on Internet free speech. In keeping with the judge’s order, however, the FEC has to do something. It has asked for public comment on the proposed rules and e-mails that can be sent to until the deadline tomorrow.

Barring a reversal of the judicial ruling, the only alternative would have to come from Congress, where there are currently bills in both chambers to exempt the Internet from FEC regulations. We encourage lawmakers to support the bills so that Internet free speech can advance unimpeded.

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