Posted on 03/24/2005 7:02:59 PM PST by neverdem
The Federal Election Commission revealed yesterday that it plans to take what one of its commissioners termed a "relatively nonintrusive" approach to regulating political campaigns on the Internet.
The agency, which is beginning to consider how and whether to restrict blogs, e-mail and other online activities, released a document describing the legal issues it plans to tackle over the next several months.
Its "notice of proposed rulemaking," as it is known, indicates that the FEC is focusing much of its attention on whether to apply federal contribution limits on online political advertising campaigns. It also indicates that the six-member panel has not decided to impose, but is leaning against imposing, restrictions on independent bloggers or bloggers who work for political campaigns.
"I think that we're trying to use this document as some sort of broad hint that, at least at this stage, we don't plan to regulate the vast majority of what individuals do [online] and the vast majority of what bloggers do," said FEC Chairman Scott E. Thomas (D).
"It is designed to give people a pretty clear signal that the FEC never did have any intent to overregulate citizens who want to use Internet technology for communicating in the area of politics," he added.
The agency is being forced to address the issue after losing a federal court case last fall. Two of the sponsors of the campaign finance reform legislation that was adopted in 2002 had sued the FEC, complaining that the regulations it wrote to implement the law were too lax. In September, the legislation's sponsors won. The agency must now rewrite a number of those rules, including ones that had left online political activities virtually free from government regulation. But the FEC is free to address whatever legal issues it chooses.
(Excerpt) Read more at washingtonpost.com ...
Lemme know.
Congressman Billybob
Come and get me you dirty coppers!
Yeah, right.
"We-ell, thet depends on whut y'all's definition of "relative", is."
I think that would be great! Thanks very much!!
Great statement. I guess we are to infer that you will, at a later stage, attempt to regulate what individuals and bloggers do on the internet.
After the FEC puts out its proposed rules, you or I can post them on FR. You can lead the discussion on what the position of the FR community should be on the Internet rules. I would not presume to speak for FR on broader, non-Internet issues.\
I will take my guidance on what to say, from that threat. You should probably send the official letter to the FEC asking for an opportunity to be heard.
Cordially,
John
I'm sure that we can take their word for it. No doubt they're taking as their model the actions of other relatively nonintrusive federal agencies such as the IRS, the DEA, and the BATF.
"Light hand" ain't good enough. According the First Amendment only "no hand" is appropriate.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
I guess this means we get to kiss their rings?
Congressman Billybob
Certainly. I understand. This is absolutely great what you are doing. I'll post my little "historical contribution" soon. Could be a footnote,:)
Also, I had posted in haste, not noting Jim had already responded, which is fantastic. This is warp speed. Not that I believe we can neccessarily afford to move any slower than that.
Thanks for the response.
Well I hate to be the one to break the news, but here's what's on the blogs.I checked earlier today to see if this was posted at FR but it did'nt pop up.
Linked on Instapundit http://www.instapundit.com/ (a very good source).To, http://www.redstate.org/story/2005/3/25/03024/6848
MIKE KREMPASKY finds an earlier draft of the FEC regulatory proposal for the Internet, and concludes that Brad Smith is owed an apology.
New FEC document released: what do they really think?
By: krempasky · Section: FEC
Update [2005-3-25 12:56:51 by krempasky]: - an important clarification - this post does NOT address the proposed rules voted on yesterday by the FEC (which signals the beginning of the public comment period. This post refers to a previously unreleased early draft of those rules - and they are horrible. It's educational to see where the FEC *started* in this process - but I repeat, these are NOT the rules released yesterday.
First let me say that I believe the Notice of Proposed Rulemaking governing activity on the internet released yesterday by the Federal Election Commission should provide little or no comfort to bloggers and online activists. As I was quoted in this CNet article, I believe it creates a “regulatory minefield” for bloggers.
Putting that aside for a moment, an earlier, previously unreleased FEC document raises VERY troubling questions about the manner and approach that the Commission (and the Commission’s staff) will take in fleshing out the final rules. CNet’s take on the earlier version is summed up here, with the headline, “Bloggers narrowly dodge federal crackdown.” Indeed.
To step back a moment, remember – on March 3rd, Commissioner Bradley Smith warned of some real potential problems with the upcoming rulemaking process. In return for ringing the alarm bell, he was dismissed as a crank, a partisan, an ideologue – and most of all, just plain wrong. The FEC would NEVER do something like regulate bloggers – heavens no! It’s inconceivable.
Well, I don’t think that word means what they think it means.
And now, we can prove that 1) Smith was right, and then some, 2) Had Smith not rung that bell, we may well have regretted it, 3) those on the FEC that criticized smith and told bloggers, in effect, to “chill out” weren’t being honest with us and 4) the FEC should be viewed with the highest suspicion throughout this regulatory process.
As late as yesterday, FEC Commissioner Ellen Weintraub said at the public hearing, “I am not aware of anyone here who views this rulemaking as a vehicle for shutting down the right on any individual to use his electronic soapboax to voice his political views.” From reading this, one has to wonder if Mrs. Weintraub even read the first draft of the rule, as provided by the FEC General Counsel’s office – on March 10th, 2005.
RedState has received a copy of that draft (.pdf only) – the Commission’s first attempt to craft a rule. And I can say – not only was Brad Smith right about the possible problems – the first draft was worse than he predicted.
Just how bad that draft rule was ought to serve as a filter for bloggers through which every statement by the FEC is screened. No media exemption. No volunteer exception. No clarification on coordination. Just a heap of anti-speech, anti-freedom regulations. Read on…
Mar 25th, 2005: 12:57:40, Rated: 5.00/1
Remember, this rulemaking process is supposed to address what is, and what is not, a “public communication” and thus subject to the Bipartisan Campaign Reform Act. The rule released today, for all its faults – at least starts with the premise that the internet ought to be relatively free – and then imposes certain restrictions.
The FEC’s first draft, however, starts exactly backwards – with the presumption that the internet must be locked down tight, with only small outlets left open for some meager amount of private speech.
And we’re not forced to read very much into the 45-page rule till we find the principle guiding this bureaucratic effort to regulate the internet:
"Specifically, the definition of "public communication" in 11 CFR 100.26 would be amended to include certain Internet communications that are widely distributed or available to the general public. The proposed definition would specifically exclude Internet communications with a limited distribution, as well as communications on password-protected websites with restricted access, and internal communcations by corporations and labor organizations to their restricted classes and communications by membership organizations to their members." (Pg 7, line 7)
So, the original attempt to regulate started with the premise that everything was to be regulated except that with limited distribution or on password-protected sites. Now that’s pretty bold – but unfortunately, it’s only the beginning.
When discussing whether or not to require political disclaimers, the original draft read,
"However, websites and Internet communications by others [ed - not political committees] would need disclaimers only if they qualify as a "public communication," and either solicit contributions or contain express advocacy." (Pg 8, line 11)
Well – find me a political blog that wasn’t 1) open to the public and 2) expressly advocated for a candidate. I’ll show you a very poorly read blog.
Throughout the draft, you see a deep (and uninformed) suspicion about all the Terrible, Horrible, No Good, Very Bad things that might (and did, in the eyes of the authors) happen on the internet.
"In light of the Shays decision, the Commission is reconsidering which Internet communications would qualify as "public communication." The Commission recognizes that the growing role of the Internet in public political discourse, particularly its use by Federal candidates and campaign committees during the 2004 election cycle, may now justify a somewhat broader interpretation of "public communication" to include certain Internet communications that are widely-distributed or available to the general public that are the equivalent of advertising on broadcast, cabe, satellite, and in the print media." (Pg 10, line 5)
See? It’s so clear. Since federal candidates use the internet, this may justify a broader “interpretation…to include” (read: regulation) of communications that are publicly available.
Further, the FEC draft rule takes the position that the general exemption is bad – it should be removed, and replaced with very specific exceptions and protections with I think all will agree are meager at best.
"Accordingly, the Commission proposes to change the definition of "public communication" in 11 CFR 100.26 by removing the categorical exclusion for all Internet communications and by replacing it with carefully tailored exclusions for certain types of Internet communications that are distributed or made available to specific audiences that do not constitute the public at large." (Pg 14, line 17)
I wish I could say that was the end of the disaster which is this draft, but we’re only getting started. In attempting to rationalize a bizarre requirement that emails to more than 500 people ought to trigger some additional regulatory scheme, the authors stretch far out of cyberspace – to a phone bank, and use it as an excuse to regulate some more.
"Based on this Congressionally established threshold for two types of general public political advertising [ed - mass mailing and telephone banks], the Commission proposes to revise the definition of "public communication" in 11 CFR 100.26(a) to include any communication over the Internet by means of mail, text, or voice messages where the communication consists of more than 500 messages of an identical or substantively similar nature transmitted within any 30-day period." (Pg 16, line 3)
Mail, text, or voice messages? I’d say that would handily include 1) any set of daily digest emails from a Scoop-powered blog, 2) text? Seems to be anything, and 3) goodbye podcasting.
And if we haven’t been clear enough – the next two highlights are even more damning – because they get a whole lot closer and a whole lot more specific about the web.
"3. Websites
The proposed rules in new paragraph (a) of section 100.26 would establish a general rule that websites are a form of "public communication" because of their availability to the general public. 2 U.S.C. 431(22). However, proposed paragraph (b)(1) of this section would specifically exclude password-protected websites accessible by not more than 500 persons within any 30-day period. The limited availability of these websites distinguishes them from websites available to the general public." (Pg 18, line 19)
That’s their general operating principle in black and white. Available to the public? Bad, and must be regulated. Private, with no real impact – well, dear subjects, you’re free to do whatever you’d like in this little sandbox we’ve provided.
By the way, if password-protection wasn’t a high-enough standard for the FEC attorneys, they explain why they went even further,
"The limitation on accessiblity also distinguishes these websites from websites with unlimited access, but that require a user name and password for any person who registers with the site. These latter websites, including some online newspapers and other free or paid subscription services, are intended for the public generally and would be treated as a form of "public communication," just as Congress has treated more traditional subscription services, such as newspapers, magazines, and cable and satellite television, as a form of "public communication." (Pg 19, line 9)
Finally, just when you thought they couldn’t find any other way to crack down on bloggers (remember friends, we’re to “Chill out” because we have nothing to fear from the FEC), they prove you wrong.
”5. Internet advertisements and other forms of third-party content
The proposed definition of "public communication" would also include any third-party content placed on another person's website, unless access to the third party content is password protected and available to only 500 or fewer viewers, or is a communication under 11 CFR 114.3 or 114.7(h) to the restricted class of a corporation or labor organization or to members of a membership organization. Such content could take the form, for example, of paid advertisements, such as banner advertisements or "pop-up" advertisements that appear on a website. Such content could also take the form of blogs that appear on a "host" site, whether or not a blogger pays a fee for the hosting service. Thus, under the proposed rule, a "public communication" would include both a publicly available website and any publicly available content on that website." (Pg 20, line 3)
I encourage you, read the draft rule yourself – but remember a few things:
This draft was written by the professional staff at the FEC - not, to my knowledge with the direction of any FEC commissioner. To the contrary, word is that Commissioners Weintraub and Toner deserve much credit for dragging this rule back from the brink of certain disaster.
At the same time – the FEC staff and general counsel are very, very important players in this process. Who drafts advisory opinions to clarify rules and answer questions? Who will play a major role in deciding who gets the media exemption in the current rules? (determined on a case-by-case basis, of course)
However, for Commissioners Thomas and Weintraub to repeat over and over again that the FEC didn't have any intention or wouldn't be entertaining any odious rules seem misleading, if not dishonest - considering, for instance, that when Chairman Thomas gave this speech at the IPDI conference on March 12th, he had received this very draft the day before.
Without the public outcry, what sort of rule would have been released yesterday? This heinous draft, mind you – is only two weeks old.
To everyone that either criticized Commissioner Smith as a partisan or questioned his character, I assume you’ll be lining up to apologize to him, thank him, or at least acknowledge that he was right. In fact, feel free to post those sentiments here at RedState, we’re happy to make sure he gets them.
And to everyone who looks at the rules currently under debate at the FEC, I strongly encourage you to keep a copy of this draft. Just refer to it everytime the Commission refers to “clarifying something later” or a “case by case basis.”
Full discussion: http://www.redstate.org/story/2005/3/25/03024/6848
Here is an excellent article about the mischief already done by McCain-Feingold, including to Wisconsin Right to Life
http://www.reason.com/rauch/100704.shtml
Fix the McCain-Feingold Law
Oops—Can I Say That?
Jonathan Rauch
Now it is official: The United States of America has a federal bureaucracy in charge of deciding who can say what about politicians during campaign season. We can argue, and people do, about whether this state of affairs is good or bad, better or worse than some alternative. What is inarguable is that America now has what amounts to a federal speech code, enforced with jail terms of up to five years.
An exaggeration? Judge for yourself. Consider the sorts of cases the Federal Election Commission now finds itself deciding:
Item—In June, the FEC ruled that the Bill of Rights Educational Foundation, an Arizona nonprofit corporation headed by a conservative activist named David Hardy, could not advertise Hardy's pro-gun documentary (The Rights of the People) on television and radio during the pre-election season. The FEC noted that the film featured federal candidates and thus qualified as "electioneering communication." Hardy, according to news accounts (I could not reach him by phone or e-mail), yanked the film until after the election.
Item—On September 9, the FEC ruled that a conservative group called Citizens United was not a "media organization" and therefore could not use unrestricted money to broadcast ads marketing a book and film critical of Democratic presidential candidate John Kerry. "Not everyone can be a media organization," said one FEC commissioner.
Item—Also on September 9, the FEC ruled that the Ripon Society, a Republican group, could run TV ads touting the anti-terrorism efforts of "Republicans in Congress" because no political candidate was referred to in the ads.
Item—That day, the FEC also ruled that a Wisconsin car dealership, called the Russ Darrow Group, could continue using its own name in its car ads during the election season. Russ Darrow Jr., the patriarch of the company and father of its current president, was running for Senate in Wisconsin (he lost in the primary). The FEC found that the dealership's ads were not "electioneering" because they did not feature the candidate himself.
Set aside how you or I might have decided any of these cases. Focus on the fact that federal bureaucracies—the FEC and ultimately the federal courts—are now in the business of making such decisions. "That's where we've gotten to today," FEC Chairman Bradley Smith, a critic of the law, said in an interview. "Can a car dealership run ads?"
In July, Wisconsin Right to Life, an anti-abortion group, took to the airwaves with radio and TV ads urging Wisconsinites to "contact Senators [Russell] Feingold and [Herb] Kohl and tell them to oppose the filibuster" of conservative judicial nominations. Feingold, a Democrat, is up for re-election; Kohl, also a Democrat, is not. Aware that it was testing the boundaries of the law, the group fashioned ads that do not ask listeners to support or oppose either man, do not mention an election or a political party, and do not even mention the senators' positions on the judicial filibusters that were the subject of the ads—information, says Barbara Lyons, Wisconsin Right to Life's executive director, that the group would have provided but for fear of legal trouble.
"This is a grassroots lobbying campaign," says Lyons. But on August 15, the group was forced to take its ads off the air until Election Day. "It has changed our life dramatically," Lyons says. "We're doing no radio or television advertising—not in terms of candidate information. They've taken away our speech rights in just giving information on candidates, and now they're taking away our lobbying rights. Congress is in session, there are legitimate issues before the Congress, and the public has a right to know about them."
All of this, and more, is the result of the Bipartisan Campaign Reform Act, otherwise known as the McCain-Feingold law, which Congress passed in 2002 and the Supreme Court OK'ed in 2003. Critics of that law—I among them—feared three untoward consequences. First, the ban on parties' solicitation of unlimited donations (so-called soft money) might defund and so hobble the parties. Second, the resulting vacuum might be filled by private groups that are unaccountable to the voters. Third, the law could sharply curtail the ability of citizens groups and lobbying organizations to make their voices heard. Against those risks, BCRA promised the considerable benefit of shutting down the soft-money racket, whereby politicians and parties shake down groups and companies for big-dollar contributions.
In some respects, the law has bested its critics. The soft-money chase has abated. The parties, instead of going hungry, have found new sources of money. Unaccountable interest groups are indeed spending to influence the election, but they are supplementing rather than replacing the parties. Worries about free speech, however, have proved all too well founded. "We're heading into a new era," says Smith. "You get less protection talking about your congressman than for Internet pornography sites or burning a cross outside a church or topless dancing."
The law automatically regulates as "electioneering" any broadcast ad that refers to a specific federal candidate within 30 days of a primary or 60 days of a general election. Corporations must finance such ads with limited-dollar contributions—called "hard money," perhaps because raising it is so hard. As of August, for example, Wisconsin Right to Life had less than $14,000 in hard money, not enough for a broadcast lobbying campaign.
The rationale for the new restrictions is that corporate treasuries should not be spent to influence elections. But BCRA made a mistake. In debating the bill, Congress cynically and thoughtlessly approved an amendment, sponsored by the late Sen. Paul Wellstone, D-Minn., that defined "corporation" to include nonprofits.
In America, if you want to organize people to do something, you form a corporation. Most advocacy organizations and citizens groups are, of necessity, nonprofit corporations. "The law drew no distinctions between General Motors and the ACLU," says Joel Gora, a Brooklyn Law School professor who advises the American Civil Liberties Union. As a result, he says, "there are no ACLU ads challenging President Bush on civil liberties in the war on terror."
Astonishingly, the Supreme Court, which many in Congress had counted on to overturn the Wellstone amendment, instead ringingly ratified it. And so the law of the land now sharply circumscribes what is arguably the most important of all civil rights in a democracy: citizens groups' right to criticize politicians. "What the Supreme Court has done," says David O'Steen, the executive director of the National Right to Life Committee in Washington, "is make it possible for these guys to set limits on how and when they're criticized."
Apologists for the law argue that groups can still broadcast their ads outside of election season; they can still run print ads; they can raise "hard money" for their ads; they can simply avoid all references to political candidates. All true, and all irrelevant. For the government to justify abridging a core civil right by pointing to other activities that are still legal is, shall we say, Putinesque.
In a case now pending, Wisconsin Right to Life has asked the Supreme Court to exempt grassroots lobbying campaigns from the law's "electioneering" rules. The FEC retorts that abortion is an issue in the Wisconsin Senate race, and so Wisconsin Right to Life's ads "will have an electoral effect."
Of course, the FEC is correct. Educating voters influences them, which is the whole point. "Electioneering" is not distinguishable from other forms of political speech, even in principle. Unfortunately, from this correct premise the FEC draws the wrong conclusion, which is that the law should restrict any "corporate" (read: group-sponsored) speech that might influence an election. Where that rule leads is amusingly illustrated by the FEC's political advice to Wisconsin Right to Life: Instead of saying "Contact Senators Feingold and Kohl and tell them to oppose the filibuster," just urge Wisconsinites to "call the U.S. Senate at 202-224-3121 and tell them to stop the filibuster." Wow, that's a zinger.
Better idea: Repeal the Wellstone amendment. That would lift the gag on nonprofits, while leaving certain reporting and accounting requirements in place. Or go even further, and repeal the BCRA "electioneering communications" restrictions altogether, returning to the pre-2002 law that let all concerned advertise to their heart's content, provided that ads refrained from explicitly supporting or opposing a candidate. A bill sponsored in the Senate by Saxby Chambliss, R-Ga., and in the House by Roscoe Bartlett, R-Md., would do just that.
Either way, fix the law before 2006. One election with a speech code is more than enough.
© Copyright 2004 National Journal FPRIVATE "TYPE=PICT;ALT="
Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to REASON. This article was originally published by National Journal.
Thanks for the link.
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