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Campaign Finance and the Internet: A Commentary on the Online Freedom of Speech Act

By Beth Wellington, Published on March 15, 2006
Beth Wellington is a Roanoke, Virginia based poet and journalist. She is a contributing editor to the New River Free Press, a book reviewer for the Roanoke Times and a member of the Southern Appalachian Writers Cooperative (SAWC) and the Appalachian Studies Association. From 1980 to 1997, she was the founding Executive Director of New River Community Sentencing, Inc. in Christiansburg, Virginia and its predecessor, New River Community Action's Community Sentencing Program. She contributes to both SourceWatch.org and Wikipedia.org. Beth's blog on culture and politics is The Writing Corner.

On March 15, The New York Times published The Internet Campaign Loophole, an editorial harshly criticizing H.R. 1606, "The Online Freedom of Speech Act."

"For all the avowals to put the brakes on ethical lapses, the House is showing its true colors with an attempt to turn the Internet into a free-flowing big-money trough for uncontrolled political spending. The measure would exempt political ads on the Internet from a reform law barring corporate and union donors from buying up grateful candidates with six- and seven-figure contributions."
According to RedState.com, later that day, the Republican House leadership adjourned without acting on the bill. The measure proposes to exempt the Internet from the "public communication" regulated by the Federal Election Commission (FEC).

RedState.com and DailyKos.com, prominent blogs representing the right and left respectively, had joined forces to fight all restriction on the Internet, first testifying before the Federal Elections Commission at its hearing on Internet regulation, and then writing a joint letter to members of Congress on November 5, 2005, urging them to support H.R. 1606.

Long-time bloggers have been debating the matter for ages. I stumbled across the uproar March 8, when I found the sudden announcement of mark-up of H.R. 1606 on the website of the House Administration Committee.

I say "stumbled", because actually I was checking the agenda for action on the voting machine reforms proposed by Rush Holt (D-NJ), which that Committee has refused to consider. I say "sudden" because it was not until March 7 that Committee chairman Vernon J. Ehlers, (R-MI), let the public know when he had scheduled the March 9 markup.

The bill originally had been introduced April 13, 2005 and held in Committee for almost a year without action. An attempt to bring it directly to the floor had failed last November 2. Those calling for the vote said they were supporting technology and freedom of speech.

March 9, the Committee, unanimously approved H.R. 1606 after the lone opposition, Ranking Member Juanita Millender-McDonald (D-CA) left, according to Townhall.com's Tim Chapman. Chairman Ehlers, in his opening statement, had said the bill "would allow bloggers and other online activists to express their views on the Internet without fear of running afoul of our campaign finance laws."

Frankly, as both a blogger and an activist, I had never harbored such fears. The Federal Election Commission had been scheduled to vote on new regulations governing political speech on the Internet on March 16, and according to the Committee's March 9 press release, its members "thought it important to approve H.R. 1606 before the FEC acts."

Rep. Candice S. Miller (R-MI) said, "Allowing the FEC to regulate the Internet has the potential of a chilling effect on bloggers and could choke the life from them." She added, "The Internet is a very exciting outlet for political discourse and we need to be careful that we do not stifle it."

A video of the mark-up session can be found on the Committee website: cha.house.gov. The FEC is now scheduled to act on March 26. Current documents on the rulemaking will be posted here when they become available. An audio clip of the March 16 discussion is here.

When the FEC met March 9 at the same time as the Committee on House Administration, one item on the agenda was a rulemaking petition asking that "at least some" union and corporate-financed "grassroots lobbying" be exempted from the definition of "electioneering communications." The petitioners were the ALF-CIO, the Alliance for Justice, the Chamber of Commerce, the National Education Association and OMB Watch.

Unlike the members of the Committee on House Administration or the various bills' patrons, the petitioners were able to come up with a specific definition of what activity should be allowed:

In 2002, the Bipartisan Campaign Reform Act (BCRA), commonly known as the McCain-Feingold bill, amended the Federal Campaign Finance Law, first enacted in 1971 to include the new term "federal election activity," with "public communication" defined in Section 431(22) as "a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising."

H.R. 1606 undoes the proposed rulemaking of the FEC in its attempts to comply with a 2002 court ruling. By way of background, the FEC initially exempted the Internet from its definition of "public communication." This led to Shays v. FEC, in which the two primary House sponsors of BCRA, Christopher Shays and Martin Meehan, sued in U.S. District Court in 2002 on grounds that the FEC's rules undermined the intention of the bill. In September 2004, the U.S. District Court for the District of Columbia decided in favor of the plaintiffs. The FEC published new proposed rules in April 2005 to conform to the Shays ruling. These had some limited regulation for Internet usage involving substantial sums of money while leaving "blogs," created and wholly maintained by individuals, free of restriction.

My gut reaction when I learned of H.R. 1606 was to distrust the bill as an attempt to undermine campaign finance reform. I trace my distrust to my encounter with the website of the Herald Group, LLC with its offers to help clients influence public policy. To this end it says, "The Internet provides unprecedented opportunities for organizations to disseminate their messages without traditional media filters. It also serves as an invaluable tool in recruiting and organizing third-party advocates and grassroots support."

Another firm promising similar techniques is Democracy Data & Communications, LLC. What these firms call "grassroots" organizing others call "astroturfing" -- in other words, artificial grassroots organizing.

Not all bloggers are individuals typing away on their own dime or writing as the online arm of newspapers and magazines. Not all online activists are as benign as Ehlers would portray them. Some bloggers and "activists" are political operatives and lobbyists paid what I assume is a substantial fee to conduct Internet strategies. It seemed to me that such strategies were applicable to election campaigns.

Forgive me if I'm cynical, but just the name itself on a House bill with a Republican sponsor was enough to raise suspicion. The current administration and its supporters have an Orwellian talent for naming legislation - for example, consider the "Clear Skies" initiative, and its critique by the Natural Resources Defense Fund, which termed the bill "Dirty Skies." Yet, this isn't even a partisan issue. The bill with such a huge loophole was co-sponsored last year by both Rick Boucher (D-VA) and John Conyers (D-MI), among others.

Despite all the fuss raised by DailyKos and especially by RedState, I have to wonder why the Internet should be totally exempt from regulation when it is used for political campaigns. Ironically, the internet is so vast and labyrinthine as to be hard to monitor. Meanwhile, stealth actions promoted by the aforementioned astroturfing lobbying firms and political operatives give the appearance of ordinary citizen participation. Why not allow the public to follow the money?

The Senate Committee on Homeland Security and Governmental Affairs sure thought this would be a good idea, when it marked up Senator McCain's (R-AR) "Lobbying Transparency and Accountability Act" on March 3. There are two versions, the one McCain introduced and the one reported by the Committee.

McCain's bill originally had no mention of grassroots lobbying, but the amendment added section 110, "Disclosure of Paid Efforts to Stimulate Grassroots lobbying", which amends Section 3 of United Statates Code Section 1602.

This may have been a result of the Committee's hearing on the bill on January 25, which also considered Senator Harry Reid's (D-NV) S. 2180, the "Honest Leadership and Open Government Act of 2006." (Reid's floor speech of March 6, can be found in the Congressional Record starting on page S. 1760.) Reid's bill 's section 204 required such disclosure. McCain's amended version limits expenditures to $25,000 per quarter, half of that allowed by Reid's measure.

I am not the only one advocating that freedom of speech for bloggers need not undermine campaign finance reform. When the House Committee held a hearing on September 22, 2005 on H.R. 1606, then FEC Chairman Scott E. Thomas outlined how to regulate "only Internet activity that raises the concerns underlying the core statutory provisions while leaving the vast majority of Internet activity, including blogging, uninhibited."

Thomas had started at the FEC as an intern during the Watergate era. He was known for his defense of the agency's mission. The new Chairman, Michael E. Toner, a Bush appointee and previous Republican campaign operative, spoke out against limiting the Internet in his statement at the FEC's hearings on its proposed rule held on June 28-29, 2005. "I continue to be highly skeptical that the McCain-Feingold law requires the Commission to regulate the Internet or alter its current regulations in any manner."

Thomas's replacement on the FEC, Robert E. Lenhard, was part of a legal team that challenged McCain-Feingold, according to a December 17, 2005 article in the Washington Post, "Bush Picks Controversial Nominees for FEC."

No matter what they say about McCain-Feingold, the Wall Street Journal's David Rogers in his March 14 article, "Congress Mulls Web's Role in Politics," summarized John McCain's depiction of H.R. 1606 as an "end run around the campaign-finance rules" he co-sponsored.

On February 28, five reform groups--Campaign Legal Center, Democracy 21, the League of Women Voters, Public Citizen and U.S. PIRG -- signed a joint letter to representatives saying, "The undersigned groups strongly urge you to oppose H.R.1606, introduced by Representative Jeb Hensarling (R-TX), which would open gaping soft money loopholes in the campaign finance laws by allowing members of Congress and political parties to use corrupting soft money to pay for Internet ads to support Members' campaigns."

On March 13, the League of Women Voters posted an action alert on its website, urging people to contact their representatives in the U.S. House by by phone and by email in opposition to H.R. 1606 and in support of H.R. 4900. The alert also allowed one to insert a zipcode and customize a draft email or printed letter using Capital Advantage's internet technology.

The alternative H.R. 4900, "Internet Free Speech Protection Act of 2006," introduced March 8 by Representatives Tom Allen (D-ME) and Charlie Bass (R-NH) and sent to the same Committee on House Administration, but not yet considered for mark-up, follows the outlines of the Center on Democracy and Technology's model legislation.

On March 16, after the temporary delay in considering H.R. 1606, the five reform groups published a news release endorsing H.R. 4900. "We believe H.R. 4900 will provide appropriate broad protections to the Internet community without opening gaping soft money loopholes in the campaign finance laws."Professor Rick Hasen of the Loyola Law School in Angeles Law School has a series of informative posts on the issue on his blog, Election Law.

The Election Law listserve has a contentious debate going. Attorney Joe Birkenstock agrees with me that the anti-regulation bloggers, who are receiving most of the attention in the press, are mistaken. On March 9, he wrote there that he is convinced that:

"1606 is not about protecting bloggers or making sure the law respects the newness and uniqueness of this new, unique medium - it's about legislating the express advocacy standard into place as broadly as possible going forward.

"To those 1606 supporters who hold less than an acidic level of hostility to anything that can be labeled 'campaign finance reform,' I repeat: this is a bill you will regret having helped pass."


Background information: You can find a summary of proposed rulemaking in the April 4, 2005 Federal Register. Materials relating to the public hearing can be found on the Commissions website. The November 2, 2005 discussion surrounding efforts to suspend the rules and bring H.R. 1606 to a vote can be found in the Congressional Record on pages H9478-9484.