Sunday, March 26, 2006
FEC Rules on Internet and Speech
On Friday, 24March, the FEC issued proposed rules (pdf) , which the Washington Post reports on here :"The Federal Election Commission last night released proposed new rules that leave almost all Internet political activity unregulated except for the purchase of campaign ads on Web sites.
'My key goal in this rule-making has been to make sure that the commission establish clear rules to exempt individuals who engage in online politics from campaign finance laws,' said Chairman Michael E. Toner, a Republican.
'We tried to craft a regulation that would allow the maximum amount of freedom for people as possible,' said Commissioner Ellen L. Weintraub, a Democrat." ......
"In a two-page summary of the 90-page set of rules, Weintraub and Vice Chairman Robert D. Lenhard stressed that the proposals "explicitly exempt from regulation the Internet activities of unpaid individuals or groups of individuals" and "bloggers will not be regulated.""
While the article is positive, the reference to a 90 page (actually 96 but only about a dozen are rules) document raises my concern level. Smart lawyers should be able to find a litigation hook somewhere in that many pages of regulation; and the anti-speech campaign reformers have plenty of good lawyers. More importantly, the accepted existence of FEC rules establishes that internet political speech is now a regulated commodity and no longer a right.
However, quite a few well-respected and knowledgeable people are happy with the proposed rules. The consensus is that these rules are much better than H.R. 4900, although not as good as H.R. 1606 and that that may be good enough for now. Here are two opinions.
Mike Krempaski has been a co-leader of the bipartisan blogger campaign to keep internet speech free of the BCRA . His post at RedState blog gives the FCC two and a half cheers for thse rules. He provides links to other reviewers and notes his opinion that : "these regulations aren't bad for the blogosphere. They codify the media exemption, provide an exception from the ban on corporate participation for incorporated bloggers, and bloggers would not have to disclose payments from campaigns. (although, campaigns would be required to do so, which has been our position all along)
So kudos to the FEC - especially Commissioners Weintraub and Toner. The FEC's relatively light touch on the blogosphere is a positive result."
The biggest problem with the rules is simply the principle established - the internet is now to be subject to regulation. The FEC can change the rules - extend them - when it wants. "
"For those who have been following the action in Congress, the FEC's move largely undercuts any argument to be made for H.R. 4900. It does not undercut the argument for H.R. 1606, which would simply exempt much internet activity from the law. But I expect it will lead Congress to shelve the measure. As we don't know how it would ultimately have fared in either the House or the Senate, that may be a price worth paying for these FEC rules. And those of us who favor online freedom can take some succor from knowing that the "reform community" originally wanted quite a bit more regulation."
Well, I may have to settle for that "succor" and it may be the best we can realistically expect from the current Congress; but trading a "right" for a "permission" just sets you up to be "permitted" less later. I believe this is a very big issue, that many in Congress recognize and support free political speech on the internet, and that many others fear the voice of the people at election time.
I thank the FEC for doing the minimal rule making. But I still want a right not just a rule; so I will write again to my Congressman urging him to vote for H.R. 1606. Think about doing the same.
'My key goal in this rule-making has been to make sure that the commission establish clear rules to exempt individuals who engage in online politics from campaign finance laws,' said Chairman Michael E. Toner, a Republican.
'We tried to craft a regulation that would allow the maximum amount of freedom for people as possible,' said Commissioner Ellen L. Weintraub, a Democrat." ......
"In a two-page summary of the 90-page set of rules, Weintraub and Vice Chairman Robert D. Lenhard stressed that the proposals "explicitly exempt from regulation the Internet activities of unpaid individuals or groups of individuals" and "bloggers will not be regulated.""
While the article is positive, the reference to a 90 page (actually 96 but only about a dozen are rules) document raises my concern level. Smart lawyers should be able to find a litigation hook somewhere in that many pages of regulation; and the anti-speech campaign reformers have plenty of good lawyers. More importantly, the accepted existence of FEC rules establishes that internet political speech is now a regulated commodity and no longer a right.
However, quite a few well-respected and knowledgeable people are happy with the proposed rules. The consensus is that these rules are much better than H.R. 4900, although not as good as H.R. 1606 and that that may be good enough for now. Here are two opinions.
Mike Krempaski has been a co-leader of the bipartisan blogger campaign to keep internet speech free of the BCRA . His post at RedState blog gives the FCC two and a half cheers for thse rules. He provides links to other reviewers and notes his opinion that : "these regulations aren't bad for the blogosphere. They codify the media exemption, provide an exception from the ban on corporate participation for incorporated bloggers, and bloggers would not have to disclose payments from campaigns. (although, campaigns would be required to do so, which has been our position all along)
So kudos to the FEC - especially Commissioners Weintraub and Toner. The FEC's relatively light touch on the blogosphere is a positive result."
Bradley A Smith, the former FEC Chairman, credits the FEC with hitting a triple in a game where a home run is illegal. As he says here :"I continue to think that the FEC's original approach - simply excluding the net from most regulation - would be ideal, and in the three and a half years it has been in effect, it has yielded only positive consequences. But a Federal judge ripped that option from the FEC's playbook.
The biggest problem with the rules is simply the principle established - the internet is now to be subject to regulation. The FEC can change the rules - extend them - when it wants. "
"For those who have been following the action in Congress, the FEC's move largely undercuts any argument to be made for H.R. 4900. It does not undercut the argument for H.R. 1606, which would simply exempt much internet activity from the law. But I expect it will lead Congress to shelve the measure. As we don't know how it would ultimately have fared in either the House or the Senate, that may be a price worth paying for these FEC rules. And those of us who favor online freedom can take some succor from knowing that the "reform community" originally wanted quite a bit more regulation."
Well, I may have to settle for that "succor" and it may be the best we can realistically expect from the current Congress; but trading a "right" for a "permission" just sets you up to be "permitted" less later. I believe this is a very big issue, that many in Congress recognize and support free political speech on the internet, and that many others fear the voice of the people at election time.
I thank the FEC for doing the minimal rule making. But I still want a right not just a rule; so I will write again to my Congressman urging him to vote for H.R. 1606. Think about doing the same.
