FEC Proposes Regulation for Internet Politicking

The rulemaking would refine current Commission disclaimer requirements for certain e-mail communications. Disclaimers now are mandatory when sending 500 substantially similar unsolicited e-mails. The proposed rule would clarify that requirement to apply to unsolicited e-mail sent to lists bought from 3rd parties, Comr. Ellen Weintraub said. The aim is to ensure the rule targets only spam and not communiques to large groups of an individual’s personal contacts. The eagerly awaited draft notice was released late Wed. (WID March 24 p2).

The notice exempts a wide array of Internet activity from regulation, clarifying that the media exemption: (1) Applies to the Web. (2) Exempts any online activity by unpaid individuals or volunteers in their own residences, on their own equipment or on publicly available equipment. (3) Specifies that the allowance for occasional, isolated and incidental use of corporate and labor union facilities includes use of the Internet and computer equipment. “It would be ironic indeed if, in the name of campaign finance reform, we were to squelch good old-fashioned grassroots political rabble-rousing in its new, inexpensive, online iteration,” Weintraub said.

Since bloggers shower millions with political news and analysis, the question is “squarely presented whether bloggers and blog sites are entitled to the same protection under the press exemption that traditional media enjoy,” Republican Vice Chmn. Michael Toner said. If so, do the protections exist whether bloggers act as individuals or through incorporated or unincorporated entities? “I am strongly inclined to answer all of these questions in the affirmative,” he said.

Weintraub, a Democrat, said she wasn’t aware of anyone at the Commission who views this rulemaking as a way to throttle a person’s right to use an “electronic soapbox to voice his political views… For people who worry about the influence of money on politics, the Internet can only be seen as a force for good, for the simple reason that it’s generally a very cheap form of communication.” Smith, a Republican, disputed that, saying some don’t view the Web’s political presence so rosily. Comr. David Mason, also a Republican, said some will attack the move as too restrictive: “We may even be sued again if we adopt these rules by people who say the Commission still didn’t get it right. I fear that once we start down this road, it will be much more difficult to limit where we proceed.”

Smith raised questions about issues not included in the proposal: (1) What would the Commission do if a website or blog were paid for by a 3rd party not a campaign, but a candidate was raising money for the site sponsor? Should that site be deemed under the politician’s control? (2) What if a blog is maintained by several individuals, one of whom takes payment for political activity? Does that make the blogging collective a political action committee? “This is the kind of issue that’s often hidden in here,” Smith said, inviting public comment.

Moments before the Commission approved the document, Mason suggested nixing a section on candidate-paid bloggers. His request failed; colleagues said the language should remain in the proposal since it’s the “best trigger” to spur blogger feedback. The proposal passed 5-1 with Smith dissenting. Comments will be due 60 days after publication in the Federal Register. A hearing is planned for June 28. The Commission hopes to have the final rules ready for consideration by its Sept. meeting, Democrat Chmn. Scott Thomas said. If approved, they would be on the books before the 2006 campaign cycle.

Popular blogger Glenn Reynolds believes the Commission is “trying to make the best of a really bad statute.” The Instapundit.com pundit told us the best solution would be to repeal the law because it was “written for an age when journalism was a profession, but now it’s an activity.” RedState.org’s Mike Krempasky said the Commission had managed to agree on a plan that might create as many problems as it aims to solve. He warned his readers not to believe Weintraub’s attempt to allay bloggers’ fears: “This draft rule… creates an unacceptable regulatory minefield for bloggers.” Media exceptions will be granted case by case, the commissioners said. But Krempasky -- who called the outcome of such a ruling “regulatory compliance hell” -- wondered how the govt. will decide who gets exemptions.

Contributors to the Democracy Project, a group blog, said the proposed rules look good for noncorporate sites. The project’s Brent Trantillo said the main wrinkle in the proposal concerns use of corporate facilities or property such as computers for blogging or other Internet activities that could constitute “public communication.” The proposal would let a company’s employees make “occasional, isolated or incidental use” of such facilities for individual volunteer activities. They would have to reimburse the corporation to the extent their efforts raised the corporation’s overhead or operating costs. Trantillo wondered what would happen if an employee engages in something more than incidental use: “Does this constitute a ‘public communication’ under the proposed rules? Will the corporation be fined or subject to criminal penalties for nondisclosure of such activity?”