Despite 2006 FEC Decision, Campaign Finance Leaves Room for Debate Online

Bloggers campaigning for or against candidates are protected “only through administrative grace,” said Reid Cox, the Center for Competitive Politics’ legal director. He would prefer legislation that explicitly protects the activity, rather than Federal Election Commission regulation. Offline, there’s a media exemption that allows traditional media outlets to offer endorsements. Otherwise, people buying ads must follow campaign finance law. The FEC extended the media exemption to the Internet and blogging in 2006, after a court ruling, but the commission regulated paid political ads on third-party sites (WID March 28/06 p1). As the Internet overtakes traditional media, Cox said, there will be a greater clamor to impose traditional media regulations on the Internet. This could mean that a site would have to comply with federal campaign law, 50 state laws and perhaps hundreds of local laws. Cox said a statutory provision should say that federal campaign finance law doesn’t apply to the Internet.

Blogging and e-mailing should be exempt, said Tara Malloy, associate legal counsel at the Campaign Legal Center, which joined with the plaintiffs in the lawsuit that forced the FEC to act. But she questioned the media exemption, because some Web sites “wear many hats” and include a mix of reporting, advocacy and explicit solicitations on behalf of candidates. The line should be drawn at solicitation, Malloy said. A disappointment in the FEC regulations was that they didn’t deal with coordination, so a corporation can buy banner and pop-up ads at a candidate’s request and not be regulated, she said. Those who want regulation don’t want to squelch the voices of the people, as is sometimes suggested by the anti-regulation crowd, but want to stand up for other values, Malloy said. The center wants to protect the integrity of the government -- by minimizing the possibility or appearance of corruption when a candidate receives large sums from one individual or group -- and to maximize the voice of regular people, by keeping restrictions on corporate and union money, she said. The center wants to regulate money, not speech, and in online politics, there’s very little money to regulate, she said. Start-up costs on the Internet, unlike older media, approach zero, she said.

Audience members wanted to know what should happen if someone on Twitter urges his followers to go to a link to donate money to a candidate, or if people post campaign videos they've copied from campaign sites. Panelists on opposite sides of the regulation debate agreed that someone posting a link for his Twitter followers to see shouldn’t be required to follow campaign finance rules. The only way the person would be regulated would be to be found acting as a political committee, Malloy said. It would be different if a group of people decided to raise money and to get on Twitter for that purpose, she said. Jonathan Zucker, formerly of ActBlue, a site that raises money for Democratic candidates at all levels across the country, said it shouldn’t make a difference whether the person tweeting is a union official. He said each situation comes down to money: Is the online situation more analogous to an individual standing on a soapbox exhorting passers-by to vote a certain way or to Coca-Cola buying an ad? But Cox wondered what the outcome would be if a lot of money went into creating the content before it was posted online. Do costs incurred before the negligible cost of posting online count, he asked. Others on the panel seemed to agree that, if individuals copy campaign videos created by the campaign and posted on the campaign site, those people wouldn’t be covered by regulations because the campaign would have reported the cost of producing the video.

Most of the discussion focused on independent political activity, which he believes shouldn’t be regulated, said former FEC Commissioner Hans von Spakovsky, a legal scholar at the Heritage Foundation. The original Supreme Court case in the matter allowed regulation because of the possibility a candidate would be corrupted by money, he said. Independent political activity doesn’t involve the candidate, so corruption doesn’t apply, he said. Zucker, however, said regulation is of disclosure and content, not speech. People should know who’s advocating ideas so they can better judge the idea, he said. Disclosure isn’t all good, Spakovsky said. “If you have to disclose, you are going to end up censoring speech,” he said. In California, some people who donated to campaigns about Proposition 8, which outlawed gay marriage, found themselves the objects of hate mail, violence and job loss because they had to disclose their addresses with their donations, he said.

Spakovsky called fragile the relative freedom of the Internet. The freedom, he said, “only lasts as long as there are four votes on the commission.” He pointed to Zucker’s former enterprise and said ActBlue received the FEC’s blessing 4-2. Even though ActBlue was innovative and there was nothing in the law that spoke directly to what it wanted to do, two commissioners decided that the regulations didn’t allow it, he said. If just one vote had changed, ActBlue wouldn’t have been, he said. -- Leslie Cantu

Conference Notebook…

Streaming information to Google, maintaining Facebook and Twitter presences and creating searchable databases of state campaign contributions are a few of the Web 2.0 changes highlighted by the secretaries of state of California, Debra Bowen, and Ohio, Jennifer Brunner. “We're going to move to a cloud computing system on election eight,” Bowen said. California maintains “an incredible amount of infrastructure” for use basically every two years, she said. Cloud computing should save the state money and free up resources, Bowen said. Bowen said she handles her Facebook and Twitter pages herself, sometimes to the consternation of her public- relations staff. “A lot of what I do on Facebook and Twitter is little civics lessons,” she said, like explaining why the ballot might have an issue voted on previously. In some cases, she routes people to her constituent services staff if she can’t answer the question in 140 characters, she said. Brunner said Ohio was one of a handful of states to take part in the Google voting information project last election. Secretaries of state streamed information about polling locations and voter information to Google so that individuals could go to Google and find out where they were registered to vote, Brunner said. The goal is to eventually allow the voter to answer any questions about what’s on the ballot or where to vote by going to Google, she said. The state isn’t outsourcing its responsibilities, she said. Anything streamed to Google is also available on the secretary of state’s Web site, she said.