As we alerted you last week, Congress is set to consider tomorrow Thursday HR 1606, the Online Freedom of Speech Act, as well as an alternative drafted by the Center for Democracy and Technology and supported by the pro-regulation community.

As we've stated before, we support HR 1606.  It has been through hearings and fully considered in Committee, as well as in an earlier floor debate, and it is ready to pass.  Its passage would be a strong signal to the FEC, which otherwise will be voting this Thursday on its regulations for the Internet -- which no one has seen yet.

Our problem with the CDT bill isn't so much what it does as what it accepts -- it accepts as its fundamental premise that citizen activity on the Internet ought to be regulated, and it's just a question of tinkering with the limits to afford optimal protection.  

We're not so sure yet.  Here's one problem: part of the CDT proposal regulates the use of state party websites, which can be financed with soft money, to promote federal candidates.  Well, take a look at the Arizona Republican Party website.  It's got a picture in the center attacking Jim Pederson, the Democratic nominee for the U.S. Senate.  Under the CDT proposal, the FEC's going to have to come up with a formula to determine how much that picture's worth as a percentage of the whole website, because that portion of the website (and other pages devoted to the U.S. Senate race) will have to be paid using only federal "hard" dollars.  How much is a link to John McCain's campaign site worth?  The FEC would have to figure that out.

It's a path that's best left avoided.  Once you start determining that links and jpegs have an in-kind value, then it's only a matter of time before such regulation starts creeping into this space as well.  How much is it "worth" for a federal candidate to post a diary here while a state party advertises on the site?  

We are not saying that the CDT Proposal is a bad one.  Adding the media exception to the Online Freedom of Speech Act would be a great idea, and can be done right now.  However, the proposal as a whole needs to be fully considered and studied in Committee to understand its implications before it can be voted on.

In the meantime, Roll Call has published two competing op-eds on the Online Freedom of Speech Act, and if you know how to use BugMeNot, you can enjoy them in full.

From FEC Chairman Michael Toner:

If enacted, the Hensarling bill would be a crucial first step in protecting and preserving the freedom of online politics in this country.

The Hensarling bill would codify the Federal Election Commission's current regulation, later struck down by a federal judge, exempting the Internet from the prohibitions and restrictions of the McCain-Feingold campaign finance law. . . .

Many prominent Members of Congress who voted for McCain-Feingold have endorsed this result. Senate Minority Leader Harry Reid (D-Nev.), the lead sponsor of a Senate companion bill to the Hensarling legislation, sent a letter to the FEC expressing "serious concerns" about the commission's Internet rulemaking that was initiated in response to the judge's decision. Reid noted that the Internet "has provided a new and exciting medium for political speech" and that "regulation of the Internet at this time, with its blogs and other novel features, would blunt its tremendous potential, discourage broad political involvement in our nation and diminish our representative democracy."

In addition, Sen. John Kerry (D-Mass.) and then-Sen. John Edwards (D.N.C.), both of whom voted for McCain-Feingold, filed written comments with the FEC during its rulemaking proceeding, stating categorically that "Congress did not intend to create new barriers to Internet use when it passed [McCain-Feingold]."

And from Leslie Harris and John Morris of the CDT:
Although we appreciate the intention behind the Hensarling bill, that bill simultaneously does too little and too much.

It does too little because it addresses only the narrow question raised by the Bipartisan Campaign Reform Act about the application of "public communications" rules to the Internet. At the same time, it completely ignores the regulation of the Internet that predated BCRA in the Federal Election Campaign Act. . . .

The Bass-Allen bill creates a broad "safe harbor" level of $5,000 in spending below which no regulations apply. Thus, bloggers and ordinary citizens who do not spend more than $5,000 a year on online political speech are exempted from campaign finance laws. Under H.R. 4900, all that a blogger or small online speaker would have to ask is: "Have I spent more than $5,000 this year?" If the answer is "no" -- as it will be for 99 percent of bloggers and individuals on the Internet -- then no campaign finance laws will apply.

In the view of the campaign finance reform community, the Hensarling bill also does too much. That bill would remove spending limitations imposed by BCRA on state political parties and corporations, permitting them to spend unlimited amounts of "soft money" on Internet advertising and other online advocacy. Because of the loopholes created by H.R. 1606, it is certain to face protracted opposition in the Senate from Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.), among others.

What are we hoping to avoid?  Take a look at what's going on in Wisconsin right now.  The first step to get out of that morass is to pass the Online Freedom of Speech Act tomorrow.  Call your Congressman -- whether D or R -- and make it happen.

Originally posted to Daily Kos on Tue Mar 14, 2006 at 07:18 AM PST.

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