1. Won't H.R. 1606 open up a massive loophole to soft money?
No. For starters, consider this: it already was open for the 2003-04 cycle, and awful things did not happen. H.R. 1606 merely repeats the same language which governed political activity on the Internet in 2003-04, only previously, it was done by FEC rulemaking and not by an Act of Congress. As I explained a long time ago, a court in D.C. ruled last fall that in face of Congressional silence regarding the Internet, it made more sense to force the FEC to pass rules governing the Internet, within the McCain-Feingold context, than leaving to leave it alone.
But for 2003-04, this blanket exemption governed, and the question is, why didn't soft money flow freely through a "loophole" that the reform lobby believed is so wide open, given all that was at stake in the 2004 elections? (If people are interested in exploring this further, I've got my hypotheses, and we can discuss below.)
Moreover, claims by those in the reform lobby (and their allies on the Hill) that H.R. 1606 would have allowed corporate money to flow to campaigns are fearmongering, not fact. Rep. Meehan -- whom I generally like -- is simply wrong when he claims that "Corporations and billionaires will be enabled to pay for Internet-related expenses of requesting candidates or requesting parties, and the public will not have a clue where this money comes from because virtually all they will see is the Internet advertising designed and created by candidates."
H.R. 1606 would have no effect on the general ban on corporate expenditures on federal elections -- 2 USC 441b takes effect upon the moment of the expenditure "in connection with any election", and it matters not where such money goes. Nor would H.R. 1606 have any effect on the general contribution and fundraising limits in place. None.
More, after the break.
No. Unlike some of the other supporters of H.R. 1606, we like most campaign finance regulation, and believe that there are sound ways to prevent accumulations of wealth from corrupting our politics. If a bill is presented which extends the soft money rules to the Internet, but also allows for robust protection of citizen activity on the Internet, we will support it.
H.R. 4914, the last-second Shays-Meehan alternative, is defiantly not such a bill. Three quick reasons:
- It does not protect online group activity from regulation. Basically, any group site that has > $1000 in server and other costs/expenditures over the course of the year, and which uses its site to occasionally discuss federal candidates, would have be classified as a political committee with formal filing and disclosure requirements.
- Its protection to corporations "whose principal purpose is operating a web log" is silent as to other already-existing and yet-to-exist forms of online activity. What about podcasters? Wikis? P2P networks?
- Most importantly, this "principal purpose" test would not protect incorporated entities like DailyKos.com, as the reformers see it. As they have explained in formal comments to the FEC and elsewhere, the same groups which drafted HR 4194 have argued that a site like this one or FiredUp has a principal purpose of "electing Democrats," not blogging, and therefore should not be protected from byzantine FEC regulations.
Here's the thing: after much delay, the FEC rulemaking will finish by the end of February. If Congress does not act, their rules will govern for 2006 (barring litigation from an interested party). And while I was very optimistic after our June hearings and the subsequent media statements by FEC commissioners, one of those Commissioners (Brad Smith) has since stepped down and three others will likely be replaced soon by McCain allies. It is in the face of that uncertainty and the time pressure that we support H.R. 1606 as the best option available -- politics is, after all, the art of the possible.
I have long believed that the best answer, instead of H.R. 1606, would be to expand the "media exemption" to cover the Internet as well. It is under consideration by the FEC, but Congress could do it as well.
Basically, the media exemption is the statutory protection which allows corporations like The New York Times Co. or Fox to operate media outlets without having everything they say which aids a candidate to be considered an illegal in-kind contribution to that campaign. It currently protects any "news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication . . . unless the facility is owned or controlled by any political party, political committee, or candidate," and expanding that list to "the Internet" would accomplish three goals:
- it would provide clear, unmistakeable protection
- it would cover individual, group and incorporated activity online
- it would cover all the forms of Internet political activity, and not require new regulations as each new format becomes popular.
Unlike every other medium which the FEC regulates, there is no mechanism by which entities can use wealth or organizational strength to crowd out or silence other speakers, thus negating a fundamental premise of many of the regulations proposed here. Democracy is being fulfilled here, and this experiment should not be disrupted without due cause.
We believe that two principles should guide the Commission: equality and clarity. By equality, we mean that individuals, PACs and candidates operating on the Internet should be treated no more harshly than they would be in any other medium. Indeed, the nature of the technology (low cost of entry, no scarcity of space due to unlimited bandwidth) is such that less regulation than other media will often be justified, but certainly never more.
By clarity, we insist that because of the low cost of entry and the ability of unsophisticated parties to easily enter the political sphere through the Internet, any regulations should make unmistakable any obligations or restrictions on ordinary citizen use of the media. These regulations should be invisible to the overwhelming number of amateur Internet bloggers and diarists, with impact only on those parties engaged in the kind of financial transactions such that they can reasonably be expected to be knowledgeable of the law. Even for those parties, these rules should be made clear in advance, so that there is no omnipresent worry about a citizen complaint being filed by partisans of the opposite side for acts not covered in these regulations.
We want to keep the focus of campagign finance laws on the sophisticated candidates, parties, PACs and other entities already cognizant of their legal obligations, and have the rest of us left alone. Anyone who can make that happen is my friend.