Congress will be re-considering
H.R. 1606, the Online Freedom of Speech Act, next week. It is a good bill whose passage which we support, but it's only a start. The bill is not a comprehensive solution to the question of how political activity on the Internet should be treated under campaign finance laws, and hopefully, more protections can be added through existing proposals. Let me explain.
First, a recap: H.R. 1606 would affirm the FEC's original decision to exclude the Internet from the definition of "public communications" under campaign finance law, a step that would shield Internet activity from issues of soft money and illegal coordination and, more importantly from my vantage point, likely cause the FEC to abandon its neverending, muddled rulemaking process. Back in early November we lobbied for passage of HR 1606, while Cong. Shays and Meehan offered a poor substitute that insufficiently protected online activity. HR 1606 had bipartisan majority support, but needed two-thirds to pass under suspension rules. Now, it's back and can be passed by a simple majority. (Sen. Reid has introduced the same measure in the Senate.)
HR 1606 would reinstate the status quo which governed the 2003-04 cycle. It 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.
The problem with HR 1606 is not what it does, then, but what it doesn't do. Back on November 2, I flagged the long-term issues that needed addressing:
- how would you protect group websites from being characterized as political committees?
- how would you protect incorporated sites?
- will you allow internet sites to qualify for the press exemption? Under what circumstances?
- what about volunteer activity, and the "safe harbor" rules for computer use in the office?
- what about internet uses that aren't weblogs, like wikis or podcasting?
That third issue, whether sites like this qualify for the media exception
is still not resolved. Yet answering that question solves so much.
As I've written before:
True protection for bloggers, podcasters, wiki-ists and others, as we have argued, would best come from a robust expansion of the media exemption to the Internet, allowing for anyone who engages in "news, commentary and editorial" on the Internet to have the same freedom to do so without regulatory interference as do the New York Times, FoxNews, National Review and the Excellence in Broadcasting network. So long as vibrant netroots activity is protected, restrictions on "soft money" sources can be negotiated -- but since no such bill has been introduced in Congress yet, a blanket exemption (and then waiting to see if any problems do arise, since none did in 2004) is preferable to the FEC regulation which now will soon follow.
Rep. Brad Miller's bill, H.R. 4389, solves that issue, and its language (esp. Section 1) ought to be incorporated here.
But there may be something better. The Center for Democracy and Technology have offered a comprehensive bill that's worth of your study. Rather that just say "let's not regulate the Internet", they've come up with what I think is a thoughtful solution to this question: If we're going to try to fit the Internet within the current campaign finance structure, how can we do it right?
So after consulting with legislators, reform groups, free speech groups and yours truly, what have they proposed? Their bill:
- would only apply the anti-coordination/soft money rules to the activities of state/local parties, political committees, corporations, or individuals spending over $5000 to place ads online
- would grant the media exception to the Internet
- would remove FEC reporting requirements for Internet communications costing less than $5000
- would remove group activity from the political committee rules if less than $10,000 was spent
- would require the FEC come up with a plain language, clear statement of all the regulations applying to online activity.
CDT has prepared
this chart which compares the various legislative and FEC approaches.
We think the CDT proposal is an incredibly thoughtful plan that's worth considering, and believe it can gain majority support, including from a lot of Democrats. As it stands, it keeps the focus of campaign 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. If you agree, call your Congressperson and tell her to support HR 1606, but also an Internet media exception and the CDT proposal. This is a bipartisan mishmash area, so even if your Congressman's a Republican, she's worth calling and can be persuaded here.
The bottom line has always remained the same for us: gutting campaign finance reform or creating loopholes has never been the goal -- protecting netroots activity is. So while we'll take the "no regulation" of HR 1606 over "bad regulation" (which either the FEC or Shays/Meehan might enact), we'll take smart legislation that robustly protects citizen activity ahead of either option. Tell your Congressman you agree.