If you look at the current draft of the DISCLOSE Act, you'll notice something a bit odd on page 22. In discussing the types of media exempt from the bill's coordinated communications provisions, the draft provides:
(4) EXCEPTION.—The term ‘covered communication’ does not include—
(A) a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate;
Something seem missing to you? Because in 2006, as you may recall (it was kind of a big deal here), the Federal Election Commission amended its regulations with regards to what counts as media to include the following:
a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication ... unless the facility is owned or controlled by any political party, political committee, or candidate
You see the difference. You understand the concern.
Congressman Chris Van Hollen hosted a telephone conference for bloggers this afternoon on the DISCLOSE Act, and you'll be comforted to know that he assured me that it was not Congress' intent to monkey with the Internet, that they have every intention of leaving online activities as protected as they are now. Democracy 21's Fred Wertheimer, also on the call, conveyed the same reassurances, and in a later conversation promised that clarifying language could be added to the bill along these lines. [Essentially, as Wertheimer sees it, the issue is that while the FEC changed its media exemption language in the regulations, Congress never did in the legislation, so the question was whether to just carry forward that language or start revising things up top as well. But both Van Hollen and Wertheimer were committed to protecting online political activity.]
There's one more thing: listed before the Rules Committee as possible amendments to the DISCLOSE Act is a proposal from Rep. David Price (D-NC) to extend "stand by your ad" provisions to online audio/video, an issue he has raised before. That requirement doesn't apply now because the FEC only extended online regulations to messages one pays to place on another site -- i.e., "not YouTube," which was still embryonic at the time we were submitting comments to the FEC.
Well, sections (a) and (b) of Price's proposal seem to make sense -- when candidates or political committees do online videos, the same regulations would apply to them as apply for tv ads. And then there's section (c) ("Communications by Others") -- which if I'm reading it correctly ... could force any online video about a candidate for election made by anyone to comply with these nettlesome legal requirements. That, to put it mildly, would be really, really bad.
I asked Congressman Van Hollen about this, and his words were, essentially, if it messes with the Internet, it's not going to be in this bill. Let's hope.
added, June 17: Cong. Price's office contacted me today to clarify that their amendment would only extend Stand By Your Ad requirements to audio and video ads placed for a fee on another person’s website, such as videos placed on Hulu.com during a commercial break, or as a pop-up ad on the front page of a newspaper's website. As Price's press secretary put it, "His intent here is simply to ensure that an ad that runs on ABC is treated the same as an identical ad that runs on ABC.com, and we have worked with Legislative Counsel to ensure that the amendment is narrowly targeted so that it doesn’t affect bloggers who create content about candidates but don’t pay for that advocacy."