Will McCain-Feingold Control Political Bloggers?

WASHINGTON — Online political activists want the Federal Election Commission (FEC) to stay cool when considering proposed rules that some fear will chill online political debate, particularly in the blogosphere.

The FEC agrees, but the courts do not.

Faced with a mandate from a federal court to extend some aspects of

campaign finance laws to include the Internet, the FEC finds itself in the awkward position of proposing rules it didn’t want to write in the first place.

“They really are, in fact, trying to do the right thing. They simply don’t

fully understand the Internet enough to do the right thing,” John Morris of

the Center for Democracy and Technology (CDT) said Thursday. “Most speech on

the Internet is part of the solution, not the problem. It’s a way to reduce

the influence of big money.”

The Bipartisan Campaign Reform Act (BCRA) of 2002, also known as

McCain-Feingold, established limits on how individuals working on political campaigns can pay print, radio and television outlets for political “public communications.”

The FEC exempted the Internet from any provisions of the BCRA, but the court

bounced those rules as too broad in interpretation. In March, the FEC issued a

proposed new set of rules to cover the Internet, stressing that they would have an “extremely limited impact” on blogs.

Currently, advertisements placed for a fee on another person’s Web site or blog are the only Internet activity considered under the rules as public communications and subject to FEC regulations.

The proposed regulations also fine-tune the FEC’s current disclaimer

requirements for certain political e-mail. The FEC requires

disclaimers if 500 substantially similar unsolicited e-mails are sent. The

FEC’s refinement defines unsolicited e-mail as that sent to lists purchased

from third parties.

According to the FEC, the new e-mail proposal is meant to ensure that the

regulations only cover spam and not communications to large groups of an

individual’s own personal contacts.

“The FEC is really not trying to do bad here, they’re trying to do good,”

Morris said. “We have a strong concern that their way of doing the right

thing is to add another 40 pages to the 500 pages of regulations that

already exist. That solution is really not so helpful to the millions of

individuals out there.”

Friday is the deadline for submitting public comments on the rules, and the FEC will meet at the end of June to consider its next step.

The Online Coalition, which includes online activists from both parties, wrote in the comments it already submitted to the FEC that much of the give-and-take on the rulemaking has centered on blogs.

“While not to minimize the important role that blogs

play, we urge that you should be careful that the rule you write … is not so

constricted that it lacks application to next year’s — or next decade’s —

communication technology.

“We strongly suggest that you not regulate based

on form — i.e. blogs, list servers, e-mail, podcasting, text messaging,

Voice over IP — but based on function,” the coalition added.

The CDT said in a draft proposal of its comments that the FEC should

adopt a “presumption against the regulation of election-related speech by

individuals on the Internet.”

The FEC, the CDT notes, should also avoid “prophylactic rules aimed at

hypothetical or potential harms that arise in the context of Internet

political speech of individuals.”

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