FEC to Look into Web Political Ad Restrictions

The U.S. Federal Election Commission on Wednesday began two days of hearings
to solicit opinions, in part, on how a controversial new campaign finance
law applies to political ads on the Web.

The hearings are aimed at seeking public comment on its proposed
implementation of the Bipartisan Campaign Reform Act of 2002, which was
signed by President Bush in March and will go into effect after the Nov. 5
elections. The law prohibits funding of certain forms of mass advertising
by companies or organizations that support or oppose a candidate immediately
prior to an election. Other organizations, including individuals, are
allowed to do so only if they disclose their spending to the FEC.

Earlier this month, the FEC proposed a draft of rules to spell out
precisely how the statute would be implemented. Specifically, the draft
places restrictions on paid television and radio political ads, as well as
television and radio broadcasts that are simultaneously streamed, or
downloadable online.

Regular online ads — e-mail, banners, buttons, skyscrapers and the
like — are exempted, because the FEC said it believes such forms of
advertising could be beyond the spirit of the legislation.

“The Internet is included in the … list of exceptions because, in most
instances, it is not a broadcast, cable, or satellite communication, and it
is not sufficiently akin to television and radio,” the FEC said in its
proposed rules. “During an early debate on the amendment, Senator [Olympia]
Snowe [R-MN] was asked whether the definition of electioneering
communication would ‘apply to the Internet.’ She replied, ‘No. Television
and radio.'”

But Snowe and other legislators who were involved in supporting the bill,
including Sens. John McCain (R-AZ) and Russell Feingold (D-WI), said, in
response to the FEC’s proposed rules, they oppose a blanket exemption for
the Internet.

“Internet communications, such as private e-mail communications or
conventional Web sites should clearly not be considered electioneering
communications,” the group said in comments filed shortly after the FEC
published its draft this month. “The Commission should leave open the
possibility, however, of including communications that are, or may be in the
future, the functional equivalent of radio and television broadcasts. A per
se exemption for communications using ‘the Internet’ from the definition of
electioneering communications is therefore not appropriate.”

In addition to seeking comment this week on whether to apply the law to
the Internet, the FEC also said it aimed to solicit opinions on how to apply
the rules to interactive TV, or Web-browsing via their television.

The hearing is also likely to delve further into the reasons behind the
exclusion of the Internet, print, and other media from the rule — an
exclusion that some have said is one reason why the law could be
unconstitutional.

In March, the American Civil Liberties Union, Sen. Mitch McConnell
(R-KY), Reps. Bob Bar (R-GA) and Mike Pence (R-IN) and others challenged the
Act’s constitutionality with a lawsuit. In the suit, the plaintiffs charge
that the law was invalid, in part, because it “arbitrarily” limited the
restricted media to forms of broadcast. As a result, the critics maintain
that the law violates the First Amendment and the equal protection portion
of the Fifth Amendment’s Due Process Clause.

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