The heart of the Hensarling bill would exempt from the definition of public communication "any communication over the internet." The current definition reads:
The term 'public communication' means a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising. 2 U.S.C. 431(22)
Hensarling's bill would add at the end: "Such term shall not include communications over the internet." That is all, that is the heart and soul of the bill. I will admit, the term "communication over the internet" is a little vague, but the sky is not falling as a number of reform groups attempt to point out.
Fred Wertheimer (the most naive man in America), head of Democracy 21, the day before the bill was to be voted on, sent a letter to Congress:
We strongly urge you to vote against this legislation, which would open gaping soft money loopholes in the campaign finance laws.
A central problem with H.R. 1606 is that it would allow Members of Congress and other federal candidates to control the spending of unlimited corrupting soft money to buy ads on the Internet that support their campaigns.
This bill does no such thing. The change in the definition of public communiction does not lift the prohibition of the use of corporate or union money, that is soft money, for the support of candidates. Those sections of the law (section 441b) which prohibits contributions by national banks, corporations of unions is left untouched.
Allison Hayward commented in the National Review Online about the impact of the bill:
The bill itself was reasonable and modest in scope. It would have codified existing regulations — which are currently the law under which we labor — exempting the Internet from special rules that apply to "public communications."
... the bill would merely codify existing law. That’s right. The Internet exemption is the law of the land today, but none of these catastrophes have yet occurred. Why? Because such activity is illegal under long-standing prohibitions against corporate contributions and expenditures — laws to which the Internet remains subject.
In a recent federal court decision, Judge Colleen Kollar-Kotelly ruled that the current regulations exempting internet activity was void, not because they would, in Werthemier's words, "severly undermine the campaign finance laws," but rather, because the FEC did not adequately explain the reasons for the current exemption.
Prominent Election law attorney Bob Bauer, wrote on his blog:
The FEC noted that Congress had omitted the Internet from the types of media included within the definition of "public communications." This was taken to be a significant omission, because the Congress had made mention of the Internet, in other provisions, when it elected as a matter of policy to do so. The FEC made its own policy judgment, crafting a rule to protect the Internet as "a bastion of free political speech." As the FEC stated, it could not see the "threat of corruption that is present in a medium that allows almost limitless, inexpensive communication across the broadest possible cross-section of the American population." 67 Fed. Reg. at 49072 (July 29, 2002).
The court did not say that the FEC could not write this exemption, only that it did not satisfactorily explain its reasoning [as requried by the Administrative Procedures Act].
What is surprising to a number of people, despite the efforts of a large group of political bloggers from across the spectrum, is how little interest this issue is garnering. As Allison wrote in NRO piece:
Among the pundits who might respond there seems to be a fog of ennui on campaign-finance questions. It never fails to astound me how the same individuals who can master church-state law, Medicare, foreign affairs, and the death tax — sometimes in the same conversation — complain that campaign-finance issues are obscure, difficult, and . . . boring. Campaign-finance laws shape campaigns, and campaigns shape elections and our government. Government, perhaps unfortunately, shapes everything else. It makes a difference. We shouldn’t cede an important area of policy to those committed to greater restrictions and regulation. Especially where, as here, they can’t be trusted to make a straight argument.
Bruce Kestler echoes Allison's comments:
If conservatives want to spend most of their time echoing each other’s current reflections on the "great issues", and ignore the basic mechanics of democracy, then the time may come when they don’t even hear varying voices about the “great issues."
I couldn't agree more.
Fundamentally, campaigns are about ideas and the only way ideas can be learned, studied or debated is for ideas to be presented in the public forum. The advantages of the free press need to be guaranteed to those who work for themselves, who have taken it upon themselves to enter the political arena and add their voice to the debate. While bloggers of different political stripes may not agree on much, we can agree on the value of the debate.
Campaign finance laws have gotten complicated because those who value free speech most have ceded the playing field to the so-called reform community. If you blog, if you comment to blogs or if you just read blogs, there is nothing more important than preserving the freedom to continue to do so without the heavy, and clumsy, hand of regulation.
The current state of FEC regulation of the internet is in flux. A rulemaking is underway and active. On November 14, the Commission is likely to take up the Advisory Opinion for Fired Up!, which is seeking to have the press exemption granted to it. Follow these developments closely.
Even if the regulations are passed by the FEC, it is not the end of the road. Remember the Administrative Procedures Act, under that law, Congress has 30 days to prevent the enactment of regulations. We may need to do that. We, as a community, must not pass up any opportunity to kill these regulations.
Linked to Basil's Picnic Lunch; OTB Traffic Jam