The Next Campaign Finance Brouhaha

The use of the web video announcement of the formation of a presidential bid is all the rage. While the use of the Internet video as a political tool is a relatively new development and so far it use has been primarily one used by campaigns, the web video has powerful potential to become not only a useful tool or deadly weapon, but it also has the power to shift the political debate from one controlled by candidates and major media to a debate if not controlled, certainly shaped by the Army of Davids. But like all new political technology, the web video may suffer the same fate as most political speech today, some "do-gooder" looking to "ensure the sanctity" of our elections will try to regulate the method, because right now, there are no rules on internet political videos.

What is most interesting about the web video is that it is largely free from the normal restrictions of political advertising. The video can be 30 seconds long or 30 minutes long. The video doesn't require expensive equipment to produce or airtime to disseminate. The web video is exempt from the normal FCC rule regarding langauge and content. Indeed, a good video will no doubt achieve the ultimate goal of a web video--"viral video" status, a video that gets shared around like a plague, going from posting to viewed by millions of people in 24 hours or less. In this article from the L.A. Times, Michael Finnegan discusses the viral video as an attack on candidates, often using their own words against them and the appeal to partisans:

The explosion of video-sharing on the Web poses major risks for presidential candidates: Gaffes and inconsistent statements witnessed by dozens can be e-mailed instantly to millions.

The White House ambitions of Republican George Allen of Virginia were dashed in no small part by a Web video that showed him, at a campaign event, calling an Indian American "macaca." Allen also lost his November bid for reelection to the Senate.

And Romney, a former Massachusetts governor, was hit this month with an anonymously posted YouTube video made of footage from a 1994 debate in which he took liberal stands on abortion and other matters. Romney, who has staked out more conservative positions in his quest for the Republican presidential nomination, posted his own video to explain the shift.

"I was wrong on some issues back then," he told viewers. "I'm not embarrassed to admit that."

For the candidates, as well as their detractors, the chief attribute of Web video is its broad reach, accomplished at little or no expense.

"You can grab it, send it, link it, and at zero cost," said Matthew Dowd, a top strategist for President Bush's 2004 reelection campaign. "Two hundred thousand people could see it in 24 hours."

While the viral video has the potential to debase the political debate into mudslinging and become ignored spam, its impact is already being felt and discussed. But what hasn't quite trickled into the discussion is the literal free-for-all nature, and true democratic nature, of the web video. The new technology fueled by YouTube and other video sharing sites can bring about some interesting effects in terms of campaign finance laws. While the videos present a difficulty for candidates, the campaign reform community is likely to erupt into full-fledged hissy-fit with this technology. The Swift Boat ads and others like them, were ultimately found to be working on the wrong side of the law, then these web videos are sure to drive the campaign finance reform committee nuts because they cannot be touched.

You see, these web videos are not regulated under campaign finance rules as an electioneering communication. For those who are uninitiated, electioneering communications are special communications or advertisements that:

1. refer to a clearly identifiable candidate, but not necessarily by name, a picture or description like "the Republican candidate for President" would be enough.
2. is publicly distributed 30 days before a primary or 60 days before the general election, and
3. is targeted to the relevant electorate

But public distribution means dessiniated by broadcast, cable or satellite TV or radio. In the Code of Federal regulations, communications by Internet are specifically exempted. See 11 C.F.R. 100.29(c)(1).

The upshot is that under FEC rules, electioneering communications have to be paid for with hard money, that is money subject to the source and limit rules on contributions. If web video is exempted as an electioneering communication, then it can be paid for with soft money, by anyone, without any disclosure. A literal Army of Davids could slice and dice a candidate and another could come along and put Humpty Dumpty back together again, all done in the democratic medium of Internet communications. A 527 orgnaization like the Swift Boat Veterans or Sierra Club or Moveon.org or Club for Growth could produce hundreds of these videos, pay for them in any manner they choose, including corproate funds, and run them at any time, leading right up to election day.

Last year, the FEC issued rules regarding Internet communications, but those rules only affected paid advertising on websites. What is possible with the electioneering communication rules, or rather the lack thereof, is that anyone with a camera and a website or a YouTube membership (which is free) can produce a video, post it to share with the world. By anyone, I mean literally anyone. If a corporation wants to create a web video attacking or supporting a candidate for federal office, it can produce one and post it on its corporate website. It can then email to literally anyone, using even a spam operator (because political communications are exempt from anti-spam laws), at little or no cost and do so at anytime leading up the election. the 30 or 60 day ban doesn't apply because by definition and web video and an email or a million, are not considered electioneering communications.

There would be no court battles (at least not yet) similar to those being decided by Supreme Court in the Wisconsin Right to Life case.

Websites like Daily Kos and Redstate.org and literally tens of thousands of smaller individual blogs, like this one, could prepare, post and distribute what is really an electioneering communication and have to disclose nothing. Such sites would not need to try to qualify for a press exemption, nor would they have to worry about the legal implications if a target doesn't like the content. The freedom of the Internet in this political world is for all intents and purposes unlimited.

Of course, there will be a push to regulate these ads once they become "too high profile" for the campaign finance reform community to stomach. Yet the very medium using the videos is also uniquely positioned to counter such a regulatory move. When the possibility of regulating blogs became real, the blogging community, regardless of their political affiliation, closed ranks and derailed the effort. I forsee a similar closing of the ranks and elevation of the importance of the Internet as a political tool.