From CNET News.Com
In just a few months, he warns, bloggers and news organizations could risk
the wrath of the US federal government if they improperly link to a
campaign's Web site. Even forwarding a political candidate's press release
to a mailing list, depending on the details, could be punished by fines.
Bradley Smith should know. He's one of the six commissioners at the Federal
Election Commission, which is beginning the perilous process of extending a
controversial 2002 campaign finance law to the Internet.
In 2002, the FEC exempted the Internet by a 4-2 vote, but U.S. District
Judge Colleen Kollar-Kotelly last fall overturned that decision. The
commission's exclusion of Internet communications from the coordinated
communications regulation severely undermines the campaign finance
law's purposes, Kollar-Kotelly wrote.
Smith and the other two Republican commissioners wanted to appeal the
Internet-related sections. But because they couldn't get the three Democrats
to go along with them, what Smith describes as a "bizarre" regulatory
process now is under way.
CNET News.com spoke with Smith about the Bipartisan Campaign Reform Act of
2002, better known as the McCain-Feingold law, and its forthcoming extrusion
onto the Internet.
Q: What rules will apply to the Internet that did not before?
A: The commission has generally been hands-off on the Internet. We've said,
If you advertise on the Internet, that's an expenditure of money--much
like if you were advertising on television or the newspaper.
Do we give bloggers the press exemption? The real question is: Would a link
to a candidate's page be a problem? If someone sets up a home page and links
to their favorite politician, is that a contribution? This is a big deal, if
someone has already contributed the legal maximum, or if they're at the
disclosure threshold and additional expenditures have to be disclosed under
federal law.
How can the government place a value on a blog that praises some politician?
How do we measure that? Design fees, that sort of thing? The FEC did an
advisory opinion in the late 1990s that I don't think we'd hold to today,
saying that if you owned a computer, you'd have to calculate what percentage
of the computer cost and electricity went to political advocacy.
It seems absurd, but that's what the commission did. And that's the
direction Judge Kollar-Kotelly would have us move in. Line drawing is going
to be an inherently very difficult task. And then we'll be pushed to go
further. Why can this person do it, but not that person?
How about a hyperlink? Is it worth a penny, or a dollar, to a campaign?
I don't know. But I'll tell you this. One thing the commission has argued
over, debated, wrestled with, is how to value assistance to a campaign.
Corporations aren't allowed to donate to campaigns. Suppose a corporation
devotes 20 minutes of a secretary's time and $30 in postage to sending out
letters for an executive. As a result, the campaign raises $35,000. Do we
value the violation on the amount of corporate resources actually spent,
maybe $40, or the $35,000 actually raised? The commission has usually taken
the view that we value it by the amount raised. It's still going to be
difficult to value the link, but the value of the link will go up very
quickly.
How do you see this playing out?
There's sensitivity in the commission on this. But remember the commission's
decision to exempt the Internet only passed by a 4-2 vote. This time, we
couldn't muster enough votes to appeal the judge's decision. We appealed
parts of her decision, but there were only three votes to appeal the
Internet part (and we needed four). There seem to be at least three
commissioners who like this.
What would you like to see happen?
I'd like someone to say that unpaid activity over the Internet is not an
expenditure or contribution, or at least activity done by regular Internet
journals, to cover sites like CNET, Slate and Salon. Otherwise, it's very
likely that the Internet is going to be regulated, and the FEC and Congress
will be inundated with e-mails saying, "How dare you do this!"
What happens next?
It's going to be a battle, and if nobody in Congress is willing to stand up
and say, "Keep your hands off of this, and we'll change the statute to make
it clear," then I think grassroots Internet activity is in danger. The
impact would affect e-mail lists, especially if there's any sense that
they're done in coordination with the campaign. If I forward something from
the campaign to my personal list of several hundred people, which is a great
grassroots activity, that's what we're talking about having to look at.
If Congress doesn't change the law, what kind of activities will the FEC
have to target?
We're talking about any decision by an individual to put a link (to a
political candidate) on their home page, set up a blog, send out mass
e-mails, any kind of activity that can be done on the Internet. Again,
blogging could also get us into issues about online journals and non-online
journals. Why should CNET get an exemption but not an informal blog? Why
should Salon or Slate get an exemption? Should Nytimes.com and
Opinionjournal.com get an exemption but not online sites, just because the
newspapers have a print edition as well?
Why wouldn't the news exemption cover bloggers and online media?
Because the statute refers to periodicals or broadcast, and it's not clear
the Internet is either of those. Second, because there's no standard for
being a blogger, anyone can claim to be one, and we're back to the
deregulated Internet that the judge objected to. Also I think some of my
colleagues on the commission would be uncomfortable with that kind of
blanket exemption.
This is an incredible thicket. If someone else doesn't take action, for
instance in Congress, we're running a real possibility of serious Internet
regulation. It's going to be bizarre.