Net election stumping runs afoul of laws
By Will Rodger, USATODAY.com
Campaign regulations written before the Internet came of age threaten to silence
Web politicking in the crucial 2000 elections.
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| Scott E. Thomas, FEC chairman |
The Federal Election Commission took up the
problem Thursday, weighing a Bush Campaign request to clarify how past opinions apply to
the Internet now, but put off further consideration until Aug. 19. At issue are rules that
would force even small Web site hosts to identify themselves and adhere to strict spending
limits.
In a series of opinions handed down since 1996, the FEC has found:
Election Web site operators, even if they're just individual voters, must
identify themselves online, effectively gutting rights to anonymous political speech
enjoyed elsewhere.
Web sites operating independent of official campaigns must register with the FEC
if they spend $250 or more. Since that total includes at least part of the cost of a PC
used to build and maintain a site, software and the Internet connection used to keep the
site live, critics say almost anyone with a Web site could fall under that restriction.
Corporations, already banned from contributing directly to campaigns, may not
provide even neutral forums in which candidates can express their views. Officials say
that opinion follows a long standing "press exemption" under which members of
the media alone have had that right.
The FEC "is going overboard," says Barry Steinhardt, associate
director of the American Civil Liberties Union. "The FEC regulations are having a
chilling effect on the ability of people who are independent of political campaigns to
speak about political opinions."
FEC officials promise a comprehensive rulemaking to settle the issues
definitively. A final decision, however, won't arrive before the November 2000 elections,
the officials admit.
Sensing the conflict between what others expect and what the commission has
done, commissioner Lee Ann Elliott Thursday urged the commission to move quickly through a
multi-stage rulemaking process that, even if incomplete, yields information citizens can
act on.
"I'm very anxious for us to get the rules out because we're the ones who
are behind the curve," Elliott said. "Everyone else is using (the Internet) and
they can't tell from our regs whether they're doing it correctly or incorrectly."
Prompt or not, FEC Chair Scott E. Thomas defends his agency's actions.
"I have to be concerned that at a certain level a person can start
incurring enough expenses in trying to help a candidate that that will basically subsidize
that candidate," Thomas tells USATODAY.com. "From that perspective I have to be
worried that the potential quid pro quo that's generated by some person's effort will
cause the same kind of problems that any other contribution would."
Yet, in a move that may add more confusion than clarity, FEC staff attorneys are
recommending the agency give campaign volunteers carte blanche to ignore registration
requirements. At the same time, they counsel binding independent Web sites to all the old
restrictions.
Thomas notes advisory opinions don't necessarily carry the same weight as formal
rulemakings.
But as campaign-finance attorney Neil Reiff points out, candidates routinely
treat the opinions as law.
Mike Cornfield, professor of political science at the George Washington
University Graduate School of Political Management, says society needs some kind of
regulation to keep special interests from hiding behind individuals' names. But Cornfield
also wants clear rules to let individuals speak without worrying about laws designed to
restrain big money more than big mouths.
Anything less, he says, will dampen discourse while opening up unsuspecting Web
site operators to nuisance suits by rival campaigns.
"You shouldn't have to have a lawyer and an accountant to express yourself
on the Web," Cornfield says "That's one of the great things about the Web, that
the smallest group on it can look as professional as the largest one."
David Mason, a Republican FEC commissioner widely considered most sympathetic to
First Amendment concerns, says Cornfield is right in the abstract. "I think it's a
legitimate concern that citizens who are pursuing First Amendment activities might wrongly
become entangled in a government enforcement proceeding," he says. Even so, he adds,
"I don't think it's possible under any one scenario to simply say all Internet
activity simply escapes all regulation."
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| David Mason, FEC commissioner |
The commission has demonstrated that point amply:
Earlier this year, for instance, the Bush campaign went after 20-something
programmer Zack Exley after he erected an anti-Bush parody site at http://www.gwbush.com/. Although the FEC has yet to rule
on the Bush campaign’s complaint against Exley, campaign officials say his apparent
expenditure of $250 on the site means he should follow commission regulations and register
it with the FEC. (SEE SIDEBAR)
CompuServe Inc., too, felt the weight of campaign finance regulations when it
tried to give every federal candidate an e-mail address and a Web site for the 1996
elections. Since traditional media have long offered similar services, CompuServe
executives reasoned they could, too, even if they didn’t fit under the traditional
"press exemption" rules. Publisher or not, the FEC threw out their request,
saying it would have amounted to a contribution to every candidate who accepted. (SEE SIDEBAR)
And even though Connecticut entrepreneur Leo Smith argued he had a right to
remain anonymous when he put up a site supporting Charlotte Koskoff for Congress, the FEC
told him he was wrong last November. The commission also told him he had to obey the same
spending limits if he wanted to avoid registering with the FEC. (SEE SIDEBAR)
All sides agree that current campaign regulations prohibit online anonymity. And
commissioners say that's good, since they can't control corruption in a world where
speakers can't be identified.
But the ACLU's Steinhardt insists online anonymity is more than an academic
nicety. In some cases, protecting anonymity could literally be a life saver, sparing
supporters of unpopular candidates abuse by others, he says. And courts have upheld the
right of anonymous political speech even in mundane circumstances, in one case protecting
a group of pamphleteers who opposed a tax levy in Ohio.
"Nobody says if you put up a sign on your lawn you have to disclose your
identity," Steinhardt notes.
The way Mason and Thomas both tell it, the nation's campaign-finance laws won't
likely need much modification to address First Amendment Internet concerns. But small
modifications won't appease people like Steinhardt.
"The solution," he insists, "is not regulation of speech but
public funding of elections."
Related Links:
Net
parody exposes holes in election laws
Regs hinder
online campaign support
Feds block
CompuServe campaign help
