The NewStandard ceased publishing on April 27, 2007.

Regulation Threat Alarms Political Bloggers

by Michelle Chen

The Internet has long been a gray area for campaign-finance regulation, but new efforts to regulate digital electioneering are riling the blogosphere.

Mar. 10, 2006 – The realm of electronic communication has given millions of Americans a cheap but sturdy pulpit from which to criticize, praise and debate just about anyone and everything. But as a boon for the campaigns of political candidates, weblogs and websites have raised concern among legislators and advocates for tighter campaign-finance rules.

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Recent federal initiatives to apply campaign-finance laws to online political discourse have generated criticism from activists seeking to protect the online "marketplace of ideas," as well as from reform groups wary that the web is becoming a platform for big-money digital electioneering.

Though current campaign-finance laws do not govern what individuals say about candidates on the Internet, the Federal Elections Commission (FEC) technically requires the disclosure of expenditures for activities that advocate for a candidate’s election. But the FEC has not finalized rules dealing with funds put toward websites, Internet ads and blogs. Some argue that online activity should escape most campaign-finance regulations because of the Internet’s unprecedented accessibility as an inexpensive, sprawling form of mass communication.

So far, bloggers and other Internet users have had free reign to use websites to spread messages about political candidates, without their efforts being targeted by campaign-finance regulators. During recent election cycles, many blogs have reached tens of thousands of potential voters, and some have even used their sites to fundraise on behalf of candidates.

Activists seeking to protect the online "marketplace of ideas" clash with reform groups wary that the web is becoming a platform for big-money digital electioneering.

Recognizing the uniqueness of the Internet as a political forum, policymakers are weighing proposals to clarify the scope of government oversight concerning Internet-based campaign spending.

The Online Freedom of Speech Act, introduced by Representative Jeb Hensarling (R-Texas) and slated to go before the House of Representatives next week, would essentially exempt the entire Internet from federal campaign-finance regulations.

The blanket exemption has alarmed public-interest groups fearing that websites, mass e-mail and blogs could become major vehicles for campaign spending the offline forms of which would be illegal.

The blogging community, however, has demanded a hands-off approach from government, viewing regulation as an encumbrance to robust political discourse.

Attempting to balance the cynicism of bloggers and the concerns of government watchdogs, the progressive think tank Center for Democracy and Technology (CDT) has devised compromise legislation that would set guidelines for bloggers engaged in campaign-related activities, clarify the overlap between blogs and traditional news media, and curtail expenditures on Internet political advertising. A bill that the group helped craft, the Internet Free Speech Protection Act, was introduced yesterday in the House by Representatives Tom Allen (D-Maine) and Charles Bass (R-New Hampshire).

The blogging community has demanded a hands-off approach from government, viewing regulation as an encumbrance to robust political discourse.

CDT Communications Director David McGuire told The NewStandard the main aim of his group’s proposal is to protect speech and avoid creating a "new, large loophole for state political parties and large established donors to make end-runs around campaign-finance law."

But Adam Bonin, a lawyer representing the prominent blogs Eschaton and, said that the efforts to construct a new regulatory system for the web are premature. "The inherent problem with any such proposal," Bonin told TNS, "is that it accepts as its underlying premise the notion that this realm should be regulated, and that's not something which has been proven necessary yet." Since fears of soft-money abuses center on speculation about future election cycles, he argued, the broadest possible exemptions should prevail for now.

Bonin noted that the key premise driving the campaign-finance rule proposals is the definition of blogs as a type of news media. That categorization would let bloggers produce content without the tight restrictions levied on campaign-related promotions.

"Making clear that Internet speakers engaging in news, commentary and editorial have the same protection from campaign-finance regulation as do those in print, TV and radio, no matter how partisan... will provide strong protection for the majority of today's online behavior," Bonin said.

Nonetheless, bloggers have often blended campaign advocacy into more conventional political coverage by soliciting donations and even coordinating grassroots support.

According to a recent surveys of Internet users conducted by the Pew Internet and American Life Project, a branch of a liberal research foundation, over two million Americans – or about 2 percent of all estimated Internet users – are blogging. The Project also found that in the 2004 election cycle, an estimated 75 million Americans discussed election-related issues or otherwise participated in the political process online.

Despite dissonance on how or whether to regulate, free-speech advocates generally want the electronic political landscape to remain as clear of regulatory footprints as possible.

Only recently has the issue of campaign-finance regulation crept onto the Web. In 2002, the FEC attempted to exempt all online communication from many federal campaign-finance rules. After a court struck that exemption down in 2004 as inconsistent with the agency’s regulatory mandate, the FEC proposed some regulations on expenditures for Internet advertising and for the promotion of candidates on the web.

The proposed rules would also exempt most activity on blogs from campaign-finance regulations, yet the rulemaking has also introduced the legal complexities of defining how reporting requirements apply to online political activity. Groups like the CDT fear that the bureaucratic tedium of complying with campaign-finance rules could hinder the freewheeling political dialogue that characterizes web-based media.

Both the CDT and the Hensarling proposals would build on the FEC’s attempt to give bloggers the autonomy that journalists enjoy. However, in contrast to Hensarling’s sweeping exemption for all Internet communication, the CDT-backed bill provides a more structured regulatory scheme, carving out specific types of online political communication for regulation, such as buying online ad space, certain blogs and websites dedicated to explicitly campaigning for candidates, and similar Internet messages disseminated by political committees.

Under the CDT proposal, FEC regulations would kick in once expenditures reach certain monetary ceilings. The proposed rules would allow an individual to spend up to $5,000 of his or her own funds to buy political ads on websites, or to launch a website dedicated to promoting a candidate or attacking opponents, without having to file a report with the FEC or attach a disclaimer revealing the individual’s identity. A group of friends could spend up to $10,000 to launch a online media campaign endorsing a candidate without having to register as a "political committee," as they would for comparable offline political activities.

Where individual bloggers fall in this regulatory structure would depend on how much, if any, of their content falls outside the scope of news or commentary.

Many bloggers have bucked at the prospect of any kind of government oversight, warning that this could open the floodgates to excessive interference in online speech.

Wisconsin-based blogger Michael Hampton favored the broad language of the Hensarling bill over the more targeted CDT proposal. Though his blog, Homeland Stupidity, runs on about $1,000 per year and would likely be untouched by reporting regulations for online electioneering, he views any attempt to regulate web-based political activity as a threat to bloggers’ ability to air their views freely.

A self-described libertarian whose blog "covers almost anything the government does which might be considered stupid," Hampton argued: "Attempts to regulate the speech of bloggers are tantamount to regulating the New York Times’ editorial and op-ed pages, and as such, should be vigorously opposed."

Lauren Gelman, associate director of Stanford University’s Center for Internet and Society, said that the anti-regulatory thorns surrounding the so-called Blogosphere may stem from its participatory nature, blending elements of mass media with freewheeling political conversation.

As regulators navigate online political forums, Gelman said, the challenge is to "pick out the people who are doing it for professional or organizational reasons, and let the individual... do the sort of pamphleteer-level organization that has traditionally been protected from campaign-finance reporting regulations."

The campaign-finance reform organization Democracy 21 has endorsed the CDT proposal. Democracy 21 President Fred Wertheimer told TNS that a major loophole in the Hensarling act would allow private individuals and state party committees to freely spend "soft-money" on website ads that fall under the legal category of "non-express" advocacy. Such ads, privately funded and free of strict official spending restrictions, support or attack candidates without explicitly recommending how to vote.

Wertheimer pointed out, for instance, that if the Internet is exempted from the existing restrictions on ad campaigns coordinated between candidates and wealthy funders, "a candidate could write the ad, design the ad campaign [and] turn the ad over to the third-party spender." That party could then plaster the ad across the Web without being subject to campaign-finance limits.

In another scenario, he said, a party that would be prohibited from spending soft money on a newspaper ad could use those same dollars to buy ad space on that paper’s website.

Despite dissonance among free-speech advocates on how or even whether to regulate campaign-related online communications, stakeholders generally want the electronic political landscape to remain as clear of regulatory footprints as possible.

Excessive regulation could even have a "chilling effect" on blogging, McGuire said, particularly since the appeal of the format flows from its decentralized structure. If blogging about an election leads to burdensome regulatory requirements, he said, "a lot of people aren’t going to get into it in the first place."

Matt Zimmerman, an attorney with the Internet free-speech organization the Electronic Frontier Foundation, noted that as with any other medium in which political expression and money overlap, in the online realm, "Having to calibrate that perfect point where free speech and federal oversight are perfectly balanced – that’s always going to be a problem."

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The NewStandard ceased publishing on April 27, 2007.

This News Article originally appeared in the March 10, 2006 edition of The NewStandard.
Michelle Chen is a staff journalist.

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