A Briefing On Public Policy Issues Affecting Civil Liberties Online from The Center For Democracy and Technology
(1) CDT Urges Federal Regulators to Protect Individual Users' Online Political Speech
(2) FEC Holds Two-Day Hearing on Internet Political Speech
(3) Next Steps at FEC and in Congress
As the Federal Elections Commission (FEC) continues to wrestle with how best to bring campaign rules up to date with the realities of modern Internet communication, CDT and other public interest advocates are calling on policymakers to ensure that new rules and interpretations don't curtail individuals' personal political speech. In recent testimony, CDT urged the FEC to create a simple rule that would exempt individual online speech from the reach of campaign finance laws. As it stands, the FEC's complex rules for political speech threaten to blunt the effectiveness of the Internet as a tool for individual political discourse. The FEC must recognize the importance of protecting that vibrant and independent discourse. CDT urged the Commission not to fall back on the dense regulatory language typical to federal rulemaking and instead to draft a short, easily understandable rule -- one that will clear the doubts of ordinary individuals who fear they may be running afoul of campaign laws.
To uphold the goals of federal election rules without upsetting the rights of individual speakers, CDT recommended that the FEC focus campaign finance regulation not on individuals but instead on candidates, political parties and other core targets of the campaign finance laws. In early June, CDT submitted a Joint Statement of Principles intended to guide the FEC (and ultimately Congress) in any effort to apply campaign finance laws to individual online speech. A diverse range of groups, including the American Civil Liberties Union, the Electronic Frontier Foundation, the National Taxpayers Union, and People for the American Way, as well as more than a thousand bloggers and other individuals from across the political spectrum, agreed to the joint statement. CDT also filed its own detailed comments addressing specific details of the proposals before the FEC.
The Joint Statement of Principles is available at http://www.cdt.org/speech/political/20050603cdt-ipdu.pdf.
CDT's Comments to the FEC are available at http://www.cdt.org/speech/political/20050603cdtcomments.pdf
In March 2005, the FEC officially proposed extending some campaign finance rules to the Internet. The move came in response to a court order issued in September 2004 that overturned the FEC's prior rules, which had broadly exempted most online communications. More than 800 organizations and individuals submitted written comments on the March proposal and on June 28 and 29, the FEC held a hearing to discuss the proposed rules. Staff Counsel John Morris testified on behalf of CDT.
The FEC heard from 21 witnesses, all of whom agreed on the need for protecting individuals' online speech. What the witnesses did not agree on was how best to achieve that protection. Some witnesses, including CDT, proposed that the FEC should exempt individual advocacy, either by more clearly focusing its rules on candidates and political parties, or by creating a significant monetary threshold below which individual activity on the Internet would be exempt from all regulation. Other witnesses suggested expanding the so-called "media exemption" to cover all bloggers or possibly even all Internet communications. The commissioners themselves appeared divided as to how best to protect individual speech, and a number of commissioners expressed serious concern about whether the campaign finance statutes gave the FEC sufficient authority to craft an adequate exemption.
Although the commissioners still evinced a lack of clear understanding about how certain aspects of Internet communication work, the hearing indicated that the FEC is at least striving to understand the technical ramifications of its proposed rules. The commissioners seemed particularly concerned that if their regulations too heavily burden Internet communications, some bloggers and other Internet speakers could move their web sites overseas or post anonymously in order to escape the impact of FEC rules.
CDT's testimony at the FEC is available at http://www.cdt.org/testimony/20050628morris.pdf
The FEC's Notice of Proposed Rulemaking is available at http://www.fec.gov/pdf/nprm/internet_comm/notice_2005-10.pdf
At the end of the hearings, the FEC gave witnesses one week to supplement the record of the hearing with additional submissions, including submissions focused on the technical operations of the Internet. CDT filed supplemental comments to refute arguments that the Internet is no different from other forms of traditional media.
The Commission is likely to issue final rules sometime this summer.
Some lawmakers in Congress have proposed bills to exempt certain Internet communications from campaign finance laws, but it is unclear whether any of the proposals are likely to move. Ultimately, CDT believes that Congress may have to amend the campaign finance laws to make clear that the speech of ordinary Internet users is not covered.
CDT's supplemental comments to the FEC: http://www.cdt.org/speech/political/20050706fec.pdf