CDT POLICY POST Volume 5, Number 24 October 5, 1999 A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE from THE CENTER FOR DEMOCRACY AND TECHNOLOGY CONTENTS: (1) Campaign Finance Rules Threaten Speech On The Internet: CDT Report (2) Mapping The Goals Of Campaign Finance Reform Onto The Internet (3) Calls For Reform; Action Upcoming In The Senate (4) Update Administration _______________________________________________________________________ (1) CAMPAIGN FINANCE RULES THREATEN SPEECH ON THE INTERNET: CDT REPORT The rapidly growing use of the Internet by ordinary citizens to express political opinions and participate in electoral activities - one of the medium's most promising aspects - is on a collision course with federal campaign finance law. The law regulating contributions to federal elections was designed for the centralized, scarce, expensive and gatekeeper-dominated media of radio, television and print. In contrast, the Internet is uniquely decentralized, abundant, inexpensive, interactive and user-controlled. The Internet supports a diversity and abundance of speech not possible in other media - much of it spontaneous and independent from campaign committees and the political parties. Many innovative efforts are underway to revitalize citizen involvement in the electoral process through the Internet. The Supreme Court has ruled that the unique qualities of the Internet entitle it to the highest free speech protection under the Constitution's First Amendment. However, initial efforts by the Federal Election Commission (FEC) to apply existing campaign finance law to Internet communications have yielded troubling results, threatening to burden - even silence - the voice of average citizens in American political life. CDT has examined the FEC's actions and recommends a fundamentally less restrictive approach in its recent report, "Square Pegs and Round Holes: Applying the Campaign Finance Law to the Internet - Risks to Free Expression and Democratic Values." _______________________________________________________________________ (2) MAPPING THE GOALS OF CAMPAIGN FINANCE REFORM ONTO THE INTERNET The federal campaign finance law, originally adopted in 1971, was aimed at decreasing the influence of money on elections. Campaign finance reformers talk about the corrupting influence of money and the resulting drop in the quality of electoral debate. The Internet, because it is inexpensive and user-controlled, could actually overcome these problems. But in trying to apply the accounting rules of campaign finance to the Internet, federal regulators have come up with some very constricting rules. So far, the Federal Election Commission has ruled that: * A private citizen who, with no support or encouragement, created a personal Web site advocating the election of a congressional candidate had to treat the Web site as a contribution to the campaign and had to count the value of his computer in determining whether he exceeded the $200 limit for filing contribution reports with the FEC. * A hyperlink to a candidate's Web site might constitute an illegal corporate contribution. * CompuServe could not provide candidates with free webspace, even though broadcast and cable TV could provide free airtime. Appraising these rulings, CDT's report concludes: "The blanket application to the Internet of campaign finance restrictions designed with other media in mind poses substantial risks to the burgeoning online political expression and activity. In the areas of greatest promise, campaign finance laws are the most restrictive and troubling. The concern is not that the large national parties or organized interests will suffer, but that the smaller organizations and individuals that the Internet promises to empower will instead be silenced, thereby discouraging grassroots efforts of the very type that campaign finance laws were intended to enable and encourage." CDT's report is online at: http://www.cdt.org/speech/political/financereport.shtml _______________________________________________________________________ (3) CALLS FOR REFORM; ACTION UPCOMING IN THE SENATE More recently, there has been a hint of change from the FEC, with bolder calls for more fundamental redefinition of the campaign finance law's application to the Internet. In particular, FEC Commissioners David Mason and Karl Sandstrom have each publicly called on the Commission to reconsider its role on the Internet. CDT's report urges the Commission to recognize that a large portion of the political activity in cyberspace does not merit regulation under the campaign finance law. The FEC is limited, however, in what it can do by existing law - the Commission cannot ignore or rewrite the campaign finance statute. Therefore, it will probably take Congressional action to protect political speech on the Internet. Pending campaign finance reform proposals, moreover, would exacerbate the problem by imposing even tighter restrictions on election-related speech in general. In the Senate, the leading campaign finance bill is S. 1593, sponsored by Sens. McCain (R-AZ) and Feingold (D-WI). CDT takes no position on the campaign finance issue per se or on S. 1593. However, when the bill comes up in the Senate, as early as the week of October 11, Sen. Mitch McConnell (R-KY), chairman of the Senate Rules Committee and a First Amendment advocate, will sponsor an amendment to protect peoples' right to the use Internet to express political views. Sen. McConnell's amendment will be criticized by proponents of campaign finance reform, and the overall fate of S. 1593 is uncertain, but the Senate debate will mark the opening of another front in the fight for Internet freedom. _______________________________________________________________________ (4) UPDATE ADMINISTRATION To subscribe to CDT's Policy Post list, send mail to majordomo@cdt.org In the BODY of the message type "subscribe policy-posts" without the quotes. To unsubscribe from CDT's Policy Post list, send mail to majordomo@cdt.org In the BODY of the message type "unsubscribe policy-posts" without the quotes. Detailed information about online civil liberties issues may be found at http://www.cdt.org/ This document may be redistributed freely in full or linked to http://www.cdt.org/publications/pp_5.24.shtml. Excerpts may be re-posted with prior permission of ari@cdt.org Policy Post 5.24 Copyright 1999 Center for Democracy and Technology