January 6, 2000

Rosemary C. Smith
Acting Assistant General Counsel
Federal Election Commission
999 E Street, NW
Washington, DC 20463

Re: Notice of Inquiry, 1999-24

We welcome the Commission's examination of the application of the Federal Election Campaign Act (FECA) to the Internet.

The organizations submitting this comment, described in Attachment A, represent a wide range of interests and have different views on campaign reform and the constitutionality of FECA. [ 1 ] But we are united in our belief that the Internet is a unique communications medium whose very architecture and economics offer an opportunity to reinvigorate political discourse and improve the quality of the electoral process by providing a platform from which individuals can engage in political speech outside the control of candidates, political parties, and the traditional media gatekeepers. While many of our organizations do not participate in or comment upon federal election campaigns, many of our organizations use the Internet to communicate and organize on issues of public policy. We firmly believe that the democratizing potential of the Internet will be compromised if the Commission adopts a regulatory approach that seeks to apply to the Internet speech of individuals and organizations other than political parties and campaign committees the types of limitations imposed on the radio and television commercials of parties and campaigns. For these reasons, we welcome this inquiry.

We strongly urge the Commission to proceed cautiously because we believe that the onset of the 2000 elections does not afford the Commission sufficient time to deal comprehensively with the complex and constitutionally significant issue of campaign-related speech on the Internet. As the Supreme Court made clear in its landmark decision on Internet speech, [ 2 ] understanding the medium is critical to adopting an approach that will effectively achieve valid public policy goals in a manner consistent with the First Amendment.

Rather than compelling swift resolution of all issues, the impending election offers both a reason for caution and an opportunity for study. This election may represent a turning point in the use of the Internet, a medium that may eventually break the dominance of television. In the midst of such change and experimentation, the Commission should not seek to regulate comprehensively but rather should use this opportunity to study how individuals and those not associated with the political parties or the candidates use this new medium. Only thereafter can the Commission safely identify any areas where regulatory intervention may be appropriate and consistent with FECA and Constitutional guarantees.

The only Commission action that is desirable at this time is to make it clear that the Internet speech of most individuals will be considered to fall below the threshold for FECA regulation. A simple rule on valuation of computer-related expenses will suffice to remove much of the cloud over the Internet advocacy of individuals and open up the use of the Internet. At this time unregulated Internet speech by individuals appears far more likely to advance than hinder the goals of FECA. Imposing on Internet political speech the rules designed for radio and TV is most likely to stifle political speech by the very individuals and organizations that FECA is intended to empower.

For these reasons, we urge the Commission to:

I. The Internet Is a Unique Medium, Whose Architecture and Economics Inherently Support Abundant, Inexpensive and Diverse Speech

The Internet, by virtue of its unique characteristics, advances the goals of the campaign finance law. The architecture and economics of the Internet offer a unique opportunity to achieve the thriving marketplace of ideas central to FECA's vision of healthy elections. The Internet is distributed, abundant, and relatively inexpensive. Its architecture severs the link between money and effective speech, turning individual citizens into speakers, and enabling cheap message distribution.

A. Fundamental characteristics of the Internet distinguish it from other media

The architecture and economics of the Internet distinguish it from the expenditures on mass media that figured so prominently when FECA was enacted.

B. Assumptions about campaign speech that influenced the structure and application of campaign finance law are inconsistent with campaign speech on the Internet

Existing campaign finance law is based on several assumptions that reflect the nature of traditional mass media. Because the characteristics of traditional mass media have so deeply influenced interpretation of the campaign finance law, many traditional interpretations of FECA should not apply to the speech enabled by the Internet's vastly different architecture.

First and foremost, FECA assumes that speech is expensive and that therefore money inextricably determines the amount and impact of political speech. In contrast, the Internet greatly reduces the cost of speech. Because the initial startup costs of becoming a speaker are relatively low and, once the investment is made, the difference between communicating to a single individual and communicating to masses of individuals is incremental, the effect of money on message creation and dissemination is vastly diminished in the online environment.

In addition, the campaign finance law assumes that the content of political speech (at least the political speech that matters) will be controlled by a relatively small set of entities created to influence elections. The law has assumed that there is a distinction between speakers and listeners, that the speakers will be the candidates (and their committees and parties), and that most citizens will participate in the campaign process not by speaking but by contributing money. Under this traditional scenario, to the extent that individuals become involved in the political process as "volunteers," it has been assumed they will not be speaking, but rather will be disseminating material (mainly printed material) produced by the campaign. Consequently, the FECA exempts the value of services by "volunteers," on the assumption that volunteers will not be speakers. On the Internet, in contrast, anybody can be a speaker. A "volunteer" can create a Web site as good as the campaign webmaster's. A volunteer on a well-subscribed list or chatroom or a frequently visited newsgroup can reach thousands of potential voters.

There are other differences between the traditional mass media and the Internet, one having to do with the role of advertising. Television and radio work exclusively on the advertising model: advertisements pay for the content. By and large, on television and radio the content is not political in nature. Most content providers on radio and television are studiously apolitical in their programming. To the extent there is content regarding politics, it is in the form of news, which is exempt from FECA. By and large, on television and radio, the only way that political speech is broadcast outside of the news is in the form of very expensive paid political advertisements.

On the Internet, the distinctions between content, news and advertisement are very different. There is a great deal of political content not supported by any advertising. On the Internet, most political content is not in the form of paid advertisements; it is in the form of freestanding Web pages. On the Internet, there is no economic disincentive for political content. Today, on the Internet candidates do not spend large sums of money on paid political advertisements supporting the (sports, news and entertainment) content of others. To the extent that candidates "advertise" on the Internet, they do it the way everybody else does, with banner ads that seek to lure viewers to the freestanding content at the candidate's Web site. Rather than purchasing the opportunity to reach a practically guaranteed set of eyeballs or ears from a limited number of gatekeepers -- the model of print and broadcast ‚ Internet speakers must develop other strategies to attract users to their information. Today, a small portion of the traffic to a political Web site may be generated by banner ads, but the majority of the traffic to the site will be generated by unpaid hyperlinks provided at other Web sites, search engines, portals, and individuals.

While future changes to the architecture and economics of the Internet could change the cost of speech and limit the diversity of speakers, today, speech on the Internet is robust, diverse, and inexpensive.

C. The Internet is Used for Political Speech in Ways Quite Unlike the Regulated Advertising of the Traditional Media

In addition to broadening the number and diversity of speakers, the Internet creates opportunities for new forms of speech. Real-time dialogues can be hosted, creating a parallel to the town hall meeting without the time and expense. Conversations can be held outside of real-time, as postings on Web sites form "threaded" discussions on specific topics, which can be archived and returned to at any time. [ 5 ] From their virtual platforms, individuals and organizations are publishing newsletters, [ 6 ] voters' guides [ 7 ] and other election-related materials; creating dynamic forums that support issue-based organizing, interactive discussions, and political advocacy; [ 8 ] and registering voters. To the political buttons and bumper stickers common offline (the sporting of which is unregulated by the FEC), individuals can append to their email signature lines messages endorsing or opposing candidates, perhaps with a link to the candidate's Web site.

Ironically, many Web sites containing express advocacy, particularly those created by individuals, are rarely visited by the general public. [ 9 ] It is increasingly common for individuals to have Web sites that combine the personal and the political. [ 10 ] Called "home pages," these sites may contain photos of the family vacation, contact information for a personal business, and information about the individual's hobbies, opinions, and sensibilities. As the campaign season grows near, more and more of these sites will sport virtual "signs" endorsing or opposing one or more candidates. These sites are not at all similar to paid advertisements. They are clearly messages about elections and they may sway some voters, but the look and feel of such sites is far from that of a newspaper or television advertisement.

Web rings, a growing phenomenon, allow like-minded individuals to network their Web sites through the creation of a common logo and system for linking to and listing Web participants. Today, the Webrings Web site indicates an enormous list of rings dedicated to election-related activities. (See Attachment C.) Likewise, web services such as E-groups and E-circles host hundreds of politically oriented discussions. (See Attachment B.) While some may be "official organizations," the majority are likely to be independent of the campaigns.

Other Web sites function more as meeting places than billboards. While they post information supporting or criticizing a candidate, the sites' primary purpose is to provide a meeting place and forum for discussion for individuals interested in electing or defeating a specific candidate. [ 11 ] Such sites allow individuals to exchange information, organize, and discuss around a specific candidate or issue. The site may contain a mailing list, a method of posting information to the site itself, and other avenues of communication amongst interested visitors. The goal of such sites is to attract and organize like-minded individuals -- if the site's messages influence the general public, it is a side benefit. In general, these sites are used as a communication tool where "members" can share information and pool resources. Unlike the typical "home page," these sites are often a collective effort. In some instances, multiple individuals may alter the content displayed to visitors.

At this time, it is certain that the majority of political Web sites do not function like advertisements or other statements to the general public in traditional media.

On the Internet, no one is bombarded by unwanted political speech in the way that campaign ads can blanket the radio and TV. So Internet speech, while publicly available, should be treated differently. While interested individuals can find these sites through search engines --- the rough equivalent of telephone directories -- and reciprocal hyperlinks from other sympathetic sites, few, if any, of these sites use banner advertisements, unsolicited email messages, or other Internet advertising methods to place their message before the public. Unlike mass media where general public statements assault the public through the airwaves and television advertisements, Web sites are rarely thrust upon the public. Web sites survive because interested people seek them out, find the message worth consideration or adherence and pass the site's address (URL) along to others either through hyperlinks or email messages.

D. Characteristics of the Internet naturally promote cleaner, more informed elections without FEC intervention

The goals of campaign finance regulation would be best achieved by not regulating the individual, grass-roots campaign and election-related activity on the Internet:

II. The FEC Should Refrain from Comprehensive Rulemaking until after the 2000 Election Cycle

The architectural and economic traits of the Internet de-emphasize the importance of money. The resulting quantitative and qualitative changes in campaign speech demand a reassessment of the application of campaign finance law to this new medium. But a full exploration of this new communications platform requires a deliberative process supported by a broad, inclusive factual record. Whether the Commission eventually needs to undertake such an effort, now is not the appropriate time. If the Commission were to embark on a rulemaking on the heels of the NOI, it would raise the likelihood of rules being issued, at the earliest, late in the election year, requiring organizations and individuals to review and revamp their practices mid-stream, while at the same time being based on an inadequate and evolving factual record. At this time, moreover, there is little, if any evidence that the Internet is being used in a fashion that undermines the goals of FECA.

For these reasons, we urge the Commission to delay any rulemaking on the application of FECA to the Internet until the conclusion of the 2000 election. This is not a request that the Commission sit idly during the election cycle. The 2000 election cycle will provide the Commission and interested parties an unequaled opportunity to study the Internet and understand who is using it and toward what ends.

To ensure that relevant parties, particularly the newly empowered individual citizen speakers, have the opportunity to participate in any FEC process that will directly impact upon their participation in elections, the Commission should engage in additional outreach efforts. Publication in the Federal Register is not sufficient to reach individual citizens. [ 17 ] The Commission should use its Web site and other online opportunities [ 18 ] to reach out to citizens, small groups of individuals engaged in organizing, and new non-traditional publishers. Some of the organizations signing this document would be pleased to have an opportunity to present to the Commission a demonstration of the variety of election-related speech and activity on the Internet. With a broader understanding of how individuals, campaigns, organizations, political action committees and candidates used the Internet during the 2000 cycle, the Commission will be well-positioned to hold hearings and, if warranted, pursue a rulemaking at this time next year. If, despite our urging, the Commission feels it must proceed, we urge that any new rules become effective after the 2000 election cycle.

III. The Commission Should Create a Safe Harbor for Individuals and Make It Clear That, During the 2000 Election Cycle, It Will Proceed Cautiously With Respect To Corporations, Non-Profit Organizations and Other Entities Not Connected with Organized Parties, Candidates and PACs

A. Using the valuation rules, create a safe harbor for individuals

At this point, the only action the Commission should initiate should be to clear the way for independent activities by individuals, i.e. activities that are not coordinated with a campaign. The Internet is changing individuals' experience of, and participation in elections and politics broadly defined. The Internet is a platform for informal, unorganized, grassroots political discussions of a breadth and variety rarely witnessed in the offline world. Much of the debate and discussion of candidates and issues is removed from candidate Web sites and control -- conducted instead by individuals and groups. No longer are individuals merely the supporters of campaign activity -- contributing money to enable others to develop and disperse messages, volunteering time to carry out tasks decreed by others, spreading messages crafted and controlled by the campaigns. Fueled by the architecture and economics of the Internet, a growing number of individuals are seizing the opportunity to craft and express their own messages about issues and elections, unite with other individuals to influence elections, and publicly question, criticize and support candidates.

The individuals who are engaged in this "mass participatory speech" are generally unaware that their activities could be subject to FEC regulation. Like the individuals who place "vote for" signs in their front yards, individuals placing virtual "vote for" signs on their "home pages" are unlikely to be aware that this activity is anything other than the highest form of constitutionally protected speech. In most cases, we believe that their assumption is correct: FECA should not cover the activities of individuals and loosely organized groups of individuals engaged in election-related activities. The Commission's advisory opinions have cast a chill on this burgeoning form of individual participation. We believe that by inappropriately suggesting that it will assign costs to such Internet speech, the Commission has broadened the scope of FECA to speech that should not fall within its scope.

Accordingly, we urge the Commission to establish a per se rule that there is no requirement to register or report unless an individual has direct out of pocket expenses that exceed $250 for speech which advocates the election or defeat of a candidate. Direct costs would not include any allocation for expenses, such as equipment purchases, ISP fees etc, unless the costs were incurred principally to advance or oppose a candidate.

As discussed above, individuals can speak effectively on the Internet without enormous resources. The incremental cost to the individual of sending one email versus one thousand is near zero. Nor do individuals pay for the exposure of their Web site: whether a Web site is visited by ten individuals or one hundred, the cost of the message and the service is unlikely to change. Numerous "links" directing people to the site may appear at other Web sites free of charge, and frequently without the site creator's knowledge. In many cases, an individual's political message is within a larger communication that addresses multiple topics, further narrowing the cost, if any, of the particular campaign-related communication.

At this time, we believe the Commission should allow this experimentation in speech to continue unfettered. The potential to encourage individual participation in the electoral process far outweighs the potential for such speakers to distort outcomes, unduly influence officials, or undermine other goals of the campaign finance law. [ 19 ]

B. The Commission should take a cautious approach to online campaign-related activities during the 2000 election cycle by entities such as corporations, labor unions, educational entities, and non-profit entities, acting narrowly in response to advisory opinion requests and complaints and to redress clear violations of existing law.

Corporations, labor organizations, and other non-affiliated organizations are all using the Internet. Many of these organizations are familiar with their obligations under the campaign law and we are not suggesting that they be allowed to use the Internet to make an end run around the law. Nevertheless, the architecture and economics of the Internet present new difficulties to those tasked with compliance. How do you map onto the Internet a law that turns on the precise ability to capture and determine the cost of distributing a message? How do you appropriately value Internet activities?

During this election cycle, non-affiliated organizations should be allowed to use their best judgment, supplemented by Commission advisory opinions where they are sought. Enforcement actions risk chilling new experiments in issue advocacy and non-partisan activities on the Internet. In particular, the Commission should be wary of complaints that would, if sustained, have the effect of silencing such efforts. At this time, it would be wise to encourage experimentation, coupled with these organizations' best efforts to stay within the goals of FECA. By allowing this experimentation to continue, the Commission will ensure that any new rules take full account of the variety of this new medium.

IV. Conclusion

It is clear that the Internet is altering speech. The changes in who can speak, how broad an audience they can reach, and at what cost have implications for the application of campaign finance law to the Internet. Faced with this shifting environment and strong evidence that regulation may prove more hazardous than staying its hand, we strongly urge the Commission to proceed cautiously during the 2000 cycle. The Internet appears to offer a unique opportunity to engage and empower the public in the electoral process. By delaying comprehensive rulemaking while clearing a space for individual advocacy, proceeding cautiously as to the online activities of corporations, labor unions and non-profit entities, and acting narrowly in response to advisory opinion requests and complaints and to redress clear violations of existing law during the 2000 cycle, the Commission will afford itself, Congress, interested parties, and the public the opportunity to gather the information necessary to identify the best method of achieving the goals of campaign finance reform in this revolutionary communications medium.

Respectfully submitted,

Deirdre Mulligan, Staff Counsel
Center for Democracy and Technology

Elliot M. Mincberg, Vice President and General Counsel
Lawrence S. Ottinger, Senior Staff Attorney
Alma C. Henderson, Staff Attorney
People For the American Way

Barry Steinhardt, Associate Director
American Civil Liberties Union

Paul M. Weyrich, National Chairman
Coalitions for America

Lisa Dean, Vice President for Technology Policy
Free Congress Foundation

Michael Cornfield, Associate Research Professor, Project Research Director
David Anderson , Associate Research Professor
For the Democracy Online Project of the George Washington University's
Graduate School of Political Management

Tom DeWeese, President
The American Policy Center

Steven Clift, Board Chair
Minnesota E-Democracy

Kim Alexander
California Voter Foundation

Patricia Owens
Wisconsin State Sovereignty Coalition

Robbin Stewart, General Counsel
Libertarian Party of Indiana

John J. Adams, Member, Board of Directors Inc.(Zumbro Watershed Chapter)

Bobbie Patray, President
Tennessee Eagle Forum

David F. Salisbury
Sutherland Institute

Jonah Seiger, Principal
Shabbir Safdar, Principal
mindshare Internet Campaigns, LLC

Phil Noble, Member, Board of Directors

Robert K. Arena, Jr., Principal
Presage, Inc.

R.J. Tavel, J.D., Managing Partner,
Tavel & Stewart

Endnotes. Links will open in a new browser window.

1. Commenters have taken different positions on portions of FECA and other related issues. For example, the ACLU has argued that the limitation on the size of campaign contributions violates the free speech rights of campaign supporters. While People For the American Way ("People For") has not taken a specific position on the portions of FECA challenged by the ACLU, People For has argued that some limits on the amount of campaign contributions to candidates to achieve compelling government interests in the integrity of the democratic political process may be constitutional under the First Amendment and do not substantially infringe upon a contributor's ability to discuss candidates and issues. Along with other non-profit organizations, People For filed an amicus brief in Nixon v. Shrink Missouri Government PAC, No. 98-963, in support of the state of Missouri's limit of $1075 to candidates for statewide offices in this recently argued Supreme Court case.

2. Reno v. ACLU, 521 U.S. 844 (1997). The Supreme Court based its decision on the District Court's detailed findings of fact, which remain perhaps the best statement of the relevant chracteristics of the Internet for purposes of First Amendment analysis. The District Court opinion is online at The Supreme Courts's opinion is online at

3. 521 at 870, 886.

4. For example, two Web sites, run by professors in the United Kingdom, contain links to candidates in our upcoming presidential election. There are certainly other sites run by foreigners that contain express advocacy.

5. On January 3, 2000, a search of "," which provides a forum for threaded discussions by self-selected, dynamic, communities of interest, found: 728 messages containing the words "Bush" and "2000;" 643 messages containing the words "Gore" and "2000;" 524 messages containing the words "Bradley" and "2000;" 228 messages containing the words "McCain" and "2000;" 72 messages containing the words "Alan Keyes" and "2000;" 25 messages containing the words "Orrin Hatch" and "2000;" and, 260 messages containing the words "Forbes" and "2000." (See Attachment B.)

6. For example, the Web site Christian News Today offers "news" and "editorials" containing various discussions of candidates, but is generally issue-focused.

7. See Jeff Rushing's personal site, a "private citizen, voter guide on Republican candidates -- which one can defeat Gore or Bradley."

8. For a range of examples see: Veterans For Al Gore 2000. "Paid for by private citizen American veterans." Appears to be unaffiliated. States it is a collaborative effort, jointly funded by private citizens. Site states it is a nonpartisan effort to educate voters. States it is a not-for-profit, but also says donations are not tax-deductible. Provides information on candidates' positions on various issues. The Unofficial Bill Bradley for President Grassroots Network. Disclaimer stating names of creators and non-affiliation with campaign. Email lists established for all states on egroups. Bush 2000 Network. Grass roots effort begun by Patrick Ruffini, a writer and student at the University of Pennsylvania. Began before Bush announced his candidacy. States it is not affiliated with the campaign. Provides news on Bush, and states that Bush 2000 email lists are being established.

9. For example, many of the 3,411 member pages found at Tripod (a service that allows individuals to create homepages) containing the last name of a presidential candidate and "2000" are unlikely to receive a high number of visitors.

10. For example, these Web sites each combine express advocacy with other personal views and information: "Vinnie's Homepage." Contains, a rant about democrats and republicans and a "vote for Bush" line. "Duke's Political Ranting: All Republican, All the time." Vote for Bush message. Also contains an online poll and issue specific information. Is linked to his general home page containing a variety of information. Web site criticizing Bush and containing other information.

11. These sites are excellent examples of organizing Web sites:

12. The Democracy Online Census of Campaign Web sites (1998).

13. Oram, Jon, "Will the Real Candidate Please Stand Up?: Political Parody on the Internet," Journal of Intellectual Property Law, Spring 1998.

14. For example, typing in "Bush" one might find the famous Bush parody site,, A site containing random references to Bush within a larger debate about an issue such as , and the official Bush Web site.

15. For an example of a loosely organized effort by a group of individuals see: This site is run by a group of friends. The site states that it has no office, no staff, and no budget. The site states it is run by an "independent, nonpartisan political group," and says, "We do not support any candidate or party, and aim to attack all presidential candidates with brutal fairness."


17. During the comment period, the Center for Democracy and Technology provided an interactive site that enabled average citizens to easily file comments. This involved reformatting and simplifying the Commission's questions to highlight those of concern to individuals, placing the questions in context through the provision of examples and factors to consider, and creating simple forms to both respond and submit replies. See

18. The major portal Web sites such as Yahoo!, Lycos, and Excite; large Internet Service Providers such as Mindspring, Bell Atlantic, PSI Net, and AT&T Worldnet; and Online Service Providers such as America Online (AOL) and Prodigy provide excellent opportunities to reach out to individuals. The AOL feature "My Government" may provide a vehicle for reaching these new participants.

19. On January 1, 2000, we conducted a brief search for the candidates names and "2000" at several locations on the Web. See Attachment D.