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March 24, 2005

Proposed FEC Rules

Thanks to William Teach, I learned the Democracy Project has a draft of the proposed FEC definition of "public communication" (full text here) as it relates to bloggers and the Internet. It's important to note that this is only a draft, intended to solicit public comment and feedback. Winfield Myers comments:

A preliminary reading of the document indicates that communication about candidates via blogs or emails will not be considered a "public communication," and so will not be considered an in-kind contribution to that candidate.

In short, follow the money. If there is no compensation involved, the FEC will not consider Internet activity to be an expenditure for a candidate. This will be true, the draft proposes, in this and other circumstances:

No expenditure results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services that he or she personally owns for the purpose of influencing any Federal election, whether or not the individual’s activities are known to or coordinated with any candidate, authorized committee or party committee.

Emphasis added is, of course, mine.

First let me address the substance of the document. Various commentators have already started picking apart the language of the draft, which is why drafts are put out for public comment - rarely do committees get this sort of thing right on the first go-round. Eugene Volokh identifies a potential problem area:

I'm typing this on a UCLA computer right now; I don't personally own it. (I think UCLA doesn't object to academics using their office computers for drafting election-related materials, but let's set that aside for now; I'm sure that many universities permit such activity.) The material is being posted on a PowerBlogs host, which I also don't personally own. If the Conspiracy were organized as a corporation — as are most newspapers and magazines — that owned the computers and let the bloggers use them, then I wouldn't be using a computer that I personally own, either. Likewise if I were to blog from an Internet cafe, or from a friend's house, or from an office at a school at which I'm visiting.

I hope the FEC doesn't really mean to limit the rule to people who do their own hosting, and who compose everything solely on computers that they themselves own. And perhaps in context the final proposed rule will make that clear. But as written, this particular paragraph offers little cause for rejoicing.

The Democracy Project notes:

Regarding his concerns, as to whether blogging is possible at a public university, such as UCLA, or an Internet cafe, proposed rule § 100.94(a)(1)(2) sweeps that away easily stating that:

No contribution results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services available at any public facility ...The term “public facility” within the meaning of this section shall include, but is not limited to, public libraries, public schools, community centers, and Internet cafes.

The problem of hosting is easily solved by a simple wording change, as I very much doubt personal ownership of blogging software can be viewed in any way to be a corruptive force in political campaigns.

Reactions from around the blogospere ranged from "Um..whatever..." to the usual regrettable bloggah triumphalism, accompanied by much flashing of blog-sign and cries of "Who's yer daddy now, Weintraub?"

In the Agora has as nice a summary as you're likely to find.

Pirate's Cove notes:

I still would like there to be a rule about canvassing for contributions included in the language, specifically, those who have direct donation boxes to candidates, PAC, 527's, and political parties to be included. This would wipe out half of the Left-o-sphere's reason to blog :)

The folks at Wizbang were in full guitar-smashing mode (well not really, but I couldn't resist the image):

Our efforts have been noticed, and it appears that our concerns have been addressed. In a 40+ page document it's likely that some part of the proposed rules will have unintended consequences that only sharp bloggers will catch. The document is a draft and input was solicited.

I completely agree with the second sentence but must take issue with the first. The substance of this draft is completely consistent with commissioner Weintraub's prior statement (which, as I recall, no one wanted to believe):

"I really see no appetite at the agency for regulating bloggers," Weintraub said. "I would be very, very surprised if that was the result."

She said the commission would likely focus on other issues, such as whether to subject expenditures on Internet ad campaigns to the agency's contribution rules. The FEC requires campaign supporters who spend money on political ads in coordination with a candidate to report those expenses to the government and subjects them to contribution limits -- but the rules apply only to offline ads.

"We regulate campaign finance. We don't regulate speech in the abstract. We only regulate when money is spent," she said. "One of the great things about the Internet is that it's really cheap, and if people are not spending money, then it's really none of our business. Most of the time when people are sitting at their home computers, blogging, e-mailing -- whatever they're doing -- there really isn't any money being spent."

I'm not seeing a change in direction as a result of a blogswarm. I see the commission continuing in the direction Weintraub and the 4 of 6 commissioners (5, if you count Brad Smith, who, let's be honest here, does not favor regulation of the Internet) appear to have favored all along. Which is not to say the alarm bells were a waste of time: public attention to lawmaking is never a bad idea. But facts are facts.

Kevin Murphy comments:

Public and educational computers are also exempted. Blogging from work outside an educational setting seems to be regulated, as do corporate blogs. One wonders where California Insider -- a blog hosted at a corporate newspaper's domain -- would fall under these rules.

Joe's Dartblog finds the basic intent "rather innocuous".

Spartac.us had what I considered to be a fine all-purpose rant on the general idiocy of regulating campaign finance.

AlphaPatriot says:

I didn't comment on the earlier blogosphere buzz about the FEC because I just didn't believe it. Apparently, I was right:
"I think that we're trying to use this document as some sort of broad hint that, at least at this stage, we don't plan to regulate the vast majority of what individuals do [online] and the vast majority of what bloggers do," said FEC Chairman Scott E. Thomas (D).

"It is designed to give people a pretty clear signal that the FEC never did have any intent to overregulate citizens who want to use Internet technology for communicating in the area of politics," he added.

Call me a cynic, but now comes the hard part. The part no one ever wants to do: following through. Everyone loves a good brawl. Yell "Your First Amendment rights are being threatened!" and bloggers appear like a swarm of demented whack-a-moles.

Put a 40-page draft of proposed FEC regulations out for review and commentary, and suddenly everyone remembers they had a pressing appointment with a cold six-pack of Negro Modelo and a nude video of Angelina Jolie.

UPDATE: Declan McCullagh offers the following summary of the FEC draft provisions:

• Political spam must be labeled, a relaxation of a current regulation that requires disclaimers when more than 500 bulk messages endorse or attack a political candidate. Now only such e-mail sent to addresses purchased "through a commercial transaction" must sport disclaimers.

• Linking to a campaign's Web site will not be counted as an "expenditure" that could trigger campaign finance law unless money changes hands. Also exempt are "distributing banner messages" and "blogging."

• Someone simply running their own Web site from their own computer or hosted on a service like Blogger.com does "not make a contribution or expenditure" that must be reported as a campaign contribution.

• Forwarding e-mail from a political candidate "would not constitute republication of campaign materials," which could have triggered another complex section of campaign finance law.

McCullagh adds:

In one area, the FEC seems unsure about how to proceed and asks for input from Internet users. The agency notes that online-only news sites such as Salon.com, Slate.com and DrudgeReport.com have no print equivalent. But, the FEC asks, should individual bloggers qualify? What if a blogger receives payment from a political campaign? And "should bloggers' activity be considered commentary or editorializing, or news story activity?"

Posted by Cassandra at March 24, 2005 05:42 AM

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You've been peaking at my appointment book again, haven't you?

Posted by: spd rdr at March 24, 2005 07:46 AM

[struggling for a witty riposte and failing miserably...]

You know I really can't stand it when my readers are funnier than I am. Knock it off, counselor :)

Posted by: Cassandra at March 24, 2005 08:02 AM

Excellent post, especially the last line (topped only by the first comment!).

I have two or three points to add, though.:)

First, I view the "appetite" of the FEC at any given point in time to be immaterial. Prosecutions of this sort of offense are motivated almost entirely by political considerations, although not always partisan considerations (the prosecution might be brought by an ambitious U.S. Attorney merely looking to get his name in the paper). These things change, so you can't give an offensive law or regulation a pass just because the current gang will not enforce it under present political conditions.

Second, the ownership rules are asinine. I don't own the computer I blog on, for example, my company does. It would be ridiculous if free speech were to turn on ownership of title to the machine used to draft and upload the post.

Third, McCain-Feingold is showing all the signs of a failed attempt at regulation. The evidence for this is that you have to keep piling on new regulations to avoid leakage around the edges of the law. You see this same phenomenon on other failed regulatory schemes. For example, New York's rent control regulations are sustained only by extremely detailed and onorous collateral regulations -- as a result, lots of other landlord-tenant matters are regulated in New York to a degree not regulated elsewhere, all to prop up the artiface of rent control.

I will confess, if it isn't obvious, that I'm something of a First Amendment zealot.

Posted by: TigerHawk at March 24, 2005 08:55 AM

If only we protected the more important and obvious economic liberties from onerous regs like wage and rent control the way we protect the fringes of speech like slander and porn under free speech.

Posted by: KJ at March 24, 2005 09:23 AM

I will agree that M-F is one of the most defective pieces of legislation to come along in a long time. It will require a complete overhaul...perhaps before the next presidential cycle. But I would like to also point out to those in the b-sphere that are congratulating themselves that a forty-page draft of a regulation does not appear overnight. Indeed, it has been my experience dealing with both state and federal regulators (including the FEC) that such drafts require many months of concerted boondoggling to craft, with a whole lot of unsolicited input from "affected persons." So the recent cries of alarm most assuredly had no effect on what the FEC is offering for comment. And comments it will receive...numbering in the many thousands. Don't look for any quick changes.

And here's the truth of the matter spoken cleanly: "We regulate campaign finance. We don't regulate speech in the abstract. We only regulate when money is spent."

Posted by: spd rdr at March 24, 2005 09:39 AM

Oh c'mon spd... are you saying they weren't all sitting around in their PJs, chain-smoking until the wee hours last nite with a gallon of Dunkin' Donuts coffee, a cup full of Bic pens, and a box of lemon-filled donuts?

You're destroying all my cherished illusions about how agency law is made, but then they say you should never peek inside the sausage factory...

Posted by: Cassandra at March 24, 2005 10:07 AM

I worked on a porposed regulatory change regarding beer and "flavored malt beverages," (you know those horrible sweet drinks like Zima and Barcardi Silver)with the Alcohol Tax and Trade Bureau. Big time comments from just about everyone involved in the alcohol biz. It took, oh, about two and a half years to get a ruling from the ATTB. And when it finally was issued it surprised everyone. Somehow they took a lemon and a lime and turned it into an apple. The gub-a-ment works in mysterious ways.

Posted by: spd rdr at March 24, 2005 10:21 AM

"The gub-a-ment works in mysterious ways."

Objection. Assuming facts not in evidence. There is no evidence in this case that the gub-a-ment "works" at all, much less in mysterious ways.

Posted by: KJ at March 24, 2005 11:18 AM

...much less in mysterious ways. - KJ

Not true, the gub-a-ment is quite adept at finding mysterious ways of not working.

Posted by: Masked Menace© at March 24, 2005 11:25 AM

As bloggers and the "blogosphere" grow in geometrical fashion, and the best and brightest of that medium continue to embarrass the professional news media, don't be suprised at any outcomes.

A new interpretation is only a change in the make-up of certain congressional committees and few weird rulings from Federal Circuit courts away. Can you say the Ninth Circuit? I knew you could.

Until McCain-Feingold is repealed, dead, buried and with a stake driven into its heart, can politcal speech breath easy again.

Funny, Ashcroft was supposed to be the "oppresive" AG out to crush political freedom, but McCain-Feingold still has the potential to do more damage to free speech than many an incompetent AG.

Remember your history. It took years for the "Missouri Compromise" to unravel and light the fuse to the Civil War.

I'm afraid I'm with that Tiger-bird person on this one. I don't have that much faith in politicians of either party to give up power, excercise any principles, or in lawyers as a profession (present company excepted) to act in a fair and scrupulous manner.

The whole McCain-Feingold schtick appears to have been a subtle campaign foisted on us by the well-heeled liberal-left (see links elsewhere, like at the Reynolds-guy website. What's his name?). That Soros guy and his money is involved again. Suprise.

And if you listen to Air America for any length of time (agreeably difficult without blowing lunch), you won't underestimate just how malevolent some political operators are.

Posted by: Don Brouhaha at March 24, 2005 04:43 PM

My goodness, Cass, looks like you were up all night researching and writing. :)

Actually, despite the somewhat lighthearted nature of my comment about donations, on reflection, I personally like the idea, and, to me, it makes sense beyond pissing the left-o-sphere off.

Thanks for blogging all the info. It was fantastic.

Posted by: William Teach [TypeKey Profile Page] at March 24, 2005 07:14 PM

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