Monday, Oct. 20, 2008
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RULES OF THE GAME
Changing Times Run Into Static Election Laws
As Obama And McCain Push Technological Boundaries, Limits In Existing Rules And Regulations Raise Questions About The Need For New Ones
By the time the final presidential debate ended on Oct. 15, both John McCain and Barack Obama had purchased Google ads that directed any Internet user who searched for "Joe the Plumber" to their respective campaign Web sites.
It was just the latest example of how innovative Internet tools have defined this election. From ads embedded in video games, to unprecedented online fundraising, to targeted Web messages that track users with secret "cookies," political uses of the Internet have exploded in 2008.
But as candidates and citizens alike have pushed boundaries, they have taxed the elasticity of existing election laws and campaign finance rules. Several recent Internet-related controversies have raised a host of policy and legal questions involving privacy, transparency and copyright issues.
Indeed, some observers argue that the system is due for an overhaul.
"I call this the 'square peg in round hole' problem," said Joseph M. Birkenstock, an election lawyer with Caplin & Drysdale. "Rules that were designed in the '70s to police a system in which mass communications always cost a lot of money are at odds with a communications system like the Internet, which doesn't cost much money."
Birkenstock represents a company called VoterVoter.com that's eagerly awaiting a Federal Election Commission ruling on whether it can launch a service that would sell homegrown Internet ads to radio and TV stations without running afoul of campaign finance laws. In an advisory opinion request earlier this year, VoterVoter.com had asked the FEC to explain which rules would restrict its activities.
The VoterVoter.com matter is being watched closely by SaysMe.tv, another new media startup that allows average citizens to create political ads and sell them for $10 to $15, in many cases, to run on cable TV. Lawyers for both groups say that an FEC draft response awaiting final approval proposes rules that would squelch the free speech of citizens who are enjoying a political platform for the first time thanks to new technologies.
"As a medium of communications, the Internet offers ways to make campaigns more accessible, more accountable, and reduce the impact of money in the political process," said Birkenstock. "All of those are good things. So the law should be arranged in a way to facilitate that, and not stand in the way of it."
The FEC's "most serious error" is its proposal that citizens who buy ads collectively should be treated as political action committees, complained SaysMe.tv counsel Bradley A. Smith in Oct. 7 comments [PDF] to the FEC. An election lawyer with Vorys, Sater, Seymour and Pease, Smith is also a former FEC commissioner and First Amendment advocate.
Under election laws, PACs face strict contribution limits and reporting requirements. Yet both the VoterVoter.com and SaysMe.tv business models provide for ads to be paid for and aired repeatedly by anyone, not just the person who created it. In this way, popular ads could air multiple times.
"The law prohibits certain types of coordination, but it very clearly does not prohibit citizens from coordinating with other citizens," Smith said in an interview.
Also at issue is whether certain campaign finance restrictions should kick in once an Internet ad is aired on TV. Previous FEC regulations have exempted political activity on the Internet from most campaign finance rules. The FEC is scheduled to issue a final advisory opinion at its next public meeting on Thursday.
In a separate legal controversy, the McCain campaign wrote [PDF] this month to YouTube to complain that some of its Internet ads and messages were being taken down. Because some of the McCain messages contained short TV clips, the news organizations that produced those clips had cited copyright violations. The McCain ads in question make "fair use" of the news clips under communications laws, stated the Oct. 13 letter, which also asked YouTube to "conduct a full legal review" of takedown requests.
A YouTube response letter notes that this would involve a subjective and "complex and fact-specific test" of what constitutes fair use. The problem lies not with YouTube, but with the news organizations filing complaints, said David Sohn, senior policy counsel with the Center for Democracy and Technology. The use of short news clips for politics or advocacy "points strongly in the direction" of fair use, he said.
The case points up the "complicated interaction" between copyright policy and political activity, noted Sohn. "Fair use is becoming more important to free expression by a broader group of people than ever before," he added.
Also raising questions is Internet fundraising. Obama has raised hundreds of thousands in low-dollar donations that, by law, need not be disclosed -- prompting GOP complaints and calls for greater transparency from watchdog organizations. The advent of low-dollar fundraising, in fact, suggests that campaign finance rules should start rewarding small donors instead of punishing large ones, some experts maintain.
"We have to completely redo our campaign finance regulatory system in the wake of the rise of the small donor," said Michael Cornfield, a media strategist and professor at George Washington University. As the Internet's political use expands on multiple fronts, such legal and regulatory questions will only pile up.