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Connecting To The FEC And Campaign 2000
FEC Moves Show 2000 As A 'Year of Experimentation'
Events in the political Web world show that 2000 is the year of experimentation for election regulators. And for now, it seems that they are taking a stance much applauded by the high-tech industry — they are keeping their hands off the Web.
In a host of advisory opinions issued late in 1999 and public comments that continue to emphasize a wait-and-see attitude, Federal Election Commissioners are signaling they will do nothing more the rest of 2000 on political speech on the Internet. Rather, they have decided to review after the election is over and see if there were any abuses that the FEC needs to consider and set new rules for the future of political activity over the Internet.
"For now, they are taking the approach of letting a thousand flowers bloom," said Jim Dempsey, senior staff counsel at the Center for Democracy and Technology, which issued a report last fall, prior to the FEC's most recent rulings. Dempsey's report was highly critical of the FEC's stance on political speech on the Web at the time. The FEC's About-face
The FEC's current position is almost 180 degrees from where it was two years ago, when it issued several rulings that alarmed Internet political activists. In one ruling, it advised Leo Smith, an individual unaffiliated with any campaign who had set up his own Web site advocating the election of a candidate, to value the cost of his links and computer equipment and disclose them to the FEC as campaign contributions.
Potentially, the FEC's action in 1998 could have chilled activism on the Web because it would have required lots of red tape just to say anything on the Internet related to politics. In addition, it seemed to defy First Amendment rights set by the Supreme Court, which has ruled that individuals have the right to anonymously express their political interests.
At the time, the FEC was trying to apply an off-line regulatory model to the Internet. In the offline world, broadcast TV, radio and print control a big aspect of political communication. On the Web, the cost of political communication is almost nothing and virtually uncontrollable.
"We had been very concerned about the direction the FEC was going because it seemed the commission didn't understand how the Internet is different from the expensive, gatekeeper controlled, centralized broadcast, print and radio media," Dempsey said. "They had been trying to fit the Internet into a model of following the money and the Internet model is fundamentally different. It's less expensive and it is abundant."
What changed within the FEC, Dempsey and others say, was criticism from political activists and the leadership of Commissioners David Mason, R, and Karl Sandstrom, D. Both commissioners spent the past year going to high-tech forums, meeting with political activist lawyers and others in the high-tech community to educate themselves on the Internet.
By late fall of 1999, FEC Chairman Scott Thomas publicly admitted that the FEC had much to learn about the Internet and asked lawyers, consultants and activists to teach them about the Internet. At an Aspen Institute conference in October, Mason, Sandstrom and others sat down with political online consultants, educators, activists, lawyers and others to hash out how they might start re-examining Internet issues.
The FEC's Response
In November, Mason put out a broad list of questions, called a "notice of inquiry", inviting anyone to comment on issues such as whether a grass roots Web site should be considered a campaign contribution. And, if so, how should it be valued? Additionally, Mason asked if online publishers should be able to take advantage of the media exemption allowing traditional publishers to endorse candidates without facing campaign regulations, and if campaign endorsements should be allowed on corporate or labor Web sites. If so, is that a contribution? The FEC received about 1,000 replies to the inquiry, and FEC staff is assembling the responses. Eventually, it plans to issue a report on the replies, but that most likely won't happen until after this election.
As they sift through the responses, the ongoing issue that the FEC has to wrestle with is that political speakers prior to the Internet were largely parties, candidates, and well-organized groups, familiar with the federal election laws and FEC reporting obligations, according to Trevor Potter, a former commission member. Internet political speakers, by contrast, tend to include large numbers of individuals who are completely unaware that federal election law may reach their independent or volunteer activity. Internet speakers also increasingly include small newsletter publishers and news-based Web sites, and private non-profit entities or governmental agencies, all of which assume that their activities by their very nonpartisan nature should be exempt from FEC requirements, Potter wrote in a recent paper for the Brookings Institute.
Sandstrom, in an interview with National Journal's Technology Daily, recognized Potter's points and said he sees the Web is ever changing. He said that the dynamic nature of technology also makes it too difficult for the FEC to craft rules that will head off abuse before it happens. Rather, the FEC has decided to be as flexible as possible and handle issues case by case as the Internet develops before making decisions that could hinder the development of the Web as a tool for political activity.
"Part of the problem is that everyone assumes that they know what the Internet is, but I don't think there is anyone who has a certain definition of what the Internet is," Sandstrom said. "So we are approaching this with requisite caution, and we don't want to do damage to the medium as a facilitator of political discourse. We see that the Internet is a unique medium unlike broadcasting."
In early November, the FEC issued a list of advisory opinions more favorable to Internet political activity. They included a decision to consider volunteer Web sites created by independent supporters of a campaign as a form of volunteer activity, akin to putting up a sign in one's front yard, and not a campaign contribution. It also said that links between individual and campaign Web sites are permissible so long as the person setting up the site does not normally charge for links. It also dismissed a request by the George W. Bush campaign for president to charge a parody Web site with violating election laws, with the FEC saying the matter wasn't important enough to warrant an official ruling.
Congress Cautions FEC
Meanwhile, Congress also has put pressure on the FEC to refrain from making any regulations related to the Internet. Sen. Conrad Burns, R-MT, and Sen. Bob Bennett, R-UT, introduced a bill that would exempt political communications on the Internet from being regulated by the FEC. House Whip Tom Delay, R-TX, last fall introduced similar legislation.
Despite the FEC's recent hands-off approach, a Burns staff member said the belief is that legislation needs to codify the hands off approach, because commission dynamics can change as commissioners leave and new commissioners are named. With campaign finance legislation already considered and passed this year, it is unlikely however that Burns or DeLay's measures would move this year.
There is one advisory opinion the FEC could issue before the election, related to a request for an advisory opinion filed by Voter.com, a political information Web site. Voter.com, which charges candidates for certain services to reach voters, asked the FEC in May to rule on whether for-profit Internet sites can offer politicians certain political services for free. Critics of Voter.com charged that the request was more about trying to get the FEC to invalidate the business model of the company's main competitor Grassroots.com, which also offers political services, than request for the FEC to define Internet political speech rules.
"They are being a little paranoid," said Craig Smith, director of Democrat affairs at Voter.com, of the critics' charges. "These are legitimate questions. We don't want to break the law, and we don't want to put any of our clients in jeopardy of breaking the law."
Advocates of Internet political speech like Dempsey said that the FEC already ruled that a for profit political Web site, called Election Zone, could legally give political information for free, and therefore it is likely the FEC will advise Voter.com that for-profit Web sites can offer political services for free.
The FEC recently asked Voter.com for more information about what the Web site does and the services it provides, Smith said. The company is putting the information together and will file it with the FEC soon.
 | - by Bara Vaida |
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