Demonstrate Harm Before Regulating, Groups Tell FEC on Internet Rules

“The electorate is best served when the Commission crafts rules that remove actual corruption while encouraging more participation, opinions and choices to permeate the democratic process,” the comments said. Bassik and Mike Krempasky of RedState.org, who helped draft the comments, asked to testify at the FEC’s public hearings on the NPRM June 28-29. A who’s who of high- traffic bloggers signed the OC comments, including Edward Morrissey of CaptainsQuartersblog.com, syndicated columnist Michelle Malkin of MichelleMalkin.com, and Jerome Armstrong of MyDD.com. Several campaign consultants also signed, including Chuck DeFeo, Bush’s former e-campaign mgr.

The Center for Democracy & Technology (CDT) and Institute for Politics, Democracy & the Internet (IPDI) released a draft statement Thurs. to be submitted to the FEC today with full comments. The statement largely follows OC’s comments, urging the FEC to avoid “prophylactic rules” aimed at hypothetical harm from Internet political speech and if necessary create narrow rules for Internet speech that are technology-neutral and flexible. CDT and IPDI hosted a panel discussion Thurs. to explain OC’s and their comments in detail.

Provisions in the NPRM still provoke dispute over meaning, panelists made clear -- sometimes with laughter - - several times in the discussion. CDT’s full comments “will be very, very detailed” because of the complexity of the proposed rules, counsel John Morris said. “I can tell you from personal experience that it’s extremely hard to figure out how these rules interact with each other,” even for lawyers: “The sheer complexity of the current rules… simply will chill speech” if applied broadly online. IPDI spent 3 weeks poring over the NPRM before fully understanding the proposed changes, Dir. Carol Darr added. She said ordinary bloggers can’t afford a lawyer who understands the campaign laws. Campaign regulatory lawyers similarly fretted over the precise application of campaign rules to the Internet, under current law and the FEC proposal, at an IPDI discussion last month (WID May 13 p1).

The NPRM marks the first time an FEC rule would affect a large and somewhat amorphous group of nonprofessionals, Krempasky said. Previous rules affected a small number of campaign professionals who “can afford really expensive lawyers” and budget for minor infractions. That’s not true of bloggers and individual campaign volunteers: The final rules “ought to ensure that no blogger ever has to call a lawyer” over alleged online political activities, Krempasky said. The specter of complaints flooding the FEC over minor rule infractions online could distract the agency from its more important work tracking candidates, parties, PACs, corporations and unions, panelists said. “It’s pretty easy to conceive of 500 or 1,000 complaints being filed over a weekend,” possibly to swamp political rivals with FEC investigations, Krempasky said: “The potential for abuse… is really a danger.”

Online political activity in the 2004 campaign featured little of the abuse or corruption that inspired previous campaign regulations, panelists said. Improper coordination among groups, inappropriate use of soft money and deceptive advertising were almost absent from the campaign, Bassik said. Prophylactic rules used offline haven’t seemed necessary online yet, technology policy consultant Leslie Harris said: “You should not regulate until and unless you have a harm.” The low level of online advertising likely figured in the dearth of questionable activity, Darr said, citing 3 reasons from an IPDI study: (1) “Hardly anyone knew how to buy it,” whereas TV, radio and print spending on campaigns is an industry. (2) Campaigns thought they would be “preaching to the choir” by spending online, but this will change: “The distinction between your average citizen and Internet users continues to diminish.” (3) The Internet is not seen as being as persuasive as other media, especially TV. Darr said the predominance of billboard-style online ads - - and lack of rich media, with moving images and text -- in last year’s campaign limited online ads’ appeal.

The blogosphere and the larger online community resemble a town square in which ordinary people can join the political process, Morris said. Blogging, Darr said, dramatically boosted participation in politics. She said in previous elections, a “small clique” of some 130,000 political operatives controlled the campaign, but the Internet and blogging widened the ranks of those involved to an estimated 13 million, a 100-fold increase: “The political elite have been usurped by ordinary people.” But panel members also asked what could happen to this “town square” were FEC to clamp down on blogging. If the FEC went after just one blogger, Bassik said, it would chill political speech online.

The blogosphere’s self-correcting -- and shaming -- nature largely obviates the need for campaign finance disclosure, Krempasky said. Bassik said he felt sting of blog shaming after he forgot to disclose his involvement in an issue he wrote about: “The blogosphere is unforgiving if a blogger is going to take advantage of his or her readers for inappropriate purposes.” OC also discounted the damage from corporations and unions spending money for commentary online: “If it is boring, hackneyed or wrong, people will read something else… on the Internet the amount of the expenditure may bear little relation to the message’s influence.” Bloggers would be unique among recipients of campaign money, if they were required to disclose that on their sites, Krempasky said. For example, he said, CNN commentator Paul Begala, a former Clinton strategist, doesn’t have to tell viewers if a campaign paid him, but a blogger would. He said RedState.org decided early to incorporate as a 527 “simply to protect ourselves” because of confusion over how campaign rules would affect the site. Darr was most concerned that, as offline rules governing corporate and union money are extended online, “ordinary people not get caught up in the regulatory net.”

The financial trigger for reporting had the panel in an uproar. Anyone spending $250 in a calendar year for federal political activities now must report to the FEC, with their personal information made part of the public record. Many people running political blogs spend that much on bandwidth every year, Harris said: “Are there going to be hundreds [of filings], or are there going to be millions?” An obscure blogger could acquire an embarrassing video of, say, President Bush, post it and see site traffic spike, driving up bandwidth costs, Krempasy said. If that happened in Oct., it could be after the election before the blogger knew from his bill that he'd crossed the reporting threshold. Krempasky also said he worries for the privacy of individuals and informal political groups under the disclosure requirements for ads, which the NPRM doesn’t address: “How many people do we teach over and over again, ‘Don’t put out your home address on the Internet'?” Several panelists supported a higher threshold for filing, such as Common Cause’s proposal of $25,000 in a 2000 FEC filing. Even a $1,000 criterion would streamline the system and keep the FEC from foundering on complaints against ordinary citizens, Darr said. She pointed out that $1,000 or so is nothing to a corporation or union, at which the regulations are aimed, but “we're talking about real money” to ordinary people. “I am hopeful… we'll see that [campaign finance reform] community stepping forward and making concrete proposals” on the threshold, Morris said.