House, FEC Delay Votes on Internet Campaign Bill, Rulemaking
The Federal Election Commission’s (FEC) plans were upended late Wed. when a House committee failed to bring an online political speech bill to the floor. Earlier in the day, FEC Chmn. Michael Toner said the agency was delaying by a week its final rules for Internet campaigning, scheduled for Thurs., to see the outcome of a floor vote on Rep. Hensarling’s (R-Tex.) Internet Freedom of Speech Act (HR- 1606). But the House Rules Committee couldn’t settle on ground rules for floor debate on the bill and postponed consideration of the rules until after the congressional recess for St. Patrick’s Day. The FEC’s final rules will be released by then unless the Commission again delays its vote, a possibility discounted by commissioners we spoke to.
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But a source close to the FEC said Toner and Comr. Hans von Spakovsky are “out of play,” meaning they won’t support any new rules for Internet campaign activity in a final order. Absent a majority for a rule, that would mean the court ruling that forced the Commission to revise its rules only would apply in its area of jurisdiction: Washington, D.C.
The delay has probably helped a new competing bill, the Internet Free Speech Protection Act (HR-4900), sponsored by Reps. Bass (R-N.H.) and Allen (D-Me.). That bill is largely based on a proposal from the Center for Democracy & Technology (CDT). The delay “simply reflects the fact that a broad range of members from both parties think that 4900 might be a better answer,” CDT Staff Counsel John Morris told us. The CDT bill, as it’s informally known, would put a $5,000 limit on money spent online for political purposes and a $10,000 cap for groups to spend money online before becoming classified as a committee, which carries reporting requirements (WID March 3 p4). The Hensarling bill would preserve the “status quo,” as supporters say, codifying the FEC’s exemption of the Internet from the “public communications” definition in the Bipartisan Campaign Reform Act.
Former FEC aide Allison Hayward told us Congress had a “huge failure of nerve, and delay is always attractive.” She said it was hypocritical for Bass-Allen supporters to push for a floor vote alongside the Hensarling bill: “The whole reason we couldn’t pass HR-1606 [in Nov.] was because nobody had studied it,” and the new bill hasn’t been thoroughly reviewed. Hayward, who blogs on campaign finance issues at SkepticsEye.com, doubts the reform community really likes HR- 4900, and is more likely stalling for time: “It so contradicts what so many of them have said.”
Morris was perplexed that HR-1606 supporters tried to fight off the new competing bill, as it extended protections for “small speakers” further than the earlier bill. He faulted Hensarling supporters for the attempt to get a floor vote for the CDT bill: Bass and Allen “fought very hard to have 4900 considered in committee,” and Hensarling backers prevented that. Noting the campaign finance reform community made some concessions in supporting the CDT bill, Morris said: “I wish that others [from the other side] had been willing to sit down.” CDT’s language was influenced more by the “anti-reform camp” than the reform community, he added.
Big political blogs with lots of outlays wouldn’t necessarily come under the CDT bill’s regulations, Morris said. Referring to the 2 most vocal -- RedState.org on the right, DailyKos.com on the left -- he said: “Both of those organizations could well end up deemed to be exempt under the media exemption” in the CDT bill. A similar network of partisan websites got the media exemption in a 2005 advisory opinion (WID Nov 21 p2). But large political blogs can handle any regulations they're stuck with, he said: CDT’s goal was to “protect the vast majority of citizen speakers… I'm not that worried about DailyKos’s ability to file a report with the FEC.” HR-1606 “doesn’t relieve [small blogs'] obligations to file reports,” but the CDT bill does, he added.
[[Full Speed Ahead for FEC, but Majority Could Be ‘Tough']]
Regardless of congressional dallying, the FEC will push forward with a March 23 vote, commissioners said. “We've kind of got a problem here in that we're under a court order” to define the Internet’s place under the Bipartisan Campaign Reform Act, Comr. Ellen Weintraub said. Commissioners still are “talking amongst ourselves” on points, but whatever is decided is “not going to be unexpected,” given the year of hearings on the rulemaking, she said. Toner restated intent to release the rule next week.
But a former commissioner sees a wide divide at the Commission. “They will have a very tough time pulling together a majority” vote, Capital U. Law Prof. Brad Smith told us. “I think they were really hoping Congress would handle this.” Smith started the hubbub over new Internet campaign rules last year as a commissioner.
The more Congress learns about HR-4900, the less attractive it will be, Toner and Smith said. The CDT bill is “much broader in scope [and] key statutory terms aren’t defined,” Toner said. It would require an additional FEC rulemaking within 150 days of enactment. Congress will find “it’s very easy for somebody to get mad at somebody and file a complaint” with the FEC for online activity under HR-4900, Smith said. He compared HR-4900 to an ugly Christmas tree with attractive ornaments. “It doesn’t give [bloggers] the security” to engage in political activity without worrying about regulation, he said.