FEC requesting comments on Internet use

[James A. Donald]

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On 4 Apr 2005 at 12:47, Shawn Duffy wrote:

> http://www.regulations.gov/freddocs/05-06521.htm
>
> Public comments due June 3rd.
>
> >From the Summary:
> "The Federal Election Commission requests comments on 
> proposed changes to its rules that would include paid 
> advertisements on the Internet in the definition of 
> ``public communication.'' These changes to the 
> Commission's rules would implement the recent decision 
> of the U.S. District Court for the District of 
> Columbia in Shays v. Federal Election Commission, 
> which held that the current definition of ``public 
> communication'' impermissibly excludes all Internet 
> communications. Comment is also sought on the related 
> definition of ``generic campaign activity'' and on 
> proposed changes to the disclaimer regulations. 
> Additionally, comment is sought on proposed new 
> exceptions to the definitions of ``contribution'' and 
> ``expenditure'' for certain Internet activities and 
> communications that would qualify as individual 
> volunteer activity or that would qualify for the 
> ``press exemption.'' These proposals are intended to 
> ensure that political committees properly finance and 
> disclose their Internet communications, without 
> impeding individual citizens from using the Internet 
> to speak freely regarding candidates and elections.

 "Properly finance" means that speech will be defined as
paid for, even if no actual money changes hands.   The 
proposed rule brings what was formerly speech into the 
definition of expenditure, even if assigning a money 
value is arbitrary.

There is no real distinction between individual speech 
and campaign expenditure so broadly defined.  Any 
distinction between the campaign and individual citizens 
is merely some arbitary cutoff.  Perhaps comments in "A" 
list blogs might be defined as campaign expenditure, and 
comments in other blogs might be defined as individual.

The obvious rule is "If the campaign does not pay money 
for it, it is not a campaign expenditure", but this rule 
is declared to be a loophole, a loophole that must be 
corrected - and of course it is a loophole.  But it is a 
loophole that cannot be fixed without massive violation 
of free speech.  Fixing this "loophole" is what is meant 
by "properly finance".

To fix this "loophole", speech must be deemed to be 
campaign speech, at least if it is sufficiently 
prominent, and if it is not in fact paid for directed 
and planned by the campaign, this will be an offense, a 
form of fraud, cheating the campaign laws.

This rule (speech is money, and unpaid for, unsupervised 
electoral speech is fraud) already applies in the 
offline world - thus the NRA is forbidden to inform 
voters about the way a particular politician votes on 
guns - at least forbidden to do so shortly before 
election time, because that would supposedly be a 
campaign expenditure.  To get around this rule, the NRA 
has purchased some radio stations, thus availing itself 
of the press exemption, which allows the press, but not 
ordinary mortals, to comment on political races.

The question then, is how will this prohibition against 
political speech on specific politicians and campaigns 
be applied to the internet.  "A" list blogs claim to be 
the press, so the argument is that "A" list blogs should 
be exempt from this rule because they are the press, "B" 
list blogs exempt because they are individuals, so no 
regulation of internet speech. Evidently some people
reject this argument. 

    --digsig
         James A. Donald
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