Election commission takes light touch with Net regs

Bloggers may not have much to worry about, FEC indicates in proposed regulations. Vote is scheduled for Monday.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
The Internet's freewheeling days as a place exempt from the heavy hand of federal election laws are about to end.

Late Friday, the Federal Election Commission released a 96-page volume of Internet regulations that have been anticipated for more than a year and represent the government's most extensive foray yet into describing how bloggers and Web sites must abide by election law restrictions.

The rules (click here for PDF) say that paid Web advertising, including banner ads and sponsored links on search engines, will be regulated like political advertising in other types of media. They also say bloggers can enjoy the freedoms of traditional news organizations when endorsing a candidate or engaging in political speech.

If the regulations are approved by the FEC at its meeting on Monday, they will represent a substantial change from a far more aggressive version of the regulations seen by CNET News.com last year. An outcry from bloggers and even members of Congress appears to have caused FEC lawyers--who are under court order to regulate the Internet--to rethink the rules and adopt a more laissez-faire approach.

Though not all the implications of the 96-page document were immediately clear, one prominent advocate of Internet free speech said the rules are preferable over what could have happened.

"They've tried to take a light hand, and it looks like they might have succeeded," Brad Smith, a former FEC chairman who teaches law at Capital University Law School in Columbus, Ohio, said in a telephone interview. Smith said, though, that he was not able to review the document in detail.

Also exempted from the sweep of the Bipartisan Campaign Reform Act--better known as the McCain-Feingold law--are e-mail messages sent to 500 or fewer people, posting a video unless it's a paid advertisement, and online activities done by volunteers even if the actions are undertaken without the knowledge of the campaign. In addition, an employee's "incidental" use of a company's computers for political activity is acceptable.

Bob Bauer, a partner in the political law group of the Perkins Coie law firm, said now "we have some clarity, much of it on the deregulation side, which for many activities means little change."

An unusual political backdrop
The FEC's internal deliberations are taking place against an unusual backdrop of congressional action. Bloggers of all political stripes, many politicians and even FEC Chairman Michael Toner have thrown their support behind a proposal in Congress that would amend current law and largely immunize the Internet from election law.

An effort to do just that was defeated by Democrats in the U.S. House of Representatives last November. In a second attempt to enact the same proposal, a House panel this month approved the bill again, but the release of the FEC rules could delay it indefinitely. (A similar measure is pending in the Senate.)

Critics of a broad exemption--including the New York Times editorial board--say that excluding all Internet communications is a recipe for corruption, giving candidates the green light to coordinate unfettered soft-money online spending with corporations, labor unions and wealthy donors.

Rick Hasen, who teaches election law at Loyola Law School, has called for what he describes as moderate Internet regulation. Hasen said the FEC rules clear up a lot of unanswered questions, such as whether a Web site like Slate.com or Salon.com qualifies for the media exemption.

"I would have liked to see one kind of regulation that's not here, which is disclosure that a blogger has been paid for by a candidate or committee to take a position in an election," Hasen said. "The FEC expressly says that's not required."

The FEC is under court order to issue new regulations establishing parameters for the Internet. It had issued regulations in 2002 that completely carved out Internet communications from the freshly enacted 2002 McCain-Feingold law. But U.S. District Judge Colleen Kollar-Kotelly overturned the FEC's set of rules in fall 2004, saying at the time that the commission's move "severely undermines" the campaign finance law's purposes.

The three Republican commissioners--including Smith, who's now a law professor--had wanted to appeal the Internet-related sections. But because they couldn't get even one of the three Democrats to go along with them and give them a majority, that didn't happen and the FEC began the current proceeding.

Smith, who co-founded a nonprofit group called the Center for Competitive Politics, said Friday that the original immunization of the Internet by the FEC has led to no torrent of abuses.

"You have to sit and wonder if it wouldn't have been better to stay with that rather than the judge forcing the commission to go back and write a 96-page rule," Smith said.

CNET News.com's Anne Broache contributed to this report