Feds get set for Net rules

FEC takes first steps to shape campaign rules for the blog era as Web partisans keep a watchful eye.

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
5 min read
WASHINGTON--The Federal Election Commission has begun the perilous process of including political blogs and Web sites in campaign finance rules that were created long before the Internet became such a powerful political tool.

FEC commissioners voted 5-1 on Thursday to approve a procedure that is expected to end with a final set of Internet rules--governing everything from whether bloggers are journalists to bulk political e-mail--in place by the end of the year.

"What we're arguing about is how much freedom people are going to lose on the Internet," said FEC Commissioner David Mason, a Republican. "If we do it right, they won't lose much freedom."


What's new:
The FEC has taken its first steps to shape campaign rules for the blog era.

Bottom line:
The final set of Internet rules could govern everything from whether bloggers are journalists to bulk political e-mail.

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The FEC is in the unusual position of being required to extend the Bipartisan Campaign Reform Act (BCRA) because of a federal judge's order last fall. The three Republican commissioners had tried to persuade their three Democratic colleagues to appeal U.S. District Judge Colleen Kollar-Kotelly's decision (click for PDF) to include the Internet, but the Democrats refused.

Ever since FEC Commissioner Bradley Smith, a Republican, warned of the possibility of an impending Internet crackdown in an interview with CNET News.com in early March, an army of bloggers has mobilized to oppose intrusive regulations, and members of Congress have warned the commission that its actions are being closely watched.

As a result, the Democratic commissioners on Thursday attempted to play down the significance of their opposition to an appeal a few months earlier. "We are not the speech police," said FEC Commissioner Ellen Weintraub, a Democrat. "The FEC does not tell private citizens what they can or can't say on the Internet or elsewhere."

FEC Commissioner Danny McDonald, another Democrat, said: "I've never seen so much ado about nothing at this stage of the process."

Mixed reaction to rules
Among bloggers and political commentators, the reaction to the FEC's proposed regulations (click for PDF) was mixed.

Mike Krempasky, a contributor to conservative Web site RedState.org who attended the meeting, said: "Don't believe Ellen Weintraub when she repeats her mantra of 'Bloggers, chill out!'"

Krempasky said the draft rules, if finalized, would create a "regulatory minefield" because they give individuals greater leeway than corporations. But a growing number of bloggers are incorporating to gain protection from civil suits, he said, which means they could be prohibited from political activities unless they qualify as legitimate journalists.

A section of current law known as the "media exemption" says

campaign-related expenditures aren't regulated if they're made by certain types of journalistic outlets. But the definition is relatively narrow and covers only a "broadcasting station, newspaper, magazine, or other periodical publication"--it does not specifically include Web sites. FEC commissioners on Thursday said that they would make "case by case" decisions about who qualifies.

Bloggers beware:

As the Federal Election Commission takes its first steps to shape campaign rules for the blog era, FEC Commissioner Bradley Smith warned that proposed rules present unanswered questions for bloggers:

  • The draft rules provide some protections for "individual" political commentators. But what if a group of people jointly publish a blog? "If one of the bloggers received payment for an activity, would it turn the group into a political committee" subject to campaign finance regulation, Smith asked. He pointed to the academic-leaning Volokh Conspiracy blog, which has multiple contributors.
  • Some blogs, such as Daily Kos, are published by a corporation. If they endorse candidates, they must be approved by the FEC as legitimate news organizations or run afoul of the law, Smith warned. If such a site "did not qualify for the press exemption, the mere fact that they're unpaid does not get them out from under the regulation."
  • The FEC's proposed regulations talk about "announcements placed for a fee on another entity's Web site." Smith asked: What if those are pop-up political ads generated by a software program such as Claria's "adware," instead of by a Web browser? Should the FEC target Claria, the advertiser or the Web site that happens to be in the background?
  • Rick Hasen, a Loyola Law School professor who argued in court in favor of the BCRA, said that the "FEC's first stab at writing new rules raises as many questions as it seeks to answer, and we must remain wary of both intended and especially unintended consequences."

    Hasen suggested that the proposed rules may not go far enough. For instance, he said, bloggers that get paid by political campaigns should be required to disclose their involvement in a prominent notice on their Web site. (In last year's race, the Howard Dean campaign paid the publishers of the Daily Kos and MyDD blogs $3,000 a month.)

    One page of the 47-page proposed regulation raises the question, and tentatively concludes that bloggers should not be required to disclose payments. During a brief debate, Mason warned that the FEC might not have the authority to force individuals to post disclaimers and proposed that the commission delete that page from the proposal.

    Mason's attempt to approve the proposed rules without that page failed by a vote of 1-5. He was the lone dissenter in the 5-1 vote to approve the rules with that page included.

    Commissoner McDonald said "it's important to have it in" because the public is "better served to have these issues out there and have them discussed."

    The Republican commissioners seemed worried about starting a process that could result in an ever-growing set of rules affecting online commentators. "Once we start down this road, it will be very difficult to limit where we proceed," Mason said. "We may even be sued if we adopt these rules."

    Interest from Capitol Hill has been unusually intense. Sen. Harry Reid, D-Nev., has introduced legislation that would effectively overturn Kollar-Kotelly's decision from last year by immunizing the Internet from campaign finance laws. In an opinion article on Thursday, Rep. John Conyers, D-Mich., said that "bloggers should be classified as journalists and given First Amendment protections."

    Some of the original sponsors of the BCRA, on the other hand, wrote a letter warning the FEC not to do anything that would create "loopholes" in the law. Reps. Christopher Shays, R-Conn., and Martin Meehan, D-Mass., who signed the letter, had sued the FEC to overturn the agency's earlier decision that largely exempted the Internet from campaign finance rules and resulted in the current proceeding.

    The public will have 60 days to comment on the proposed regulations. The FEC is accepting comment by e-mail to Internet@fec.gov or through Regulations.gov. A public hearing is scheduled for June 28.