Politics & Policy

System Failure

Congress should have passed the Online Freedom of Speech Act.

OWednesday, the Online Freedom of Speech Act(HR 1606) failed to pass on suspension with the necessary two-thirds vote. While supporters, pleased with their clear majority (225-182), vow to bring it back as a bill in the ordinary course, this is an unfortunate development in the debate over how the Internet will be affected by campaign-finance laws.

The bill itself was reasonable and modest in scope. It would have codified existing regulations–which are currently the law under which we labor–exempting the Internet from special rules that apply to “public communications.” These rules have the most impact for political parties (especially state and local parties), and groups like some PACs that “allocate”–that is, use money raised outside the federal rules for some general expenses. They also affect which messages require disclaimers–the little “Paid for by” tag you see on direct mail and TV ads.

While the technical reach of the bill was modest, the impact of its defeat may not be. The Federal Election Commission is currently rewriting the existing Internet rule under a court order. It may be that the FEC’s approach will be modest–say, to require disclaimers on paid advertisements and spam on the Internet. But it is also possible that regulators will look at the bill’s failure as some endorsement of the need for greater regulation, because the FEC has also opened the question of whether Internet journalists are exempt from regulation as “press”–an issue not addressed by the legislation but one of great significance to bloggers. Certainly, the bill’s passage would have preempted the legal necessity for the FEC to involve itself in Internet rulemaking.

The FEC is presently considering an advisory opinion request from an openly political website called Fired Up, which is seeking confirmation that they are protected under the law’s so-called press exemption. The bill’s failure may signal to the FEC that Congress isn’t interested in protecting the Internet, at a time when these questions are before it.

Currently there are four seats on the commission awaiting new members or reappointments, and it is hard to know how new commissioners who have not been direct participants in the debate will rewrite the regulations or treat Fired Up; passage of the Online Freedom of Speech Actwould have clarified this increasingly cloudy situation.

Why did the measure not pass? Perhaps, in part, because the campaign against the bill was rife with falsehoods about the effect of the exemption. “Reform” supporters like Democracy 21’s Fred Wertheimer, the Campaign Legal Center’s Trevor Potter, and the American Enterprise Institute’s’s Norm Ornstein castigated the bill’s motives (and supporters) in harsh terms. They maintained that it would open up the federal system to soft-money abuses. They alleged that corporations could spend unlimited sums on campaign ads at the behest of candidates. The same claims were made by Rep. Marty Meehan (D., Mass.) and many of the bill’s critics on the House Floor, in what appeared to be a serial recitation of the “reform” talking points.

These assertions were false. You needn’t take my word for it–recall that the bill would merely codify existing law. That’s right. The Internet exemption is the law of the land today, but none of these catastrophes have yet occurred. Why? Because such activity is illegal under long-standing prohibitions against corporate contributions and expenditures–laws to which the Internet remains subject.

But the reform lobbyists got a pass from most media. Their ruminations were swallowed whole by the Washington Post, the New York Times, and Roll Call. They sowed confusion, and reaped a bounty. So it will be no surprise when, the next time Congress considers a reform measure, they do the same thing. Boldly.

Who will push back? The Republican leadership seemed to feel little at stake in this issue. Perhaps they saw the Internet exemption for public communications as an aid to parties and political action committees over which they exercise little authority. The Democrats? They seem intent on using “ethics” as a blunt instrument against Republicans. And the White House has demonstrated its enthusiasm for embracing restrictions in campaign finance for political advantage–a strategy that is tragically shortsighted.

Among the pundits who might respond there seems to be a fog of ennui on campaign-finance questions. It never fails to astound me how the same individuals who can master church-state law, Medicare, foreign affairs, and the death tax–sometimes in the same conversation–complain that campaign-finance issues are obscure, difficult, and . . . boring. Campaign-finance laws shape campaigns, and campaigns shape elections and our government. Government, perhaps unfortunately, shapes everything else. It makes a difference. We shouldn’t cede an important area of policy to those committed to greater restrictions and regulation. Especially where, as here, they can’t be trusted to make a straight argument.

Allison Hayward is a campaign-finance attorney and writer. She also writes a blog on these issues at www.skepticseye.com.

Allison R. Hayward — Nina Owcharenko is a senior policy analyst for health care at the Heritage Foundation's Center for Health Policy Studies.

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