Politics & Policy

Virus Alert!

McCain-Feingold is set to infect the Internet.

For two years, campaign-finance reformers fought in the courts to force the Federal Election Commission to regulate the Internet more heavily. They won, and legislation is in the works. Two bills are before Congress, H.R. 4900 and H.R. 1606. The “reform community” is strongly backing the former, and, to garner support for it, is claiming that it offers more than adequate protections. It doesn’t.

Before McCain-Feingold, or “BCRA,” federal campaign law regulated “expenditures” and “contributions” made “in connection with” federal elections or “for the purpose of influencing” federal elections. In the 1976 case, Buckley v. Valeo, the Supreme Court held that the definition of “expenditures” and “contributions” should be limited to “express advocacy,” that is, phrases such as “vote for,” “defeat,” or “Smith for Congress.” Otherwise, the Court held, the statute would be unconstitutionally vague and overbroad, since speakers would be uncertain about what speech was legal–after all, virtually any political discussion might “influence” an election. The Court chose the “express advocacy” standard because express advocacy is unequivocally designed to affect elections, and because it establishes a bright line between regulated and unregulated speech that most speakers can readily understand.

BCRA reached beyond express advocacy to include expensive advertising paid for by sophisticated political actors, or targeted specifically to relevant voters in close proximity to impending elections. This was done by extending federal campaign law to regulate a limited set of “public communications” in addition to “expenditures” and “contributions.” Congress had in mind large scale campaigns involving large amounts of cash. In McConnell v. FEC, the Supreme Court upheld this extension of the law against a challenge of overbreadth, in large part because of the limited reach of the term “public communication.”

At the time BCRA passed, there was no talk of regulating electronic mail or the Internet. Congress had used those terms elsewhere in BCRA, but not in the definition of “public communication.” The FEC followed Congress’s lead and exempted Internet and electronic mail communications from the new regulation of “public communications.” It continued to regulate online communications that were “expenditures” or “contributions”–that is, the FEC continued to regulate express advocacy on the internet. But it is very doubtful BCRA could have passed Congress if it included regulation of the Internet.

Once BCRA was safely passed, however, the reformers sued to gain in court what they could not get from Congress or the FEC. They found a hospitable judge who ordered the FEC to include Internet and electronic mail communications in the “public communications” regime. The FEC did not appeal the Internet decision, and is scheduled to vote next week on new regulations for the Internet.

Unless Congress acts to remove the Internet from the “public communications” regime, Internet users face three legal “viruses”–standards so vague and overbroad they can freeze or shutdown blog-servers nationwide. Though it contains some features beneficial to bloggers, the bottom line is that H.R. 4900 is infected with these viruses. H.R. 1606, in contrast, is less comprehensive than H.R. 4900, but unlike 4900, it removes these viruses from the system.

1. The PASO Virus. The first virus planted by H.R. 4900 is the promote, attack, support, or oppose (“PASO”) standard of BCRA. It applies to any “public communication” that mentions a federal candidate which is made by any state, county, or local party committee, 365 days a year ( 2 U.S.C. 431(20)(iii)). BCRA requires any communication that PASOs a Federal candidate be paid for with Federal (i.e., regulated and sharply limited) money (2 U.S.C. 441i(b)(1)). H.R. 4900 leaves Internet communications subject to PASO rules.

Thus, under H.R. 4900, before a state, county, or municipal party committee can spend money on its website, it will have to determine whether anything they say “promotes” a federal candidate. If so, it must be paid for with Federal money. Why would a local party mention a candidate, if not to promote him? Why, if the candidate doesn’t have the party’s “support,” do they share party affiliation? Thus, state, county, and municipal party committees will, at the mere mention of a federal candidate, be engaging in what the reformers will no doubt call “a massive circumvention by thousands of party committees of the soft-money provisions of BCRA.” The reformers will commission a study, publicize it in a gullible press, and call for a “crackdown.” State and local party committee officials will be frozen, fearful of effectively utilizing their websites for fear of facing jail time (2 U.S.C. 437g(d)).

Unlike H.R. 1606, H.R. 4900 contains a “press exemption” for bloggers, but local parties cannot benefit from this exemption: under the law the “press exemption” can never apply to a communications medium controlled by a party committee, including a website ( 2 U.S.C. 431(9)(B)(i)). Should the FEC try to solve this problem by narrowing or clarifying the PASO standard for state and local party committees, the reformers will return to Judge Kollar-Kotelly’s court to have the FEC standard declared “a massive loophole,” as they did before.

Thus, if state, county, and local party committees want to play it safe, they will fund their websites with federal money. But this is often difficult to raise, and because of the biennial aggregate limit on hard money contributions, successful local party hard money fundraising will starve national party committees, PACs, and federal candidates of much needed funds. This “PASO virus” will eat away at party committee website content across the country, and the reformers know it.

2. The Coordination Virus. Under BCRA, coordinated “public communications” are treated as campaign contributions. H.R. 4900 keeps Internet spending within the regulatory system as a “public communication.” In this regime, it will be easy for reformers or political rivals to allege that state and local party committees have been coordinating their website communications with federal officeholders or their agents within 120 days of an election. Whether or not this is true will normally be a question of fact, something the FEC will have to investigate: Has the state or local party received any e-mails from the federal campaigns? What do the e-mails say? Phone calls? Face-to-face meetings? Attendance at the same fundraisers or rallies? Who attended? What was discussed? And because state and local parties routinely communicate with federal candidates and national parties, some such contacts will nearly always exist.

Unless Congress enacts language such as that in H.R. 1606, coordinated activity over the Internet will also be included in what is known as a party committee’s “441a(d) limit.” This provision limits the amount of coordinated activity between federal candidates and all committees of a political party–local, county, state, and national. Even a municipal party’s website can be read anywhere in the country, thereby triggering a coordination investigation. To avoid this investigation, national party counsel would be forced to deduct the value of that message from the overall amount the party planned to spend on its 441a(d) allotment. The more likely alternative, however, is that national party committee counsels everywhere will simply insist that no other party committees anywhere mention federal candidates once the primary season begins. We could see the specter of state, county, and local party committees making no mention of presidential candidates–their standard bearers–on their websites for 120 days before any convention, caucus, or primary, anywhere in the country.

The coordination virus will eat away at other forms of web commentary as well. For example, if you run a group blog anywhere in the country, and the Internet is included in the definition of “public communication,” how long would you pause over a piece before posting it? You know that not all mentions of a candidate will be investigated. But you also know that mentioning a candidate 120 days before any election that affects him can trigger an investigation into whether you’ve coordinated your activity with the candidate or his opponent. You know your site has a nationwide reach, so you ask yourself: Have you or your fellow bloggers traded e-mail with that candidate’s campaign? What would the e-mail show? Have you spoken to that candidate? Received calls from his staff? How much would it take to convince the FEC you didn’t coordinate? Could you afford the legal fees? Questions such as these are stultifying but must be asked, every time you post, once the bright-line standard preventing investigations of coordination (“express advocacy”) is replaced by the “public communications” standard. The reformers know this regime is stultifying, and know you’ll stop blogging once you receive the federal complaint they file with the FEC, or a complaint from the offended candidate. Or, better yet, you’ll make the reformers’ task easy, and avoid FEC complaints by deleting anything at all about a candidate before posting.

H.R. 4900 holds out the possibility that in such a scenario, you may be entitled to the press exemption–after all, even if you did coordinate with a candidate, traditional news outlets do the same, so the FEC can’t touch you. But under BCRA, no organization deemed a “political committee” can continue to claim the press exemption (2 U.S.C. 431(9)(B)(i)). So the FEC might ask–are you a political committee? The sponsors of H.R. 4900 have admitted that their bill will allow many blogs and other websites to be classified as “political committees.” So the FEC need not defer to your invocation of the press exemption, since the pertinent question is: “Are you a political committee?” In a battle of that kind, you have everything to lose, and the reformers have nothing to lose. Bringing BCRA to ever more organizations is their job; it’s what they do 50 hours a week, 52 weeks a year. Even if the FEC protects you with an advisory opinion or rulemaking, reformers know they can sue the FEC in court to change the standard. And filing such suits allows them to apply for more grant money from large foundations.

When the standard which supports an investigation into possible coordination goes from statements that expressly advocate a candidate’s defeat on the Internet to statements that merely mention a candidate on the Internet, bloggers will not know how to comply. Unleashing BCRA’s “public communications” regime on the Internet will act as a veritable virus, virtually shutting down blog servers all across the nation.

3. The Threshold Virus. H.R. 4900 exempts a good deal of low-dollar Internet activity. Nothing, however, prevents the reformers from later chipping away at the exemptions they are now using to win support for H.R. 4900. The FEC once had to decide which costs incurred in producing an online communication count towards the legal thresholds. There the FEC said this to a requester seeking advice from the commission:

You assert that the creation of the website is without cost to you. The Commission, however, cannot agree with this characterization. The Commission notes that there are minimal costs associated with creating the website. … These overhead costs would include, for example, the fee to secure the registration of domain name, the amounts you invested in your hardware, and the utility costs to create the site.

Advisory Opinion 1998-22. Having established that the Internet should be regulated beyond some threshold, the reformers can sue the FEC to ratchet down the effective generosity of the exemptions by including the costs of additional factors of production: hardware, bandwidth, ISP fees, the table your laptop is sitting on, the office that houses the table. The reformers want you making such calculations every time you mention a candidate. And even if you fall within the thresholds, if a complaint is filed against you, a fact-intensive investigation may be needed to verify that your claim is true. Are you prepared for those legal bills?

So, why has the “reform community” seized on H.R. 4900? Because the legislation preserves the “public communication” regime online. No matter how generous to Internet activity H.R. 4900 may at first appear–no matter how generous its supporters at the Center for Democracy and Technology honestly want it to be–H.R. 4900 preserves for reformers what they won in court: an order that the FEC must broadly regulate the Internet. As history is our guide, we know that from this beachhead they will seek to expand the regulatory domain.

Viruses cannot thrive in healthy bodies, and cannot thrive on protected Internet systems. H.R. 1606 protects the Net. With H.R. 4900, Internet regulation continues to infect the system. The reformers know it. They’re hoping you won’t know it until after Congress votes and moves on to other issues.

Bradley A. Smith, former chairman of the Federal Election Commission, is professor of law at Capital University Law School in Columbus, Ohio. He also serves as senior adviser to the Center for Competitive Politics, and is counsel with the law firm of Vorys, Sater, Seymour & Pease.

Bradley A. Smith is chairman of the Institute for Free Speech and the Blackmore/Nault Professor of Law at Capital University. He served on the Federal Election Commission from 2000 to 2005.


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