Prompted by voting problems in Florida and other states in 2000 and again in 2002, the Federal Election Commission has been hard at work evaluating election laws to prevent future snafus. So far so good. But a recent push to extend the McCain-Feingold campaign finance reform law to the Internet raises some serious questions.
When the act was passed in 2002, the FEC voted 4-2 to exempt the internet from its provisions. But last fall, U.S. District Judge Colleen Kollar-Kotelly overturned the FEC's decision when she struck down 15 of its rules regarding campaign finance.
The reversal of the Internet exemption is a big deal for the blogosphere. While print media is generally exempted from campaign finance reform restrictions, bloggers aren't currently granted press exemption. The extension of McCain-Feingold to internet activities means that political campaigns could be required to count online advocacy, hyperlinks to candidate pages and organized email drives as campaign contributions.
The judge's ruling was more or less eclipsed by last fall's presidential election. But this month, the FEC goes back to the drawing board to devise rules for keeping track of online political activities, and McCain-Feingold is back in the news. In an interview at CNET News today, FEC commissioner Bradley Smith explained: "The real question is: Would a link to a candidate's page be a problem? If someone sets up a home page and links to their favorite politician, is that a contribution? This is a big deal, if someone has already contributed the legal maximum, or if they're at the disclosure threshold and additional expenditures have to be disclosed under federal law."
Questions like these raise yet more questions: How would these contributions be quantified, and how would campaigns be expected to keep track of such contributions? What is the point at which free speech ends and campaign contributions begin? Smith agreed that these issues would be hard to administer: "The FEC did an advisory opinion in the late 1990s that I don't think we'd hold to today, saying that if you owned a computer, you'd have to calculate what percentage of the computer cost and electricity went to political advocacy. It seems absurd, but that's what the commission did. And that's the direction Judge Kollar-Kotelly would have us move in. Line drawing is going to be an inherently very difficult task. And then we'll be pushed to go further. Why can this person do it, but not that person?"
And, Smith said, the law could also have an impact on online reporting: "The judge's decision is in no way limited to ads. She says that any coordinated activity over the Internet would need to be regulated, as a minimum. The problem with coordinated activity over the Internet is that it will strike, as a minimum, Internet reporting services I'd like someone to say that unpaid activity over the Internet is not an expenditure or contribution, or at least activity done by regular internet journals, to cover sites like CNET, Slate and Salon." As it stands now, Smith continued, "The statute refers to periodicals or broadcast, and it's not clear the internet is either of those."
Smith voiced concern that the judge's decision will damage grassroots political organizing, and he is worried enough about these matters to issue a congressional call to arms: "This is an incredible thicket. If someone else doesn't take action, for instance in Congress, we're running a real possibility of serious Internet regulation. It's going to be bizarre."