Friday evening the FEC made good on its promise to announce new regulations for the Internet—required by the Bipartisan Campaign Reform Act—by the end of March. At this point the proposed regulations seem to be mostly benign.
The Federal Election Commission last night released proposed new rules that leave almost all Internet political activity unregulated except for the purchase of campaign ads on Web sites.
"My key goal in this rule-making has been to make sure that the commission establish clear rules to exempt individuals who engage in online politics from campaign finance laws," said Chairman Michael E. Toner, a Republican.
WaPo reports that campaign ads on weblogs would need to include a "disclaimer" but that there would be few other restrictions for most bloggers at this time. The problem, as I see it, is that these regulations will remain lenient only at the whim of the FEC. The regulations can change with the FEC's fancy, or as their membership changes. In fact, soon as Monday they will be discussing possible changes to the regulations.
The FEC's six members generally support the proposed regulations, but individual commissioners are expected to offer amendments when they meet Monday.
An early warning to the blogosphere from former FEC Chairman Brad Smith, and the fact that current FEC Chairman Michael Toner is apparently sympathetic to blogger's concerns—and is aware of the fundamental importance of the first amendment—has kept the wolves at bay so far. One would think the first amendment would be authoritative enough to prevent the abridgment of our free speech but, based on the history of infringements by McCain-Feingold, legislation is clearly needed to clarify limits on the BCRA.
These proposed "friendly" regulations may have the effect of reducing the vigilance of bloggers on this critical constitutional issue. I hope not. Congress has delayed action on any and all legislation that would prevent the FEC from enacting restrictions on free political speech on the Internet. They cannot be counted on to act on the Online Freedom of Speech Act without continuous—vocal—encouragement.
Update: Captain Ed agrees...
We should not forget that the author of all this silliness, the Bipartisan Campaign Reform Act (BCRA), still remains in force, and that this exemption exists at the pleasure of the FEC. We still need a solid commitment from Congress that will restrict the actions of later FECs in regulating free speech on the Internet. We need to support House bill 1606, which will make the blog exemption an act of Congress that the FEC cannot reverse. Beyond that, we need to restore sanity to the electoral-campaign process by repealing the BCRA (aka the McCain-Feingold Act), forcing all political contributions to be handled alike and in the open, and quit attempting to stifle speech in a vain attempt to purify politics.
Update: On National Review Online, former FEC Chairman Bradley Smith explains the difference between the two main sets of legislation soon to be before the House.
Update: Brad Smith, having at least partly reviewed the FEC's draft, seems mostly happy. His reservations are the same as mine.
The biggest problem with the rules is simply the principle established - the internet is now to be subject to regulation. The FEC can change the rules - extend them - when it wants. My friend and current Commission Chairman Michael Toner put it best most succinctly in a private conversation we had while I was still on the Commission a while back: "Isn't there any area of political discussion that we can just leave unregulated?" The answer, for far too many, in the so-called "reform" community, in Congress, in the MSM and elsewhere, appears to be "no, there is no area of political discussion that should be free from government regulation." So most web activity - except for paid ads - will remain exempt, but as a matter of administrative grace rather than right. Rick Hasen, who runs the widely cited Election Law site, is already disappointed that the rule doesn't require more mandatory disclosure. We can expect "reform" groups such as Democracy 21 and the Campaign Legal Center to regularly lobby for extensions of the FEC approach to regulate more activity...
For those who have been following the action in Congress, the FEC's move largely undercuts any argument to be made for H.R. 4900. It does not undercut the argument for H.R. 1606, which would simply exempt much internet activity from the law. But I expect it will lead Congress to shelve the measure.
After a little more thought I think I can say that the word "reservations" doesn't even come close to the way I feel about this situation.