Setting The Record Straight on HR 1606
By Michael Toner Posted in FEC — Comments (3) / Email this page » / Leave a comment »
specific charge is that the Hensarling bill, if passed, would allow federal
candidates to coordinate with corporations and unions to spend soft money
funds to purchase Internet banner and video ads on behalf of candidates.
This charge has no legal foundation. ”
The author is the Vice Chairman of the Federal Election Commission. We thank him for his clarity and expertise on this issue. - The Editors
The House Leadership has announced that it plans to bring back to the floor
in the coming weeks the Online Freedom of Speech Act (H.R. 1606) sponsored
by Rep. Hensarling. The Hensarling bill would codify the FEC's current
regulation, which was struck down by a federal judge, that exempted the
Internet from the many prohibitions of the McCain-Feingold law.
The FEC
regulation was based on the plain meaning of the McCain-Feingold law,
specifically the definition of “public communications.” There, Congress
identified a large number of mass media that, as “public communications,”
would be subject to McCain-Feingold's many restrictions --including
broadcast, cable and satellite communications, newspapers, magazines, mass
mailings, telephone banks -- even “outdoor advertising facilities” are
mentioned. The bottom line is that virtually every type of mass media in
America was identified by Congress in the statute, except for one: the
Internet.
In light of the plain meaning of the statute, the FEC properly
exempted the Internet from the McCain-Feingold law. The FEC's action was
based on the view that Congress's omission of the Internet from the
definition of “public communications” was not an accident or oversight, but
rather a conscious, informed judgment by Congress that the World Wide Web
should not be subject to the many restrictions that McCain-Feingold applies
to other types of mass communications, such as TV and radio. The Hensarling
bill would accomplish by statute what the FEC sought to do by regulation,
and I strongly support the legislation.
One of the primary objections to the Hensarling bill has been the
contention that the bill, if passed, would open the floodgates to unlimited
corporate and union money being spent on Internet activities to benefit
federal candidates and in coordination with federal candidates. One
specific charge is that the Hensarling bill, if passed, would allow federal
candidates to coordinate with corporations and unions to spend soft money
funds to purchase Internet banner and video ads on behalf of candidates.
This charge has no legal foundation.
As noted above, the FEC's regulation
exempting the Internet was based on its interpretation of the statutory
definition of “public communications” in the McCain-Feingold law. However,
neither the FEC's regulation, nor the Hensarling bill, in any way touches
the broad statutory prohibition found at 2 U.S.C. Section 441b that bars
corporations and unions from making expenditures in connection with federal
elections (with specific, enumerated exceptions, such as for communications
to corporate and union “restricted classes”).
This prohibition, which pre-dates McCain-Feingold and has been on the books for decades, is an
independent bar on the use of corporate and union general treasury funds in
connection with federal elections. If a corporation or union coordinated
with a candidate to spend soft-money funds on Internet banner or video ads
on behalf of a candidate, a violation would occur under Section 441b when
the expenditure of funds is made.
As Bob Bauer has correctly pointed out,
the violation arises out of the activity's connection to a federal
election, and from coordination with a federal candidate, and not from the
subsequent use of the funds on the Internet. And the violation would take
place regardless of what the FEC or Congress decided was the scope of
“public communications” under the McCain-Feingold law.
The Hensarling bill should be decided on its own merits and not based on
charges and counter-charges that have no legal basis. I am hopeful that
Congress will act in the weeks ahead to codify the FEC's exemption of the
Internet from the McCain-Feingold law and take a key step in protecting
on-line politics.
« Financing the General Election — Comments (6) | My Thoughts on the Online Freedom of Speech Act, HR 1606 — Comments (3) »
Setting The Record Straight on HR 1606 3 Comments (0 topical, 3 editorial, 0 hidden) Post a comment »
How did the McCain-Feingold law get around the 1st Ammendment? HR 1606 is just the another big nail in the coffin of free speech.
Clearly, I am missing something, but I suspect this is a the result of negotiating in ever decreasing circles - ending a dark, sun-deprived place.
In my estimation, the internet is the best thing since sliced bread. Amongst it's many positive espects, here is the opportunity for joe citizen to really have access to government, have a public voice and affectively participate. Apparently, some people are too frightened to have to form an opinion based information spoon fed to them from the established media - Krempasky was too generous to reply to one such viewer that wanted the internet to be totally regulated to control all those self-appointed "experts". It doesn't surprise me that folks like that are apparently terrified of the extrodinary potential and impact of a "new" technology such as the internet.
I could go on..... it is clear that politicians are increasingly seeing the power of the internet . I am optomistic that the internet will prevail no matter what happens to HR 1606 - I seriously doubt global control of the internet is possible!
I don't see anybody beating hoof to defend the rights of other people to speak their mind. An example, along a busy stretch of coastal highway here in Oregon, a private landowner posts his political opinions on a billboard. A similar one is along I-5 in souther Washington. My half-brother occasionally buys radio ad time in Tucson just to get his opinions out there. Those are not allowed near election time under McCain-Feingold.
Why are these forms of speech less precious to us? Because they are less common? Because we don't use them?
Do we act on principle, or just temporary expediency? Or do people just actually think McCain-Feingold is acceptable?
I just wanted to thank Mr. Krempasky this morning for the info I learned on C-Span and explaing the vote that happened in the House on Wed. I think it was. I read a little bit about it and it was not explained well by the author on a blog...I didn't understand how a majority vote could lose in the house, never heard of it...so thank you again, plus all I learned about the need for the FEC to get this right and taken care of this, it is so important for bloggers freedom. People need to get involved in this too and contact their represenatives.
You actually had it pretty easy this a.m., only a couple loony lefty nit-wits who are rabid. Most the time it is alot more.
Anyway thank you again for the info. I will be going to the site and signing it also that you gave....this is very important for the left and the right and those in-between, (if there really is such a thing.)