The Other Side of the FEC
By Erick Posted in FEC — Comments (8) / Email this page » / Leave a comment »
Trevor Potter, a former attorney in the Reagan Justice Department and former Chairman of the FEC, issued a response tonight to Brad Smith.
Trevor and I, it is safe to say, do not agree on campaign finance reform. Trevor supported BCRA and I certainly opposed it. That said, Trevor (who I only know through an email listserv) is very sincere and is not given to hyperbole. So, while he and I may disagree on BCRA, if he says something, I take it with a great deal of credibility and you should too.
Read on . . .
With his permission, here is a statement from Trevor that he sent out on an election law listserv.
Commissioner Smith's interview does a good job at providing misinformation on the subject of the Internet and the FEC, as it was obviously intended to. Under the FEC regulations supported by Smith last year, PAID Internet advertising was not considered a 'public communication' and therefore could be paid for by soft money without limit or disclosure. The same applied to Internet Advertising by State political parties. NEITHER OF THESE HAS
ANYTHING TO DO WITH BLOGGERS OR AVERAGE CITIZEN USE OF THE INTERNET!After a Federal judge threw out these Smith-supported exclusions for paid advertising on the Internet, the FEC was ordered to open a rulemaking on the question of advertising on the Internet. The Commission has NOT yet even put out any options for consideration--when they do so there will be opportunity for lots of public comment. The Commission will have plenty of opportunity in the course of the rulemaking to distinguish between political candidate or party Internet expenditures (which should be subject to federal campaign
finance law like any other expenditure they make, or which is coordinated with them), and completely unregulated activity by bloggers, Internet news services, and citizens acting on their own.There is NO REASON AT ALL that this FEC rulemaking should attempt to regulate bloggers, Internet -based news entities, or average citizens sitting at their PCs, and I have great faith it will not. I personally have represented several Internet-based groups in the past several years in obtaining Advisory Opinions from the FEC making it clear that their activities are NOT covered by federal election law.
What Brad Smith is trying to do (along with other opponents of campaign finance reform on issues like 527 legislation) is scare people into thinking the sky is falling, and stampede everyone into objecting before the FEC rulemaking has even begins. Particularly telling is his urging Congress to over-rule the federal district court opinion on paid Internet advertising.
Having had his (and the FEC's) unsupportable exemption for paid advertising repudiated by a federal court, he now wants to do an end run around that Court decision.My suggestion is that those of us who care about keeping Internet political activity free from intrusive regulation but ALSO believe in the campaign finance reform effort to keep soft money and corruption out of politics PARTICIPATE in the FEC rulemaking, and ensure the FEC gets it right this
time.For more information on the history of FEC regulation and deregulation of the Internet, see my Chapter in the Brookings Institution's New Campaign Finance Sourcebook here at Chapter Nine.
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The Other Side of the FEC 8 Comments (0 topical, 8 editorial, 0 hidden) Post a comment »
While I see where Trevor Potter is coming from and certainly think that the view opposed to Smith needs to be aired too, here's my concern:
The internet advertising that Trevor refers to are on just the little ads that were on Slate and other places, but also the made for internet ads that circulated through email, etc. What if I, a blogger, put one of those up on my site as many did in 2002?
If I understand the judge's opinion correctly, (and again, Trevor Potter is a smarter lawyer than me) my putting up of a BC04 internet ad, or a link thereto, would be some kind of donation to the BC04 campaign and thus a reportable event. A reportable event equals the potential exposure to fines.
The problem here is that what I am essentially doing is volunteering my time. The 1's and 0's really don't cost too much. How is what I'm doing different from going door to door as a volunteer? That is something that must be answered.
And that is why I am very wary of drafting any regulations dealing with the internet.
of this issue. Regulators could begin by regulating paid internet advertising and then reason by analogy all the way through an extensive list of "in kind" contributions that would take us into the brave new world of "government approved political communication". The frightening thing is not that this will happen immediately; it is that there is really nothing save the present absence of a will to get a little creative and do it holding them back. Let them find that will, or let someone give them an excuse, and we'll not be all that much different from, say, China. And China is hardly worth emulating in that respect.
I have a corner yard that is well suited for billboards. I don't have a company, but I occasionaly rent out a billboard to make some extra income. I decide to donate some ad space to a campaign - I have to report that as in-kind, no?
from regarding your donation as an in-kind contribution to regarding a similar sign, erected without any coordination with the campaign, as an in-kind contribution. You obviously intend to support candidate x either way, so....
First they came for the PAID internet political advertisers, and I said nothing, because I wasn't paid...
Yes.
But that's a large "if."
First they came for the OFFLINE supporters....
All regulation of individual political speech is evil, and I don't quite get how some people are trying to hold up online speech as somehow being more worthy of exemption from government regulation than offline speech like billboards.
If Trevor addressed what the real danger is - crafting a rule to address political spending on the internet can only lead to similar regulating of so-called in-kind expenditures. Hence, the danger. Any attempt to apply offline rules seems (to me, the lay guy) that it can only result in restricting bloggers - at the VERY least, to force them into reporting. (accountants and lawyers, anyone)
I'm sorry - in the history of campaign finance "reformers" they don't have a lot of credibility when they tell us that there's nothing to fear.