Blogs Bloggers BCRA Campaign Finance Law FEC Freedom of Speech & Press

VoteLaw has a posting about a one-page order just issued by the U.S. Court of Appeals for the D.C. Circuit which has "declined to reconsider a decision requiring the FEC to write new rules to carry out a 2002 campaign finance law". Reference is made to a Boston Globe AP article of October 24, 2005 titled "Appeals court declines to review decision on campaign finance rules".

This is a development of utmost importance to blogging. What is the background?

The Bloglines Blog (see also WingedPig) has a posting about the fact that the FEC (Federal Election Commission) has been reviewing regulations concerning political speech on the Internet, including blogging.

The Committee on House Administration held a hearing on the topic on September 22, 2005.

The issues involved are found in this statement by Committee Chairman Robert W. Ney which we have excerpted:

"The Committee is meeting today to hear testimony on the subject of regulation of political speech and activity on the Internet....

The Bi-Partisan Campaign Reform Act (McCain-Feingold or BCRA) required the Federal Election Commission (FEC) to develop regulations to implement the Act. The Commission determined that Congress did not intend for BCRA to cover Internet communications and, therefore, adopted regulations that exempted them.

Congressman Shays and Meehan, believing the FEC regulations did not follow the intent of BCRA, sued the Commission. The Court [see material below] agreed with the Congressmen, and ordered the FEC to rewrite the rules.

As a result of this lawsuit and Court decision, the FEC was forced to rewrite the rules that cover communications on the Internet. That new rulemaking began in March 2005.

While this new rulemaking was going on, some Members of Congress were making clear that they did not intend for BCRA to cover the Internet, and that they did not want the FEC regulating these communications. In March, Congressman Conyers and 13 of his colleagues wrote to the FEC seeking an exemption for web logs or blogs....

Identical bills were also introduced in both bodies to preserve the exemption – in the Senate by Minority Leader Harry Reid and in the House by Jeb Hensarling (R-TX). Their bill language was adopted by this committee, and included in H.R. 1316, the Pence-Wynn bill, reported by the committee on June 8, 2005.

These bi-partisan congressional endorsements of the exemption show there still some issues on which both sides of the aisle can agree. We’ll later hear from two witnesses who operate blogs, one conservative and one liberal, who probably do not agree on anything except that they do not want the FEC to be regulating what they say or do on their websites.

The debate here then is not between Republicans and Democrats or liberals and conservatives. Instead, the debate here is between those who favor regulation and those who do not...."

The court decision in question was described at the hearing by Scott E. Thomas, Chairman, Federal Election Commission as follows [we quote footnote 1 at the linked source]:

"The U.S. District Court for the District of Columbia concluded that the Commission’s broad Internet exemption would “severely undermine [the Federal Election Campaign Act’s] purposes,” and would permit “rampant circumvention of the campaign finance laws and foster corruption or the appearance of corruption.” Shays v. FEC, 337 F. Supp. 2d 28, 70 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005), petition for rehearing en banc filed (Aug. 29, 2005). Though the district court held some 15 regulations invalid, it nonetheless indicated that pending resolution of the litigation and adoption of needed revisions by the FEC, the challenged regulations remain in effect. Shays v. FEC, 340 F. Supp. 2d 39, 54 (D.D.C. 2004)."

This is the court decision which the D.C. Appeals Court declined to reconsider.

Here are the issues:

Thomas points out in his testimony that the Internet should be regulated by the BCRA because the Internet is becoming a major player on the political scene.

Vice Chairman Michael E. Toner of the FEC testified that political speech on the internet should not be regulated and that the BCRA was never intended to apply to the internet.

Commissioner Ellen L. Weintraub of the FEC emphasized that "the focus of the FEC is campaign finance. We are not the speech police." Hence, Weintraub indicates that the proposed rules will in fact regulate the internet, but that substantial exemptions will be made.

Bradley A. Smith, Professor of Law at Capital University Law School, and former Chairman of the FEC, testified that the "the on-line community has reason to be concerned" and that "there is a sizeable and powerful lobby both in and out of Congress that clearly wants to regulate the internet....A regulated internet will strengthen those who already have political power and influence; a deregulated internet will boost the influence of ordinary Americans who just want to play by the rules...." Smith particularly points to the inherent conflicts created between internet regulation and press freedom, the resolution of which is a controversial matter. For the position of blogs, see The Volokh Conspiracy.

Lawrence Noble, Executive Director and General Counsel of the Center for Responsive Politics, testified that: "There is little doubt that the Internet can be used in much the same way television, radio and the print media have been before; as an avenue for the spending of large amounts of undisclosed soft money to finance various forms of political ads aimed at electing or defeating Federal candidates. "

Michael J. Krempasky of RedState.org provided testimony from one side of the political spectrum of blogging and Duncan Black of Eschaton provided testimony from the other side. Both stated that blogs should be exempted from the BCRA.

Some links to the history of this topic are:
CNet News.com
beSpacific
Volokh Conspiracy
pbaHQ
CDT
In the Agora
Michelle Malkin
Democracy Project
InstaPundit
Ask Jeeves Blog
Captain's Quarters
Bainbridge
Patterico
Newspaperindex

Given this court decision and barring Congressional action, there will now be much, much more about this matter on the blogosphere, you can be sure.

Technorati Tags:

internet law, political speech, campaign contributions, blogs, blogging, bloggers, freedom of speech, freedom of the press, FEC, Federal Election Commission, Campaign Finance Law, Campaign Reform Act, BCRA, legal, House Administration, Committee on House Administration, McCain-Feingold, Pence-Wynn, communications, Internet, Kaulin, web logs, campaign finance, online community, internet regulation.

Crossposted to LawPundit.
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