October 14, 1999 2:25 PM PDT
FEC rethinks Net's role in politics
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So far, no rules have been formally approved that target the Web, creating enormous uncertainty for those engaging in online political activities.
"All we can do right now is what the current regulations stipulate, and we're trying to apply those as best we can to the Net," said FEC press officer Ron Harris. "I think we're going to see something come out in the next couple of months, and my personal opinion is that after the 2000 election things will really crank up from a rule-making standpoint."
FEC commissioner David Mason has called for public inquiry into how the Net is changing the political process, which could lead to an official rule-making procedure. And this week the Senate is considering a campaign finance reform bill that includes an amendment that would exempt individuals who talk politics online from the FEC regulations.
Already the FEC has updated its federal contribution matching rules to include credit card donations made via the Net. Still, it's not clear what type of online political speech could get snarled in FEC regulations.
Underscoring the problem is an escalating debate over whether Web sites fall under a 1971 campaign disclosure law governing television advertisements. If so, sites promoting federal candidates or linking to official campaign sites might be required to disclose who is behind a site and report expenditures for erecting the site if they exceed $250.
The agency has indicated it might enforce such an interpretation. But free speech advocates argue that the Web should be treated differently from television, particularly in determining the costs related to setting up a Web site that posts political content. In the past year, the agency has issued several advisory opinions based on specific cases that lump the Internet in with rules for television advertisement and campaign finance reporting.
A November 1998 opinion, for example, states that a Web site erected by Leo Smith of Suffield, Connecticut, fell under the disclaimer and reporting requirements. Smith's site advocated the defeat of the Rep. Nancy Johnson (R-Connecticut), and endorsed her opponent, Democratic candidate Charlotte Koskoff.
In reference to Smith, the commission concluded that Web sites endorsing or soliciting funds for federal candidates are considered political advertisements and must disclose the full name of the site's creator, state whether the opinions expressed on the site are authorized by the candidate, and report expenditures.
"The Commission notes that there are minimal costs associated with creating the Web site," the opinion stated. "These overhead costs would include, for example, the fee to secure the registration of a domain name, the amounts you invested in your hardware, and the utility costs to create the site."
In another opinion regarding the Secretary of State for Minnesota's Web site, the FEC concluded that nonpartisan Net sites that link to candidates sites do not have to report expenditures.
But Smith, who scoffed at the FEC's threat of legal action for noncompliance, says he has the right to express his political views anonymously on the Net.
"The right to anonymous free speech applies to me, but I have to put a disclaimer up," Smith said today. "I didn't buy anything specifically to engage in political activity online. If they can place these conditions on free speech in this case, there is nothing to stop them from doing it in other areas."
Despite the handful of advisory opinions relating to the Net, the American Civil Liberties Union and other groups also are worried about the uncertainty and are lobbying Congress to pass the exception for online political speech. Advocates also are calling on the FEC to hammer out new rules that consider the unique nature of the Net.
"These are real barriers to giving individuals voice," said Ari Schwartz, a policy analyst for Center for Democracy and Technology (CDT).
In a September report, called Square Pegs and Round Holes: Applying the Campaign Finance Law to the Internet--Risks to Free Expression and Democratic Values, the CDT went on to say that, "Registration requirements triggered by contributions, designed to shed light on the influence of donors on elected officials, may on the Web force individuals engaged in the online equivalent of pamphleteering or posting a sign in their front yard to identify themselves to the federal government and the public at large."
The organization said the FEC could categorize online political speech under "volunteer" activity and exempt hyperlinks on political sites from the endorsement rules.
"Just as the FEC does not count the value of a volunteer's automobile when the volunteer drives to campaign headquarters to pick up yard signs, so the FEC should not count the value of a volunteer's computer when the volunteer creates a Web site supporting the candidacy," the CDT stated.