July 12, 2014

Congress Should Pass Hensarling’s Bill on Politics and the Internet

The House of Representatives is scheduled to take a final vote this week on the Online Freedom of Speech Act, sponsored by Rep. Jeb Hensarling (R-Texas). If enacted, the Hensarling bill would be a crucial first step in protecting and preserving the freedom of online politics in this country.

The Hensarling bill would codify the Federal Election Commission’s current regulation, later struck down by a federal judge, exempting the Internet from the prohibitions and restrictions of the McCain-Feingold campaign finance law.

The FEC regulation exempted the Internet based on the plain meaning of McCain-Feingold’s statutory definition of a “public communication.” Congress identified a wide array of mass media that would be subject to regulation — including broadcast, cable and satellite communications, newspapers, magazines, mass mailings, telephone banks and even “outdoor advertising facilities.” Notably, Congress did not refer to the Internet in this key statutory provision of McCain-Feingold. Congress identified virtually every type of mass media in America except for one: the World Wide Web.

In keeping with the plain meaning of the statute, the FEC properly exempted the Internet from the McCain-Feingold law. The FEC viewed Congress’ omission of the Internet not as an accident or oversight, but rather as a conscious, informed decision that the World Wide Web should not be subject to the many restrictions that McCain-Feingold applies to other types of mass communication.

In addition to the plain meaning of the statute, there is no evidence in the legislative history that Congress intended to regulate or restrict online politics when it enacted McCain-Feingold. Given that such a result would potentially affect the activities of millions of online activists, the fact that there was no floor discussion of the subject is powerful evidence that Congress did not intend to restrict the Internet when it enacted McCain-Feingold.

Regrettably, a federal judge in Washington, D.C., disregarded the plain meaning of the statute and invalidated the FEC’s regulation exempting the Internet from McCain-Feingold. The judge also ordered the FEC to open a rulemaking to consider broadening regulation of political activity on the World Wide Web. The Hensarling bill would overturn the judge’s erroneous ruling and would codify by statute the FEC’s regulation exempting the Internet.

Many prominent Members of Congress who voted for McCain-Feingold have endorsed this result. Senate Minority Leader Harry Reid (D-Nev.), the lead sponsor of a Senate companion bill to the Hensarling legislation, sent a letter to the FEC expressing “serious concerns” about the commission’s Internet rulemaking that was initiated in response to the judge’s decision. Reid noted that the Internet “has provided a new and exciting medium for political speech” and that “regulation of the Internet at this time, with its blogs and other novel features, would blunt its tremendous potential, discourage broad political involvement in our nation and diminish our representative democracy.”

In addition, Sen. John Kerry (D-Mass.) and then-Sen. John Edwards (D.N.C.), both of whom voted for McCain-Feingold, filed written comments with the FEC during its rulemaking proceeding, stating categorically that “Congress did not intend to create new barriers to Internet use when it passed [McCain-Feingold].”

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