FEC May Exempt Bloggers

Possible Regulations Create Furor on Internet

Posted March 9, 2005 at 6:44pm

Amid a growing hysteria sweeping the Internet over the idea that the Federal Election Commission intends to crack down on bloggers, some FEC officials say they are open to creating an exemption for those who maintain Web logs to ensure they are in no danger of being caught up in the agency’s regulatory framework.

“People have images in their minds that the FEC has black helicopters ready to sweep down on people sitting in their pajamas at their computers. I assure you, we have no intention” of doing anything like that, said Ellen Weintraub, a Democrat who sits on the commission.

Weintraub said in an interview Wednesday that she’s been doing her utmost to calm the tattered nerves of those who fear that the FEC’s upcoming plans to conform campaign finance regulations to a recent judicial ruling would wreak havoc on political bloggers.

The uproar occurred following the publication last week of an interview with Republican Commissioner Brad Smith on CNET News.com, a Web site that covers technology-related issues.

In that interview, Smith warned that because of a judicially mandated ruling related to the Bipartisan Campaign Reform Act “it’s very likely that the Internet is going to be regulated” by the FEC unless “Congress is willing to stand up and say, ‘Keep your hands off of this, and we’ll change the statute to make it clear.’”

Smith suggested the agency could begin targeting such activities as “any decision by an individual to put a link [to a political candidate] on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet.”

Weintraub called such suggestions “rumors” and contends that the myth about the FEC’s intent to regulate bloggers is “just one of these things that somebody throws out there and it takes on a life of its own.”

Indeed, her GOP colleague’s comments sparked outrage among many in the blogging community and beyond.

Rep. John Conyers (D-Mich.), the ranking Member on the House Judiciary Committee, was so concerned about the possibility that he’s been circulating a letter among his colleagues calling on the FEC to carve out an explicit exemption for Web reporters.

“Given the emergence of this new method of reporting and Americans’ increasing reliance on it for their political information, it is critical that BCRA’s press exemption should be clarified to apply to those who are reporting on the Internet,” Conyers wrote in the proposed letter.

“We urge you to remove any ambiguity and make explicit in this rule that a blog would not be subject to disclosure requirements, campaign finance limitations or other regulations simply because it contains political commentary, or includes links to a candidate or political party’s website, provided that the candidate or political party did not compensate the blog for such linking.”

Weintraub said she is “completely open” to the option of “carving out an exemption” for bloggers and said there have already been internal discussions to that effect at the agency — though she doesn’t think the agency had any intentions of regulating blogs anyway.

“I think what the court wanted us to do was rethink the issue of having a total blanket exemption for Internet activity,” the Democratic commissioner explained.

Weintraub agrees with Judge Colleen Kollar-Kotelly that the FEC regulations providing a blanket exemption for Internet activity is “perhaps overbroad,” but insists it “doesn’t mean we want to go whole hog on regulating the Internet.”

Likewise, Michael Toner, a Republican who sits on the FEC, said Wednesday that the rulemaking will provide an important opportunity to “make clear that the commission can take the position that online media activities are protected by the press exemption.”

“There isn’t any basis for government restrictions of bloggers or any other person who’s volunteering for the candidate of their choice online,” Toner said.

The key, he said, will be building on the growing consensus at the FEC to create “bright-line regulations that provide clear and categorical protection for bloggers and other individuals who are involved in grass-roots political activities online.”

But exempting blogs from the regulations might not be as easy at it seems, Smith pointed out.

“What is a ‘blog?’ Who is a ‘blogger?’” Smith asked. “Much of what you do as a reporter would be illegal coordination with a campaign but for the ‘press’ exemption. Bloggers also communicate with campaigns or even reprint things from campaigns. Absent some exemption, all that could be curtailed. But defining a ‘blog’ could be tough.”

Admittedly, FEC rulemakings make many in the regulated community nervous.

“Commission rulemakings can have a momentum of their own,” remarked Brian Svoboda, an attorney with the Perkins Coie LLP Political Law Group.

“I can understand the anxiety about raising the subject generally, because it’s a bit like going into the cave with a stick and trying to wake up a bear,” Svoboda said.

Rick Hasen, a professor at Loyola Law School in Los Angeles who has closely followed the issue on his own election-law blog, said he supports the idea of carving out a “safe harbor” for bloggers.

“A blogger who is engaged in election-related speech and is uncompensated should be able to do things like post campaign materials or link to campaign Web sites without getting caught up in the FEC’s regulatory web of contributions or expenditures,” Hasen said.

Otherwise, Hasen fears, a “chill could be created by the uncertainty of the how the FEC is going to enforce these things.”

Eugene Volokh, a professor of law at the University of California at Los Angeles and editor of the popular Web log “The Volokh Conspiracy,” stated in a recent posting that it would be “good” for the FEC to clarify that “Weblogs and online magazines are exempted” from campaign regulations — though he’s not entirely sure that’s truly necessary.

That’s because the FEC’s current media exemption to restrictions on corporate speech about candidates already applies to “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication,” and he concludes that blogs would qualify in the “other” category.

Democracy 21 President Fred Wertheimer, a strong proponent of BCRA, argued that the ensuing controversy is much ado about nothing: “Kollar-Kotelly’s decision said, ‘If I coordinate with a candidate to buy political advertising that’s a contribution.’ That makes imminent sense.

“Traditional expenditures made in campaigns don’t disappear from coverage of the campaign finance laws because they’re made on the Internet,” Wertheimer said.

While Hasen said he’s not concerned that the FEC rulemaking will lead to a crackdown on bloggers, he’s worried the regulations won’t be clear enough.

“I am concerned that if the FEC deals with nothing more than Internet advertising and we end up seeing multiple complaints against bloggers in 2006, that the existing framework is inadequate,” Hasen said.