BCRA and the Web

Posted March 25, 2005 at 5:36pm

After making a serious wrong turn — and getting slapped down in court for it — the Federal Election Commission is on the right track in its approach to regulating political advertising on the Internet, though it’s still far from its final destination.

The wrong turn occurred in the FEC’s initial rule-making exercise following the passage of the Bipartisan Campaign Reform Act in 2002. The agency’s initial rule completely exempted the Internet from BCRA coverage, creating a loophole through which corporations, unions and rich individuals could pour soft money into Internet ads even as BCRA banned them from doing so in print publications or on television.

This ran parallel with the FEC’s permissiveness toward 527 political committees, with one significant exception: Congress was silent about 527s. But during debate on BCRA, the House defeated an amendment sponsored by House Majority Leader Tom DeLay (R-Texas) that would have entirely exempted the Internet from coverage.

When the FEC nevertheless imposed a blanket exemption, BCRA’s sponsors filed suit, and last September U.S. District Court Judge Colleen Kollar-Kotelly sided with them. Now the FEC is writing a new rule that it hopes to have in place by the 2006 election.

In the FEC’s draft ruling, in a request for public comment and during a meeting last week, commissioners indicated that they now want to do it right — to ensure that bloggers and others communicating on the Internet have the same free-speech rights that newspapers, radio and television enjoy, while at the same time regulating political advertising on the Internet.

There’s been a tendency in some quarters to treat the Internet with maximum permissiveness — by exempting Web commerce from sales taxes, for instance. But while regulators are well advised not to strangle an infant industry, it has become clear, at least when it comes to politics, that the Internet is coming of age. Blogs are now almost as influential as newspapers, or at least as influential as newspaper editorial pages. And this is a great development for free speech and opinion diversity.

Still, you can just see what’s coming next: an effort by entities otherwise banned from raising and spending soft money to exploit the medium on an unlimited basis. That, as we understand it, is what the FEC is trying to stop.

Some commissioners, Members of Congress and independent experts continue to express concern that the FEC will go too far and inhibit the robust expression of opinion. But, as Ellen Weintraub, a Democratic FEC commissioner, put it, the draft rule would “make clear that the media exemption applies to the Internet.” She added that “some of the most spirited debates that have taken place in the course of preparing this notice have concerned how best not to regulate certain activities, such as blogging.”

Last week, BCRA’s Senate sponsors, John McCain (R-Ariz.) and Russ Feingold (D-Wis.), wrote the FEC that they “are confident that the Commission can find a way … to allow unregulated and robust political debate on the Internet … without creating loopholes for soft money to once again flow into federal campaigns.”

So are we.