Congress Should Find a Way to Protect the Internet
Today is the day the House will consider a bill sponsored by Rep. Jeb Hensarling (R-Texas) intended to remove the Internet from certain campaign finance restrictions on “public communications.”
There are procedural questions Members will debate and should resolve as they will, including the timing of the vote on short notice and the use of the suspension calendar for this purpose. But there will also be claims made that the passage of the bill will threaten the viability of the Bipartisan Campaign Reform Act, namely that if the Internet is liberated, corporations and other monied malefactors will have new opportunities to evade the law and purchase undue influence.
This is nonsense. The bill merely follows what the Federal Election Commission originally prescribed for the Internet, and what others, such as Senate Minority Leader Harry Reid (D-Nev.), have independently proposed — protection from the application of campaign finance restrictions to a medium correctly described by the FEC as “a bastion of free speech.” A law designed to limit the machinations of great wealth is not properly used to restrict the use of a medium that is virtually free of cost and both widely available and accessible.
This is how the FEC viewed the issue, only to be challenged, successfully, in court. The court did not invalidate the rule altogether, holding only that the agency had not properly explained it. The FEC declined to appeal and it is now struggling to fashion a new rule.
It is a valiant effort, but not without its peculiarities: Under the proposed rules, those who would use their office laptops, even at home, to send political e-mails would be presumptively limited to one hour a week or four hours a month for borrowing company equipment for this purpose. Any more than this would, it is suggested, raise the risk of corporate collusion in the conspiracy to influence the political process.
Opponents of the Hensarling measure have suggested other dangers, murky in their details but meant to suggest that the Internet poses a threat to clean government. Their favored hypothetical is that of a corporation conniving with a candidate to produce an expensive promotional video, paid with corporate dollars and then posted on some site for a fee (also paid by the corporation). It is claimed this would, if a measure like Hensarling’s passes, escape enforcement under BCRA.
But this is not so – not at all. The violation described here takes place at the source, upon the expenditure of corporate funds to influence a federal election. Other provisions of the law, including those that prohibit such corporate (or union) spending, would remain unaffected by any amendment restoring the original amendment to exempt Internet.
What is at stake here? For years, proponents of campaign finance regulation have insisted that their purpose is to limit money, not speech, and that the evils targeted by the law are those presented by large, moneyed interests with the inclination and capacity to dominate the political process. Proposals to regulate the Internet strike out in a different direction: Now the law draws ever closer to pure speech, and those affected are the many millions of Americans who now tap out their political communications at home, on their keyboards, sometimes alone and sometimes in passionate association with others. This is a major change in campaign finance policy, and the very prospect of it explains why left and right have joined together to resist. On this issue, the Web log Daily Kos stands alongside RedState.org.
The FEC has noted that at the time it wrote the original exemption, it sought views from Congress about whether this approach was consistent with Congressional intent. It heard nothing then. The issue was then wrestled from the agency by reform litigants and the courts. At some point, whether now or later, Congress will have to settle the question, since it is one that, affecting the rights of speech and the association of millions, should not be left to an insular argument involving only the reform lobbying community, “experts,” and an administrative agency.
This is one campaign finance question that many people outside the Beltway, and not only the usual suspects within it, will follow and understand, and no more need be said about its significance. And if a somewhat political observation is in order, it would be this: that it is not to either party’s advantage to yield leadership on this issue to the other.
Robert F. Bauer is chairman of the Political Law Group at Perkins Coie.