What, Not Where Should Govern Internet Postings

Posted July 18, 2008 at 2:53pm

On June 24, Rep. Mike Capuano (D-Mass.) sent a letter to House Administration Chairman Robert Brady (D-Pa.) urging the committee to update its guidelines governing Member Web sites. While Capuano’s proposal improved the status quo, it ignores the current practice by House Members.

A much simpler principle would have sufficed: What matters is what you say, not where you say it. That would reflect the reality of current practice and be appropriate to the “new” media and the changing economics of the “old” media. Furthermore, these answers are implied by a letter by Speaker Nancy Pelosi (D-Calif.) to Minority Leader John Boehner (R-Ohio), as posted on the Speaker’s office blog, The Gavel.

Bloggers — conservative, liberal and technical — along with the nonpartisan, pro-transparency Sunlight Foundation, and key Republicans objected to various aspects of Capuano’s proposal. Similar rules were considered in the Senate Rules and Administration Committee, and movement in both bodies has since stopped.

Let me briefly summarize Capuano’s proposal, its problems, and a simple content-based solution. That solution would allow Members to communicate with the public using today’s Internet tools. Capuano made the proposal as head of the franking commission, which operates under the House Administration panel.

Capuano proposed four conditions for posting video and, perhaps, other content — although his letter was unclear on this point — on various Web sites.

First, content would have to be clearly labeled as official House content and comply with House content rules. Second, “to the maximum extent possible,” material should not be posted on sites where it would appear next to commercial and/or political content because it may then be linked to such content in an “endorsement.” Third, links to content outside of the House official Web sites must provide an exit notice that the user is leaving the House. And, the “Office of Web Assistance or other designated House entity” would maintain a list of approved sites.

The most important objections to Capuano’s proposal were to the endorsement and approved sites measures. The idea of protecting against a perceived endorsement by political or commercial entities was expressed by Pelosi in her letter as a “responsibility to ensure that taxpayer dollars are not used for political or commercial purposes.”

In response to the endorsement provision, Boehner posted on his leadership blog a screen capture of a Capuano opinion piece in the Boston Globe. In the online edition, the Globe had multiple ads above, next to, and in line with Capuano’s submission. No reasonable person would argue that Capuano endorsed, in a commercial sense, the Globe, these ads or their products or causes. Why would someone think that about a posted video?

In a time when traditional media are in transition, the Globe is trying to monetize its online readership just as online video services are trying to monetize online viewers. Why should House rules allow newspapers to monetize opinion pieces, but not allow YouTube to monetize video content? These rules simply do not correspond to the reality of online news outlets.

This is a telling example. The new rules have to be updated not only for the “new” media, but also for the new economics of the “old” media.

In defense of Capuano’s proposal, Pelosi notes that she already uses many of the tools being discussed. Right now, leadership offices are not constrained by the same rules governing Internet activity as are rank-and-file lawmakers. That’s because leadership offices are funded by the legislative branch appropriations bill, whereas Members’ Representational Allowances fund Member offices, giving the House Administration Committee jurisdiction over cyberpostings.

But the issue should be the same. Does anyone argue that Pelosi’s use of YouTube, Flickr or other services constitutes an endorsement of a product that might appear in an advertisement on one of their Web sites? No. Why would that then become an objection for Member offices?

Just as Pelosi’s Internet activity does not seem problematic, neither is the activity currently engaged in by nearly 100 Members, as determined by a survey of Member sites. All of these practices are currently in violation of the rules of the House Administration Commission and the franking commission.

As one technical blog, TechDirt, noted, when Rep. Kevin McCarthy (R-Calif.) raised that issue, “Other Congressional Reps. told him to not worry about it as everyone ignored that rule, and no one would get in trouble for using various social media sites such as YouTube.”

So what is the right answer? The main requirement should be on content, not form or forum. Members should be allowed to use any service or Web site, paid or unpaid, on the same terms as the general public, so long as the content complies with franking and other rules.

These new rules would be consistent with current standards on paper opinion pieces and would reflect the changing realities of the news business. Might YouTube make a little bit of money off of lawmaker videos? Perhaps, but no one is concerned about Capuano’s Boston Globe piece, to which the same objection applies.

New rules based on this principle would also recognize and legitimize the current practice of nearly 100 Member offices that now stand in violation of House Administration guidelines. This would also end the different treatment of leadership and Member offices. In doing so, these rules would further address the concerns of LetOurCongressTweet.org, the Sunlight Foundation’s response to this question.

Simple content-based rules would allow Members to communicate with their constituents and the public without putting an undue burden on the House, Members, companies who host content or the general public. Pelosi said, quite correctly, that these “are vital tools toward increasing transparency and accountability.”

Soren Dayton, a manager for New Media Strategies, blogs at TheNextRight.com and Redstate.com.