At the end of the first of two days of hearings on how — or if — the Federal Election Commission is going to regulate political activity on the Internet one thing was clear: The idea provokes a near-universal disquietude even among those who have traditionally embraced increased regulation as a way to mitigate the corrupting influence of money on federal campaigns.
The discussions are pulling FEC commissioners in a number of different directions. While a federal court has required it to put new strictures on Internet campaigning, Congress — while largely hostile to Internet regulation — hasn’t explicitly told the FEC not to do it, and the agency itself is divided as to whether such regulations are necessary or wise.
All the while those potentially affected by such regulations are expressing confusion about why the federal government wants to monitor what they say on their blogs. And those who wrote and supported the law that led the FEC into this quandary in the first place are wondering whether the whole campaign finance structure they created could come crashing down in a loophole as big as the Internet itself.
If the commissioners’ comments during Tuesday’s hearing are any indication, however, all interested parties may be able to find some solace. Although the degree of their opposition varied with political ideology, the commissioners in general seemed to lean strongly against taking an entirely pro- or anti-regulation stance.
“I think the natural tendency of the FEC is to avoid conflict, not necessarily internally but with the outside world,” said Larry Noble in an interview after his testimony. Noble, a former general counsel to the agency and now executive director of the Center for Responsive Politics, was one of nearly a dozen experts representing an array of perspectives to testify Tuesday.
Many observers believe the agency will find some middle ground in drafting regulations, possibly treating paid political ads on the Internet as regulated campaign activity while carving out an exemption for individuals engaged in political activity online and/or expanding the current media exemption to less traditional journalism, a role many bloggers believe they fulfill.
Don Simon, counsel to Democracy 21, a group that has supported further regulation of campaign financing, asserted in his testimony that “everyone agrees” that individuals should not be regulated on their Web sites or blogs: “The question is how do you get there? And what exemption do you apply?”
Simon’s comments reflect an acknowledgment that the prospect of the FEC regulating political speech on individual Web sites is neither politically palatable nor necessarily authorized by the Bipartisan Campaign Reform Act, the 2002 law that led the FEC to this rulemaking.
A federal district court last year struck down many of the regulations drafted by the agency, however, including what the court determined to be a too-broad exemption for political activity on the Internet.
“Doing nothing is not an option,” Simon said, noting that the FEC is acting pursuant to a court order.
But FEC Vice Chairman Michael Toner, a Republican, is not so sure. In his opening remarks Toner outlined why he believes the FEC doesn’t necessarily have to act now. The D.C. District Court’s decision is currently on appeal before a federal appeals court, he said, adding that he remains skeptical BCRA requires the commission to regulate online campaign activity.
“The plain meaning of the statutory language supports this conclusion,” he said, citing all of the types of media Congress outlined when it defined “public communication” and noting that the Internet was not included on that list.
Regardless of what Congress intended in 2002 with BCRA, there is momentum in both chambers to explicitly exempt Internet activity from the FEC’s reach. Differing pieces of campaign finance legislation passed out of committee in both the House and the Senate would prohibit the FEC from drafting any such regulation, eliminating any statutory ambiguity and taking the federal court out of the equation.
It seemed at the hearing that many commissioners would welcome the relief. Responding to a suggestion by Peter Bearse, a conservative economist, Commissioner Ellen Weintraub, a Democrat, responded that even if the FEC wished to, “We cannot remand anything to Congress.” She explained the agency can “suggest” statutory clarifications and does so annually but noted the commission has a “checkered history” of getting them enacted.
In the meantime, given the current combination of a court order and silence from Congress, the FEC is left to muddle its way through often sharply conflicting opinions while wading into a medium that has been almost entirely untouched by regulation of any kind.
“Any time you regulate, whether you regulate a lot or a little, you send a message to the community that there are traps to be avoided,” said Mark Elias, who served as general counsel to the Kerry-Edwards presidential campaign. “Quite frankly, this is a rulemaking in search of a problem.”
“I think we’re going to see in 2006 a lot more money being spent on the Internet by a lot more traditional groups. I think we’ll see the evolution towards more sophisticated, more professionally run and more traditional political activity on the Internet.”
And then there were the bloggers. Almost without exception, those who usually testify before the FEC are “Beltway types,” but this week’s hearings included a sizeable portion of expert witnesses who don’t run advocacy organizations, national campaigns or public interest groups. And to most, if not all of them, the whole concept of appearing before a federal agency to represent why the government couldn’t and shouldn’t regulate their activities seemed a little dumfounding.
“I feel like I am speaking a different language here,” said Matt Stoller, who founded a Democratic-leaning blog, Blogging the President.