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No Rush for FEC to Govern New Social Media

Increased Use of Facebook, Twitter Does Not Spur Action

In the world of campaign rules and regulations, social media remain a vast uncharted territory that the Federal Election Commission isn’t in any particular hurry to map out.

Although social networking sites such as Twitter and Facebook are increasingly used by political campaigns to get their messages out, there are no specific federal rules or guidelines dictating how the communication can be used.

Brett Kappel, a counsel with Arent Fox, said the FEC rules regulating Web-based campaigning — implemented just a few years ago — are already impractical for social networking tools such as Twitter, where only 140 characters are used to communicate a message.

“Four years after adopting lenient rules governing campaigning over the Internet, the FEC is being confronted with new issues by campaigns’ expanding uses of social networking technology,” Kappel said. “FEC regulations, for example, require campaigns to include a disclaimer on e-mails sent to more than 500 people, but such disclaimers aren’t practical for campaign Twitter accounts.”

An FEC source confirmed that the agency was behind the times when it comes to social networking sites but said the commission enacted rules in 2006 that brought paid online advertisements under the purview of campaign finance laws.

Under the 2006 ruling, political committees are required to put disclaimers on their websites and e-mail messages that are substantially similar and distributed to more than 500 addresses.

The ruling exempted all other Internet communication such as blogs or mass e-mails from federal regulation.

The closest the FEC has come to entering the brave new world of social networking was a 2002 advisory opinion on text messaging, well before the method was notably used in the 2008 election by Barack Obama’s presidential campaign.

In the advisory opinion, issued by then-Vice Chairman Karl Sandstrom, the FEC said that since text messages are so small, they are exempted from the disclaimers that are required on larger means of political advertising.

Paul Ryan, FEC director and associate legal counsel at the Campaign Legal Center, said it was unlikely that the FEC would intervene on its own since the social networking tools are free.

“The simple fact that [a candidate or committee] may use the [social networking tool] effectively doesn’t trigger the same concerns” that it would if there were money involved, Ryan said.

“The regulations really hinge on money,” he said, adding that candidates are required to have disclaimers on their websites, even if the cost is negligible.

Jan Baran, a partner at Wiley Rein and an election law expert, said not to expect the FEC to rule on free social networking sites anytime soon.

“The FEC focuses on goods and services for which a campaign must pay fair market value,” Baran said in an e-mail. “That won’t be an issue with Twitter or Facebook, which are free to all.”

He added, “However, if a campaign maintains a Facebook page, it will have to use volunteers or campaign resources to do so.”

David All, who publishes the Tweet Watch Report, a daily digest of Tweets from Capitol Hill, said the FEC would have to address the use of social media in campaigns eventually, but he hopes it will not lead to more regulation.

“Ultimately, stakeholders need to be brought to the table proactively with regulators to discuss how best to understand the mediums and address any concerns so regulators do not interfere with the ability of candidates and politicians to directly connect with voters and their constituents, or restrict the constitutionally protected speech of voters,” All wrote in an e-mail.

“As more political candidates begin to use Facebook and Twitter to connect with voters, more questions will arise about where the lines are drawn, especially in terms of disclosure,” he wrote. “Transparency is the gold standard, and to the extent that the FEC gets involved, it should be with that goal in mind.”

All mentioned that the issue has begun to be addressed on the state level in places such as Florida and Maryland.

Earlier this month, the Maryland State Board of Elections approved a rule that would require candidates and committees to disclose the person or entity responsible for their social networking site. If the Maryland General Assembly approves the rule, it will be the first state in the country to regulate the free site.

A new Florida law allows campaigns and candidates to largely ignore disclaimer laws governing digital ads when dealing with most social networking sites.

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