Federal Election Commission Clarifies Rules on Internet Blogging and Federal Candidates

On May 12, 2006 the Federal Election Commission’s amended rules on the use of the internet in Federal election campaigns went into effect. Bloggers in Washington State have been very active blogging on candidates for US Senate and Congress, like Darcy Burner and Peter Goldmark running for Congress and Maria Cantwell running for re-election to the US Senate..

The new rules are in response to a recent US District Court decision that said the Commission could not give a wholesale exemption from reporting for all internet activity.

The FEC, in adopting new rules, clarified a number of issues involved but basically exempted all blogging and internet communication from campaign reporting except for paid advertisements placed on another person’s website.

Suprisingly this exemption for bloggers even included the rabid, rapidly growing in number, rapacious, not so vacuous and insipid as to make you cry bloggers here in Washington state and the Northwest. That doesn’t mean they aren’t busy over at the NSA trying to decipher what it is we’re saying.

The 26 pages of clarification and rules were published April 12, 2006 in the Federal Registery. They make for interesting reading for all bloggers and anyone interested in the free and unregulated use of the internet under the First Amendment.

“Through this rulemaking, the Commission recognizes the Internet as a unique and evolving mode of mass communication and political speech that is distinct from other media in a manner that warrants a restrained regulatory approach. The Internet’s accessibility, low cost, and interactive features make it a popular choice for sending and receiving information.

Unlike other forms of mass communication, the Internet has minimal barriers to entry, including its low cost and widespread accessibility. Whereas the general public can communicate through television or radio broadcasts and most other forms of mass communication only by payingsubstantial advertising fees, the vast majority of the general public who choose to communicate through the Internet can afford to do so.

When paid advertising on another person’s website does occur on the Internet, the expense of that advertising sets it apart from other uses of the Internet, although even the cost of advertising on another entity’s website will often be below the cost of advertising in some other media.

These final rules therefore implement the regulatory requirements mandated by the Shays District decision by focusing exclusively on Internet advertising that is placed for a fee on another person’s website. In addition, these rules add new exceptions to the definitions of “contribution” and “expenditure” to protect individual and media activity on the Internet. As a whole, these final rules make plain that the vast majority of Internet communications are, and will remain, free from campaign finance regulation. To the greatest extent permitted by Congress and the Shays District decision, the Commission is clarifying and affirming that Internet activities by individuals and groups of individuals face almost no regulatory burdens under the Federal Election Campaign Act. The need to safeguard Constitutionally protected political speech allows no other approach

The FEC noted in its decision that the number of people who relied on the internet for campaign information increased from 30 million in 2000 to 63 million in 2004. They cited reports that some 11 milion people in 2004 looked to blogs as their main source of information and some 18% of American citizens in 2004 viewed the internet in general as their main information source in deciding on who to vote for as President.

Regarding blogging specifically, the Commission noted that:

In light of the evolving nature of Internet communications, the Commission is not explicitly excluding from the definition of ‘‘public communication’’ any particular software or format used in Internet communications. The final rules already exclude ordinary blogging activity from the definition of ‘‘public communication’’ because blog messages are not placed for a fee on another person’s Web site. Thus, an explicit exclusion focused on ‘‘blogging’’ is not only unnecessary but also potentially confusing to the extent that it implies that other forms of Internet communication, such as ‘‘podcasting’’ or e-mailing, might be regulated absent an explicit exclusion for each different form of Internet communication.

The commission also exludes e-mail as a form of political advertising subject to regulation and disclosure. It bases its decision on the fact that e-mail is basically a free activity with no cost involved.

Posting a video is also excluded from regulation and disclosue unless it is placed on another website for a fee.