Federal Election Commission to Consider Regulating Online Political Speech

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FEC logo_0The Fed­er­al Elec­tion Com­mis­sion (FEC) is hold­ing a hear­ing today to receive pub­lic feed­back on whether it should cre­ate new rules reg­u­lat­ing polit­i­cal speech, includ­ing polit­i­cal speech on the Inter­net that one com­mis­sion­er warned could affect blogs, YouTube videos and even web­sites like the Drudge Report.

The hear­ing is a response to the U.S. Supreme Court’s rul­ing in McCutcheon v. FEC last year, which struck down the FEC’s pre­vi­ous cap on aggre­gate cam­paign con­tri­bu­tions from a sin­gle donor in an elec­tion cycle.

Before the deci­sion, indi­vid­u­als were lim­it­ed to a com­bined total of $46,200 in con­tri­bu­tions to all fed­er­al can­di­dates, and $70,800 to fed­er­al polit­i­cal action com­mit­tees and parties.

Indi­vid­u­als are no longer restrict­ed by aggre­gate lim­its, which Chief Jus­tice John Roberts said “intrude with­out jus­ti­fi­ca­tion on a cit­i­zen’s abil­i­ty to exer­cise ‘the most fun­da­men­tal First Amend­ment activities’.”

They may now “con­tribute up to $2,600 per elec­tion to a fed­er­al can­di­date, $10,000 per cal­en­dar year to a state par­ty com­mit­tee, $32,400 per cal­en­dar year to a nation­al par­ty com­mit­tee, and $5,000 per cal­en­dar year to a PAC [polit­i­cal action com­mit­tee],” accord­ing to the FEC.

The com­mis­sion, which con­sists of three Repub­li­can and three Demo­c­ra­t­ic mem­bers, last con­sid­ered such reg­u­la­tions in 2005. How­ev­er, intense oppo­si­tion from First Amend­ment groups result­ed in rules that were lim­it­ed to paid adver­tise­ments from polit­i­cal cam­paigns, par­ties, and PACs.

This time around, orga­ni­za­tions like the Elec­tron­ic Fron­tier Foun­da­tion have warned that some Democ­rats on the com­mis­sion would like to impose much more bur­den­some reg­u­la­tions that could serve as the equiv­a­lent of spend­ing caps in restrict­ing polit­i­cal speech.

Ann Ravel, chair of the Federal Election Commission. (FEC)  

Ann Rav­el, chair of the Fed­er­al Elec­tion Com­mis­sion. (FEC)

Last Octo­ber, FEC Chair­woman Ann Rav­el issued a state­ment in which she com­plained that the agency was not doing enough to mon­i­tor activ­i­ty on the Internet.

Some of my col­leagues seem to believe that the same polit­i­cal mes­sage that would require dis­clo­sure if run on tele­vi­sion should be cat­e­gor­i­cal­ly exempt from the same require­ments when placed on the Inter­net alone. As a mat­ter of pol­i­cy, this sim­ply does not make sense,” Rav­el said.

How­ev­er, the commission’s three Repub­li­can mem­bers – Lee Good­man, Car­o­line Hunter, and Matthew Petersen – respond­ed to Ravel’s com­ments in a joint statement.

Despite the Internet’s grow­ing impor­tance as a tool for all cit­i­zens to engage in polit­i­cal debate, and notwith­stand­ing this Commission’s promise to take a ‘restrained reg­u­la­to­ry approach’ with respect to online polit­i­cal activ­i­ty, [Rav­el] appar­ent­ly believes the time has come to impose greater reg­u­la­tion on polit­i­cal speech over the Inter­net,” the group wrote.

Accord­ing to Com­mis­sion­er Good­man, who served as chair­man of the FEC last year, reg­u­la­tion of con­tent placed on the Inter­net is a very real possibility.


FEC Commissioner Lee Goodman. (FEC)

FEC Com­mis­sion­er Lee Good­man. (FEC)

The com­mis­sion has seen pro­pos­als to reg­u­late even issue advo­ca­cy ref­er­enc­ing fed­er­al can­di­dates that is dis­sem­i­nat­ed on the Inter­net,” Good­man told CNSNews.com.

That could reach YouTube videos, blogs, and web­sites like [the] Drudge Report,” he warned.

Among those tes­ti­fy­ing at Wednesday’s hear­ing, three for­mer Repub­li­can com­mis­sion­ers – Don­ald McGahn, David Mason, and Hans Von Spakovsky – are sched­uled to speak against fur­ther con­trols from the FEC.

The Bren­nan Cen­ter for Jus­tice, Cam­paign Legal Cen­ter, League of Women Vot­ers, Pub­lic Cit­i­zen, and U.S. PIRG are among those expect­ed to tes­ti­fy in favor of more gov­ern­ment regulations.

Zephyr Tea­chout, a Ford­ham Uni­ver­si­ty pro­fes­sor who will also be tes­ti­fy­ing at Wednesday’s hear­ing, dis­put­ed the idea that the agency would fol­low Rav­el’s dictate.

This seems to me to be a major and sil­ly polit­i­cal dis­trac­tion, because this hear­ing is about what the FEC should be doing around McCutcheon. With the deci­sion, along with the Cit­i­zens Unit­ed deci­sion, there are all these new oppor­tu­ni­ties for patron­age pol­i­tics… I’m call­ing hog­wash [about the idea that reg­u­la­tions will be imposed on online con­tent],” Tea­chout told CNSNews.com.

Democ­rats have long sup­port­ed reg­u­lat­ing polit­i­cal con­tent on the Inter­net, but have gen­er­al­ly sought to do so using the Fed­er­al Com­mu­ni­ca­tions Com­mis­sion (FCC).

In 2009, a staff mem­ber for for­mer Rep. Hen­ry Wax­man (D‑CA) spoke about the pos­si­bil­i­ty of the FCC pass­ing reg­u­la­tions that would affect sites like Drudge.

Does one heav­i­ly traf­ficked Inter­net site present one side of an issue and not link to sites that present alter­na­tive views?” the staff mem­ber asked. “These are some of the ques­tions [Wax­man] is think­ing about right now, and we are going to have an FCC that will final­ly have the peo­ple in place to answer them.”

How­ev­er, with the FCC set to vote on Feb­ru­ary 26 on “net neu­tral­i­ty” rules under the aus­pices of pre­vent­ing pri­vate Inter­net oper­a­tors from impos­ing con­trols, the polit­i­cal focus behind the push to reg­u­late online polit­i­cal speech has shift­ed large­ly to the FEC.

The polit­i­cal affil­i­a­tion of the FEC chair­man works on a rotat­ing basis, with the two major polit­i­cal par­ties trad­ing off each year. Since each par­ty retains an equal share of mem­bers on the com­mis­sion, any new rules adopt­ed by the com­mis­sion would require bipar­ti­san support.