Internet Politcal Chat in Jeopardy?

[LostInSpace]

Center for Democracy and Technology

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On March 28, 2005, the Federal Election Commission (ÔÇ£FECÔÇØ) issued a Notice of Proposed Rulemaking (ÔÇ£NPRMÔÇØ) proposing to extend campaign finance regulations to certain political speech on the Internet. The public may comments on the proposed rules until June 3, 2005. The FEC has released a helpful detailed summary of the NPRM, and CDT & IPDI have released a very brief overview of the NPRM............................

In the 2004 election cycle, in contrast, millions (and possibly tens of millions) of individual Americans expressed their political views online, and at most a tiny fraction of those individuals were working for an organized political campaign or party. And it is certain that the vast majority of those millions of speakers had not retained attorneys to advise them on campaign finance law issues.

But without attorneys (indeed, without attorneys steeped in campaign finance law) the task of determining what oneÔÇÖs obligations are under the laws and regulations is daunting, to say the least. An uninitiated speaker wanting to comply with federal law is confronted with:

234 pages of statutes from the U.S. Code;

516 pages of FEC regulations from the Code of Federal Regulations;

702 pages of ÔÇ£explanations and justificationsÔÇØ of the FEC regulations;

more than 1300 FEC Advisory Opinions supplementing the regulations;

more than 350 federal court decisions concerning the FECÔÇÖs regulations;

Even if an online speaker knew precisely which regulations to review (and assuming for the sake of argument that the rules proposed in the current NPRM are adopted without change), someone planning to actively use the Internet to express his or her political views would have to consult, at a bare minimum, the following provisions from Chapter 11 of the Code of Federal Regulations (ÔÇ£CFRÔÇØ):

11 CFR ┬º 100.26 to determine if their speech would be treated as a ÔÇ£public communicationÔÇØ;

11 CFR ┬º 100.22 to determine if their speech qualifies as ÔÇ£express advocacyÔÇØ;

11 CFR §§ 100.73 and 100.132 to determine if they qualify under the news media exemption;

11 CFR § 100.94 to determine if their Internet activities count as contributions subject to limits;

11 CFR § 100.155 to determine if their Internet activities count as expenditures for reporting purposes;

11 CFR ┬º 114.9 to determine if their use of an employerÔÇÖs computer to access the Internet is permissible;

11 CFR §§ 100.27 and 110.11 to determine if their bulk e-mail requires a specific type of disclaimer; and

11 CFR ┬º 100.5 to determine whether their plan to collaborate with their neighbor to speak on the Internet means that they qualify as a ÔÇ£political committeeÔÇØ subject to registration and reporting requirements.

In the face of such an array of laws and regulations, it is certain that at least some individual speakers on the Internet will choose to forgo online political speech. That many Internet speakers may in fact be oblivious to the existence of the laws and regulations (and thus may never think to consult them) does not avoid the fact that some speakers will attempt to determine their correct classification under the regulations, and decide to forgo their speech instead. The highly complex and voluminous rules will have an unavoidable ÔÇ£chilling effectÔÇØ on constitutionally protected ÔÇô indeed, constitutionally valued ÔÇô political speech.

The fact that the FEC has laudably sought to narrow the reach of its regulation of Internet speech also does not alter the chilling effect of the rules. Unless either Congress or the FEC breaks the mold of pre-existing campaign finance regulations and drafts a single, short and easy-to-understand exemption of individualsÔÇÖ online speech, the complexity of the rules as a whole will chill individualsÔÇÖ speech ÔÇô speech that the campaign finance laws and rules should be promoting. Congress or the FEC must draft a rule accessible to and understandable by the average Internet speaker.

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[LostInSpace]

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11 CFR ┬º 100.5 to determine whether their plan to collaborate with their neighbor to speak on the Internet means that they qualify as a ÔÇ£political committeeÔÇØ subject to registration and reporting requirements.

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Does this mean most of us here are a political committee?