Bill McGinley, who initially brought to light the fact that the DISCLOSE Act would permit the regulation of online political speech such as blogging, has reviewed the newly-unveiled version of the bill. As noted before, the new legislation does attempt to address the issue of regulating political speech on the internet, but it appears that the problem has not been totally fixed. From McGinley’ blog, http://expressadvocacy.com:
The details matter, however, and I believe that the internet is still subject to regulation under the revised version of the legislation. The DISCLOSE Act is riddled with vague language that could have serious unintended consequences for political bloggers…
…Other coordination provisions, however, still appear to regulate the internet. For example, Section 324(a)(2), provides that any “communication” that republishes, disseminates, or distributes, in whole or part, any campaign or candidate materials is a “coordinated communication” and subject to regulation and possible prohibition. This coordination provision does not contain the term “covered communication” or “public communication” – the two terms that would protect the internet from regulation. This means that if a blog publishes any campaign materials on its website such as a press release, a campaign video, a portion of a direct mail piece, or any other campaign materials, that post will constitute a coordinated communication under this provision. In fact, this coordination provision strikes directly at the heart of what blogs do – quote and republish candidate materials and offer their personal comments on the candidate’s materials. If a post is considered a “coordinated communication”, it constitutes a contribution to that candidate and is subject to regulation under the revised DISCLOSE Act.
… the media exception under RDA Section 324(b)(4) still does not include the terms “web site” or “including any internet or electronic publication” – the terms that were added to the FEC regulations in 2006 to specifically protect blogs. See, e.g., 11 CFR sec. 100.73. These omissions also mean that blogs are still vulnerable to regulation under the revised DISCLOSE Act.
The Definition of “Independent Expenditure” and the Internet.
…this definition does not contain the narrowing term “public communication”, and therefore, is not limited by that statutory and regulatory definition. In fact, Section 201(a) injects the term “communication” into the definition of “independent expenditure” under 2 U.S.C. § 431(17). The current definition of “independent expenditure” does not contain any similar terms so the inclusion of “communication” inadvertently expands the scope of this provision.
It’s worth noting that the pro-regulation group’s defense of the “independent expenditure” definition was based on their assertion that it includes the term “public communication.” The definition of “independent expenditure” does not contain the term “public communication.” Rather, the provision uses the term “communication” – a term undefined by the Federal Election Campaign Act and FEC regulations. Therefore, internet communications, including blog posts, are not excluded from the onerous disclosure and compliance requirements for independent expenditures under the DISCLOSE Act. This is a troubling development. If these provisions are not changed, conservative and liberal bloggers are at serious risk.
So, Congress is apparently still considering legislation that would put internet bloggers at risk for voicing their opinions on candidates and including in their online posts any publically available materials such as a video clip of a commercial or scan of a mailing from a campaign.
As Bill says, the details matter. At this point the DISCLOSE Act is hopelessly convoluted, not only directly stripping First Amendment rights from citizens for the sin of associating with foreign nationals, not only indirectly stripping First Amendment rights from citizens by imposing a burdensome, stifling, and unneeded disclosure regime on them, but also stripping First Amendment rights from citizens simply through the massive uncertainty and confusion that will be generated by this bill among people who are aware of the new laws but have no idea how they will be applied and enforced, and so refrain from speaking out of a fear of running afoul of poorly written and vaguely defined laws.
And then, of course, there’s those citizens who simply won’t be aware of the new laws on political speech and who don’t have high-priced campaign finance attorney’s advising them, who will simply go ahead and speak, or write a blog post, or otherwise engage in political speech, and who will then get to know they joys of an FEC investigation possibly followed by fines and jail time.
