Internet Regulation

It’s been barely a year since the Supreme Court decision in Citizens United v. Federal Election Commission and the Court of Appeals for the District of Columbia Circuit ruling in SpeechNow.org v. Federal Election Commission resulted in a dramatic liberalization of the law regarding independent expenditures in political campaigns, but that hasn’t stopped the unending chorus of dire warnings from “reform” jannisaries who see themselves as the ancient protectors of the old regulatory regime.  In fact, though, the early anecdotal evidence and numbers are almost all good.  Citizens United and SpeechNow have coincided so far with an explosion in the number of competitive races, more political speech, and campaigns with a greater focus on big issues of national direction rather than trivia, faffe, and personality.

The latest bit of data supporting the wisdom of the courts’ deregulatory, pro-First Amendment jurisprudence is a short report by Michael Beckel for the Center for Responsive Politics (no relation). 

As lawmakers begin to tackle weighty issues in the lame duck session and look to the next Congress, the Center for Competitive Politics will work with lawmakers in both parties to advance pro-speech legislation that reaffirms important First Amendment principles.

In what we hope is the first of many common sense proposals, Rep. Tom Cole (R-Okla.) recently introduced the “Free Speech and Citizen Fairness Act of 2010″ (H.R. 6286). This legislation would eliminate the annual aggregate cap on contributions by individuals, repeal the limit on coordinated spending by national or state political parties, and clarify that blogging and other internet activities are not treated as contributions or expenditures.

At a Cato Institute-sponsored panel discussion Tuesday, CCP Chairman Brad Smith and Patton Boggs attorney William McGinley elaborated on the latest congressional attack on free speech-the DISCLOSE Act.

The Director of Cato’s Center for Representative Government, John Samples, who moderated the event, has a podcast today focusing on the DISCLOSE Act. Video of Tuesday’s event will eventually be posted on the Cato Institute website.

Smith explained that the DISCLOSE Act seeks to make illegal a large amount of political activity allowed even before the Supreme Court’s landmark decision in Citizens United v. Federal Election Commission, such as issue ads. Smith said that Democrats are using Citizens United-federally and in states-to press legislation that would enact broad campaign finance restrictions not even addressed in Citizens United. As White House Chief of Staff Rahm Emanual has explained, “You never want a serious crisis to go to waste.” Smith cited Vermont as one such state that had never attempted to restrict independent expenditures by corporations until after the Citizens United decision. Suddenly, Democrats sensed an opportunity to exploit this phony “crisis.”

McGinley focused on the more practical issues that the DISCLOSE Act would foist on candidates, businesses, nonprofits and other political speakers. McGinley began by stating that two major political speech facts need to be understood while crafting legislation. He explained that political speech is a ‘give and take’ that must have the ability to be nimble, and that political speech requires money to get a message out to the American public. He remarked that the DISCLOSE Act would destroy an advocate’s ability to be nimble and give the advantage to the political opponent because a speaker would be forced to telegraph their intentions.

Furthermore, he said  the amount of paperwork and confusion that would occur prior to the 2010 election among non-profits and corporations would be vast because DISCLOSE would completely alter the campaign finance system, introduce prior restraint and require tedious steps such as forcing candidates to certify that no campaign staff are foreign nationals. McGinley said that disclosing donors to independent groups and forcing them to appear in campaign advertisements is unnecessary, particularly because some large donors might not support specific messages, and would ‘chill speech.’ McGinley finished by contemplating the effect that the DISCLOSE Act will have on the Internet, including a continuing threat to the political speech of bloggers.

Finally, a brief question and answer section brought up numerous questions on the DISCLOSE Act, but the most significant question related to the National Rifle Association’s negotiated exemption from the DISCLOSE Act-the Shotgun Sellout.. McGinley said this exemption would make the DISCLOSE Act less likely to withstand constitutional scrutiny because it allowed Congress to pick a “preferred class of speakers, while silencing the rest.” The DISCLOSE Act is likely to come up for a vote within the next few days.

Twitter and Facebook are great means for keeping in touch, and popular tools for political activists.  Unless… potentially… if you’re in Maryland.

The Maryland State Elections Board, in an attempt to extend disclaimer requirements to social media, is proposing new regulations that impose burdensome requirements on Maryland politicos.  Essentially, Maryland wants to treat social media like snail mail.  Their thinking must be that if a piece of political mail requires a statement declaring who paid for it and sent it, so too should these new forms of communication.

Let’s set aside for a second the whole problem of equating a Twitter feed, that a person only sees because he or she has asked for it, with unsolicited bulk mail.  Let’s also set aside the fact that social media sites already have means to check the bona fides of users, and that fraud and abuse are better handled by the ISP or service provider than by a one-size-fits-all identification requirement that applies only to Maryland political actors already subject to the state disclaimer requirement. 

The real devil is in the details.

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…

As is well known by followers of the so-called campaign finance “reform” issue, during Wednesday’s “DISCLOSE Act” hearing before the Committee on House Administration, election lawyer William McGinley stated that the legislation potentially threatens the free and unfettered speech of political bloggers, who often support or oppose candidates in a manner that, to borrow a phrase, “can be interpreted by a reasonable person only as advocating the election or defeat of a candidate.”

The self-styled campaign finance “reform” community has, as Jeff Patch has noted, “freaked out.” While the public has generally not given much attention to the issue of campaign finance regulation and the Citizens United decision, I suspect that the term “censorship of internet bloggers” is not one the “reform” community wants associated with their latest brainstorm and bandied about in public. There remains a deep reservoir (although not deep enough) of support for the First Amendment in this country, and being seen public as censors hardly benefits  those who, well, want censorship.

The DISCLOSE Act (Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections) by Senator Chuck Schumer and Congressman Chris Van Hollen just keeps getting worse and worse with each reading.

Among the many deficiencies uncovered so far (crafted behind closed doors, favors the speech of organized labor while silencing the business community, designed by Democratic Congressional political leadership to enhance their election advantages, and ignoring that current disclosure requirements are more than sufficient), another has recently come to light—the bill would impose significant restrictions on the right of citizens to speak freely on the internet about candidates.

William McGinley, a prominent campaign finance lawyer who testified at yesterday’s hearing on the DISCLOSE Act, noted during his oral testimony that “the broad reach of the new definitions of independent expenditure… and covered coordinated communications… now appear to regulate internet communication, including the liberal and conservative blogosphere.”

McGinley went on to note that the DISCLOSE Act’s media exemption provisions does not include web sites or internet communications in the same manner as current law, which does protect political speech on the internet from government regulation and restriction. He concludes that “this legislation does not exclude bloggers or internet communications, and places them at risk. If this bill passes, the internet’s status as a free-speech zone is in danger.”

You can check out McGinley’s testimony at the Committee on House Administration’s web site. His comments on regulation of political speech on the internet begin at around 34:30.

Analyzing this so-called campaign finance “reform” bill, I keep feeling like that boy in the room with a shovel, looking for the pony…

Campaign finance fans will recall the regulatory battle over internet regulation after the signing of the McCain-Feingold Act. The FEC had never seen so many comments on one of its rulemakings.

Bloggers everywhere were claiming that they fit within the “media exemption” to federal campaign law.  Reformers were saying the media exemption should be limited to well-established media organizations.