FEC Project: The CDT's Eleven Principles

(From the diaries -- kos)

Along with our temporary partner-in-this-crime-only Mike Krempasky, I attended a conference hosted by the Institute for Politics, Democracy & the Internet on Wednesday regarding the current FEC rulemaking process on political activity on the Internet.

Come Monday, when I have more time, I want to talk in more detail about the conference itself, and why the experts on the panel basically put the fear of G-d into me and Mike regarding what might come from this regulatory process.  For a preview, you can watch the whole thing online, and if you're patient enough, you will see me and Mike asking questions from the back row.

On Monday, based on that, there will be some important action items for y'all to help defend the right of all of us to participate freely in politics on the Internet without unnecessary regulation (read: threat of government investigation).  

Today, however, I want to put something else on the table: eleven working principles being advanced by the the Center for Democracy & Technology that I believe merit your attention and, I believe, your affirmance on their website:

They are:

The Principles

We believe that the following principles should guide any consideration of the possible application of the campaign finance laws to Internet activity:

1. The Internet is a unique and powerful First Amendment forum, which supports speech as "broad as human thought." It empowers ordinary people to be speakers and publishers with the ability to reach millions. As such, the Supreme Court has afforded speech on the Internet the highest constitutional protection.

2. Unlike the broadcast media, the Internet is a powerful engine for interactive, diverse, and robust democratic discourse, and it has broadened and increased the public's participation in the political process. The Internet's user-driven control and decentralized architecture support a multiplicity of voices and constrain the ability of any one speaker to monopolize attention or drown out other voices.

3. Robust political activity by ordinary citizens on the Internet, including their monetary contributions, strengthens and supports the central underlying purpose of the campaign finance law: to protect integrity of our system of representative democracy by minimizing the corrupting influence of large contributions on candidates and office holders. Individuals' online political activity engages larger numbers of citizens in the political and campaign processes and encourages an increase in smaller contributions.

4. The Federal Election Commission should adopt a presumption against the regulation of election-related speech by individuals on the Internet, and should avoid prophylactic rules aimed at hypothetical or potential harms that could arise in the context of Internet political speech of individuals. Instead, the Commission should limit regulation to those activities where there is a record of demonstrable harms.

5. If in the future evidence arises that individuals' Internet activities are undermining the purpose of the federal campaign finance laws, any resulting regulation should be narrowly tailored and clearly delineated to avoid chilling constitutionally protected speech. The Commission should eschew a legalistic and overly formal approach to the application of campaign finance laws to political speech on the Internet.

6. Ordinary people should be able to broadly engage in volunteer and independent political activity without running afoul of the law or requiring consultation with counsel. The FEC should make clear that such activities are as a general matter beyond the scope of all campaign finance regulation (including disclaimers, thus preserving the right of individuals to engage anonymous online political speech).

7. Individuals should be able to collaborate with other such individuals to engage in a very substantial amount of independent election related political speech online without being deemed a "political committee."

8. The FEC should extend the media exemption to online media outlets that provide news reporting and commentary regarding an election, including those media outlets that exist only on the Internet. In the Internet context, the news media exemption should be construed more flexibly than in the off-line context, so that it can accommodate new technology and new forms of online speech. The Federal Election Commission should clearly articulate the criteria for qualifying for the news media exemption on the Internet.

9. Independent bloggers and other Internet speakers who report or provide commentary on the Internet but who do not otherwise qualify for the media exemption should be nevertheless be able to engage in a very substantial amount of online political speech without any regulation.

10. The FEC should promulgate rules that permit independent Internet speakers or groups of speakers to incorporate for liability purposes without violating the prohibition on corporate political activity.

11. Any rules promulgated by the FEC with respect to Internet political activity should be technology neutral and not distinguish between or disadvantage forms of online speech. Similarly, rules must be sufficiently flexible so as to encourage innovation and the development of new forms of Internet speech.

Is this a good start for you?  Not enough?  Need more info?  Speak here, and I'll try to answer questions as best I can, and others will pitch in. See also this piece from the CDT's John Morris on the problems with the regulations.

•  thoughts/comments/etc

  Here's a preview of Monday's diary: "Yeah, if you do that, you'll probably fall under the regulation."  Multiply by just about every scenario we could come up with:  are five guys who run a blog together and raise/spend a puny $1000 during the course of two years on federal candidates now a "political committee"?  If a foreign citizen posts a diary on DailyKos encouraging people to contribute to a US candidate, could Markos be facing federal supboenas?  Etc.

  by Adam B on Fri May 13, 2005 at 11:55:57 AM PDT

  •  It gets better.

    Foreign citizen donates to a blog, which subsequently declares itself "partisan."

    by ben masel on Fri May 13, 2005 at 08:03:49 PM PDT

  •  Huh?

    "The main affirmative step the NPRM proposes is to define the statutory term "public communication" to include paid advertisements placed on third party's Internet sites, thereby bringing such advertisements within the reach of the FEC's campaign finance regulations. It is apparent that the FEC sought to confine its regulatory coverage of Internet communications to only a narrow category of speech, and to leave largely unregulated the great bulk of online political speech of ordinary people on the Internet."

    As I read this stuff, the FEC is proposing to regulate only paid placement of ads on third party sites. No one seems to really have an argument against that so instead they go on for thousands of words of pure speculation about:

    the "chilling effect" of allowing any regulation because folks who know nothing might think they had to read thousands of pages of regulations to determine they aren't covered.

    and the complexity and problems created by extending ALL the regulations to internet speech even though they explicitly rule out doing so.

    Tell me again why this is not a load of bullshit to try and stop the FEC from interfering in large unregulated advertising expenditures that would be clearly illegal if the same folks ran the same ads for the same money in other media. And why we as Dems think that is a good idea.

    by Economaniac on Sat May 14, 2005 at 06:19:29 PM PDT

    •  Because . . .

      The proposed regulations go way beyond advertising into other areas, such as:
      

      • rendering any group of co-bloggers who raise/spend $1000 on behalf of candidates into a political committee regulated by the FEC;
        
      • potentially imposing unprecedented obligations on bloggers (that exist on no other media sources) to provide disclaimers of funding sources, under threat of federal subpoena;
        
      • preventing bloggers from incorporating (for liability purposes) while retaining the exemption for media, thus making every post they publish an in-kind contribution to a campaign that needs to be reported and regulated;
        
      • making it illegal for those of us who work in corporations to spend more than 1hr/day or 4h/week participating in politics online;
        
      • read this

      by Adam B on Sat May 14, 2005 at 07:44:39 PM PDT

      •  I "read this"

        It appears to be all about "when a campaign pays a blogger for the explicit purpose of publishing favorable stories".

        I know that Kos thinks this is terribly intrusive. I just don't see the problem. If a blogger is taking money directly from a campaign to tout the camdidate I don't have a problem requiring disclosure on the blog. Moreover it appears to me he IS an agent or employee of the campaign, so treatment as such seems perfectly appropriate. I guess that is your point 2 but I don't see the problem.

        As for the others, everything I have read indicates the FEC is trying to steer clear of regulating the speech content of Internet material as opposed to the flow of money. All the dire warnings as in your points 1,3,4 seem to be reading some sort of unintended consequence of extending existing law to cover bloggers. Again I ask, what exactly raises these concerns? I will admit I have not read the proposed rulemaking carefully but my quick scan didn't reveal these sorts of proposals, and the analysis you have linked presents them as hypothetical implications of internet regulation in general rather than direct consequences of the proposed rules.

        by Economaniac on Sun May 15, 2005 at 11:49:55 AM PDT

        •  response

          1.  Both Markos and Atrios have said that they've got no problem with disclosure in such cases where a blogger is essentially an agent of a campaign.  (i.e., Atrios: " don't think the internet should be exempt from all FEC regulation. I think a blog which was essentially an extension of a campaign - that is, someone is hired to blog to elect a candidate would qualify as an explicit advertisement, and requiring disclosure on advertisements is fine by me. Sure, there are potential grey areas here, but that's always the case. But, the idea that internet speech which isn't explicit advertising should have disclosure requirements which don't exist anywhere else is just ridiculous.")

          The question is (a) whether it should be legally required, and, if so, how you can do that without introducing the threat of subpoena power onto any blog receiving ad revenue.

          Because the next question after "is [x] paying for content" is "then what is [y] getting for free, and how do we value it?"

          Moreover, no other vendors are legally required to make such disclosures themselves -- it's always the duty of the candidate, not the recipient.  So why make this different?

          2.  What hte FEC is trying to do is not what it is, in fact, doing.  And on those details, I'm working on a mega-diary for tomorrow that'll lay it all out.  It's unintended but actual consequences of trying to fit a square peg into a round hole.

          by Adam B on Sun May 15, 2005 at 01:22:42 PM PDT

          •  I appreciate your attention

            WRT disclosure rules, on the one hand I really don't care very much - I figure that if anyone with wide readership takes money from a candidate it will come out eventually, and if they conceal it probably at the cost of their credibility. On the other hand I don't get why this bothers bloggers. Again those that take money and don't provide timely disclosure are risking their franchise, and the more revealing the payments has meaning the more readers will be offended if they dont. Practically all a blogger needs to do is add a disclosure link and page which lists candidates that have made direct payments. I just don't see that as very burdensome. I don't think it changes much if blogs also must disclose their advertisers (which sounds silly, since advertisers are sort of self disclosing but I guess we could imagine...)

            I can see issues about disclosure when a campaign employee posts on a third party blog, especially with that grey area between speaking officially for the candidate and posting independently. I guess more generally posting in comments and open group blogs like Kos generates some difficult questions and it is hard to justify disclosure requirements that go beyond what is required in radio, TV or newspapers.

            WRT ads, the FEC focus (as well as the legal ruling that started this) is on independent expenditures. That still seems simple enough to me - if you run thousands of dollars worth of ads expressly electioneering for a federal candidate on third party sites you need to disclose and are subject to regulation. That does not seem like a grey area that will inadvertantly catch innocent parties or impact free speech on the internet.

            I understand your concern that sites that ACCEPT ads are confronted with possible burdens in two ways. The first is that their revenues are potentially evidence of illegal expenditures by a third party. Thus any blog taking advertising no matter how little is open to supeona to provide info on their advertisers. While this is scary in thoery I don't think it is really the issue some are making it. First Blogs and anyone else who is selling advertising needs to keep records for tax purposes so they should have some record of receipts anyway. Second the needs of investigators will not create a positive responsibility for bloggers or others to determine the source of funds (say if they use one of the ad services to place their ads). Third, the potential exposure of bloggers is no different from vendor who sells a good or service for federal electioneering, the guy that sells the stapler could get a summons. Finally and most importantly there is an inherent contradiction in this objection. If an investigation is focused on thousands of websites taking a few dollars each (for whom any legal entanglement would be a burden) then the investigators and prosecutors will not have the resources or desire to make more than cursory demands on each. If a single site receives a large payment for advertising then the burden in the unlikely event that there was some legal question about the origin of federal electioneering expenditures would not seem out of line with their revenue.

            While it is not part of the "third party ad expenditure" question, I can see how questions about discounting might arise in either the context of disclosure or of advertising. Again I think this becomes an issue of scale. This is really scary for small time bloggers, but should only be an issue for those with revenue and expenses running in the thousands of dollars. If google or MSN give a candidate $100,000 worth of ad space I think that should involve the FEC, and if Kos is big enough to do the same, well I'm sorry but I don't think we should give up on regulating big money in politics so Kos can play kingmaker.

            by Economaniac on Sun May 15, 2005 at 03:04:55 PM PDT

            •  I don't mind

              The more I confront these issues and have to explain them, the better I understand them.

              There are two different aspects the the FEC's NPRM on advertising, and really, if you can spend the time to go through all this, go back to the source material.

              The first is that ads themselves -- which presumably, is defined as things existing apart from other website content -- have to contain disclaimers.  That's fine, mostly, and they're designed by campaigns/PACs and it's their responsibility to contain the disclaimer in the content, except what about Google AdWords that are just 20 words long?  They're not long enough to have meaningful disclaimers.

              The second is paid content, where a candidate/party/PAC wants to sponsor and direct content on an independent website.  There, I generally believe that the free market of ideas and need for blogger credibility will govern; anyone who doesn't disclose and gets found out is SOL in terms of future readership.

              The burden isn't in the act of disclosure; it's in the regulatory apparatus that gets opened up once you determine that the day-to-day activities of bloggers are within the regulatory regime.  For example, once you decide that a blogger is a member of the "media", well, if you were print or radio or tv, then you've got to offer comparable ad rates to all comers.  You have to be "evenhanded" in your treatment of all contenders and issues.  You open yourself up to inquiry in case competing bloggers wonder if you're getting paid or seem too close to a campaign.  And, as I said above, what you give away for free may well be deemed a contribution to the candidate, which triggers reporting requirements.

              Bottom line is that blogging, as of now, does not require one to weigh the potential of lawyering up.  With these regs, it does.  And the worst part of it is (teaser approaching), those doing the regulating have little idea of the world they're diving into.

              by Adam B on Sun May 15, 2005 at 03:35:09 PM PDT

•  All but #10

  When you accept the State Privelege of exemption from libility afforded by incorporation, you are also accepting the limitations. Liability = responsibility. Given the rulings that hosts of a site are not vicaiously liable for transgressionms by users, why should the blogger who incorporates be shielded from legal responsibilies for their own words?

  by ben masel on Fri May 13, 2005 at 01:14:20 PM PDT

  •  typo

    libility > liability

    by ben masel on Fri May 13, 2005 at 01:15:17 PM PDT

  •  well

    The corporation remains liable, just not the individual.  And under Cubby/Stratton Oakmont (and I really haven't looked at this in a while), can't the host be found liable for libel, etc., once he's on notice that the material exists on his site?

    by Adam B on Fri May 13, 2005 at 01:25:43 PM PDT

    •  well...

      I'm not familiar with Cubby/Stratton Oakmont, but that's the basic doctrine in copyright infringement, the host only becomes liable (24 hours?) after receiving a takedown notice from the Rights owner.

      Corporate liabilty works fine when the corp has significant tangible assets. This will not always be the case for a corp whose business is blogging.

      by ben masel on Fri May 13, 2005 at 02:04:59 PM PDT

      •  I'm not sure

        how much protection a blogger gets from incorporating, because it seems like the corporate veil would be pretty easily pierced in most cases.  Dkos has an atypical format, but most bloggers are essentially indistinguishable from their blogs.

        Anyway, we're talking about the narrow issue of "corporate political activity" here; and I think the point is that a blogger who incorporates is simply a different sort of corporation from that which the regulations were intended to restrict.

        by Steve M on Fri May 13, 2005 at 06:37:11 PM PDT

        •  And still:

          Corporations that engage in "legitimate media activity", however that ends up being defined (and right now, there's a notion of even-handedness that's built in) can engage in political speech freely.  Think of, oh, Viacom, Inc., which owns CBS News.

          by Adam B on Fri May 13, 2005 at 07:18:01 PM PDT

        •  Different sort of corporation?

          Corporations are created (chartered) by the States. I don't think it's within the jurisdiction of the Federal elections Commission to crate it's own rules distinguishing "sorts" of Corporations.

          In those states which have passed the Uniform Unincorporated Associations Act, Members and Officers of such Associations are shielded from personal liabilty to roughly the same extent as principals of Corporations, ie only the Associations assets, and not that of members may normally be attached for debts of the Association.

          . To me, this seems a better model for a collaborative blog than the Corporation.

          by ben masel on Fri May 13, 2005 at 07:40:28 PM PDT

          •  election law does distinguish

            In two ways that I can immediately note:
            

            • as mentioned, the media exemption, which allows certain corporations to speak freely on political affairs
              
            • the "MCFL" exemption -- under FEC v. Mass. Citizens for Life, 479 U.S. 238 (1986), the SCT held that corporations meeting three criteria were exempt from the general ban on corporate spending on politics -- (1) formed for the express purpose of promoting political ideas, and does not engage in business activities; (2) no shareholders or other persons affiliated so as to have a claim on its assets or earnings; and (3) not established by a business corporation or a labor union, and it is its policy not to accept contributions from such entities.

            by Adam B on Fri May 13, 2005 at 07:49:09 PM PDT

      •  There's not a ton of case law

        But it looks like Congress has fairly effectively immunized bulletin board operators from liability for the speech torts committed by their readers.  

        by Adam B on Fri May 13, 2005 at 07:29:25 PM PDT

  •  I agree with this --- #10 seems iffy . . .

    Crossing the line from individual to corporate is one of the many lines that need to be examined.

    Frankly, I'm not terribly thrilled with the idea that websites with any monetary support--corporate, advertising, whatever--might not  be potentially regulated (if I understand the position correctly) since this seems to be the very first place where abuse is going to occur. The arguable model in my head is the "neighbors over the fence" model; as long as it's not any different than what could be possible within the effects of regular human discourse, it should be as free as the wind. But as soon as any money is spent to institute, operate, broadcast, or disseminate either the "space" of the discourse or its speech, it becomes a political contribution that should be regulated.

    I know this position ain't gonna be radically popular here, but if you start thinking about what the Rethugs are going to do to twist the potentials of online politics, you get queasy pretty fast. At least I do.

    by chrississippi on Fri May 13, 2005 at 07:16:16 PM PDT

    •  Here's The Question

      Tell me what abuses you fear might occur in this space -- because whatever regulations that exist on corporate/labor/PAC spending in other media, they relate to issues of scarcity and the use of wealth to distort the marketplace of ideas which I don't think apply here.

      Second: media corporations can speak freely, and the proposed regs would try to expand it to Internet speakers.  You get out of regulation if you are "carrying a news story, commentary, or
      editorial by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication, whether the news story, commentary, or editorial appears in print or over the Internet . . . unless the facility is owned or controlled by any political party, political committee, or candidate."

      It remains unclear whether they'll define it broadly enough to avoid having to apply for case-by-case permissions.

      by Adam B on Fri May 13, 2005 at 07:23:10 PM PDT

      •  I'm hugely worried about Astroturf . . .

        and all of the ersatz web arrangements that are going to look like individual speech but be propagated by political operatives. Unfortunately, the cover of technology the Internets afford are far too ripe for nefarious influence.

        I don't really buy the argument that this isn't being done to other media and thus shouldn't be done to the internet. The argument that "Sam Donaldson" should be held to the very same standard---that he can and is potentially "propagated by political operatives"---is mitagated (somewhat) by the fact he is actually "Sam Donaldson." "Sam Donaldson" eats, drives to work, gets a paycheck, all kinds of things that regularly prove his reality and that potentially are threatened if he is exposed as something other than "Sam Donaldson." Of course, this isn't a perfect system---payola and Armstrong Williams for example---but it's enough of a human constraint to have become the basis for structures of evidence that are woven througout society; signatures, notaries, etc.

        The ether of the web doesn't allow that kind of evidence. Duncan Black outed so-to-speak as "Atrios" was a watershed moment for me personally when it happened. For me, it was a clear example of the distance between who a person was and what they could say on the web; a connection to personal speech which would be completely different in the real world.

        These are a lot of rambling thoughts, and I'm not trying to be Luddite about the new media. It just seems that there really are some clear reasons why the internet is bound to be abused as political speech. I'd rather that the media be formed around that understanding than try to patch up regulations in the face of overt failures later on.

        by chrississippi on Fri May 13, 2005 at 07:51:32 PM PDT

        •  I understand that

          A few responses:

          1.  Campaigns already have to disclose such expenditures as they do all disbursements -- every three months when they file.  Now, you can argue that's insufficently frequent, and I'll agree, but it's not like it's a total secret.

          2.  Campaign finance law exists to prevent candidates, parties and PACs from being corrupt.  But it's not the government's job to keep the media from being corrupt.  If bloggers want to be paid shills, it's their right.

          3.  Recognize that the power to regulate is the power to destroy.  All it takes is a citizen complaint and a legitimate reason to believe it's true, and every liberal blogger might be facing subpoenas from an FEC suspecting he's being paid, and then have to lawyer up, etc.

          4.  That said, here's the reality: political reporters in other media are financially supported by their employers, who in turn depend on advertising from all sorts of non-political sources.  But Toyota, McDonald's and Best Buy aren't sponsoring DailyKos -- the people who want to advertise are trying to reach this very narrow audience, and it's the very same candidates, parties and PACs being covered.  To deny some ability to be financially sustained from these sources might be to destroy the whole enterprise.

          by Adam B on Fri May 13, 2005 at 08:07:35 PM PDT

          •  An axiom on regulation

            offered by Murray Edelman (I think) is that no regulations are instituted without the consent of the regulated. (Think: Cheney's energy policy). My concern would be that now that the "big boys" are playing in blogland, that it would be big corporate media interests like Viacom which will determine the shape of any such regulations.

            by hono lulu on Fri May 13, 2005 at 11:14:29 PM PDT

•  It is sad that Iranian Bloggers have more freedoms

  Bush talks about freedom spreading. I firmly believe that blogging does that. Ask the Iranian youth that are blogging for freedom.

  Here is a nice list of Iranian Blogs

  I guess we bloggers will fall under the attacks that our fellow bloggers in China have gone through.

  Bloggers of the world UNITE!!!

  by theglobalizer on Fri May 13, 2005 at 06:41:09 PM PDT

•  Will these same rules apply to Freepers?

  Or will they be protected by Freedom of Religion?  

  We already know that churches who excommunicate democrats are still protected as charitable organizations under their IRS 501 c3 non-profit status.  Who cares it they are profitting the oligarchy by preaching subservience to GWB?

  Why should they lose their non-profit status while the NAACP is being challenged for protecting Americans against racism?

  by super simian on Fri May 13, 2005 at 06:48:58 PM PDT

•  keep providing more information on this

  Beyond the mere basics, this is all rather unfamiliar to me.
    What would be helpful would be to include possible scenarios, what-would-happen-if types of examples.  
     Subtle wording in regulations may portend great problems for bloggers so I will be looking forward to what you put up on Monday. To lose free speech rights is unthinkable, but in these odd times, the unthinkable keeps occurring.

  by offred on Fri May 13, 2005 at 06:51:19 PM PDT

  •  help

    This month-old diary of mine is, I hope, a pretty decent summary of where we are.  The CDT site has helpful info as well.

    by Adam B on Fri May 13, 2005 at 07:31:15 PM PDT

•  Anonimity?

  Allowing anonymous participation in forums such as DKos is essential.

  by CSTAR on Fri May 13, 2005 at 07:56:00 PM PDT

  •  terms

    There is no anonymity here; there is pseudonymity.  To post here, you are required to register under some, consistent identity.

    Eschaton, however, allows anonymity.

    This is one of the issues which I don't think the FEC/"experts" get yet -- most people who post on these sites are not the owners.

    by Adam B on Fri May 13, 2005 at 08:33:24 PM PDT

    •  Important distinctions

      Yes there are technically various terms which could be used to describe the desired property... The main property is one which can my identity as a physical person living in a house be non-deducible from my identity as a DKos poster. The reason is simple: I don't want a brick flying through my kitchen window as a warning for making a comment.

      by CSTAR on Sat May 14, 2005 at 08:31:28 AM PDT

•  on the video

  Krempasky: 1:11 (on drafts, political committees and whatnot)
  Me: 1:27 (on fundraising by bloggers, which is treated as some wild-assed hypothetical)

  But watch the whole thing -- actually, just have it on background and listen while you're doing other stuff.  The visuals aren't terribly interesting.

  by Adam B on Fri May 13, 2005 at 08:49:56 PM PDT

•  In non lawyer speak...

  please.

  If you're looking to appeal to a broad base of people for support you folks could make these principles easier to digest.  

  I'm not trolling, I'm just sayin.  

  by jbou on Fri May 13, 2005 at 10:02:16 PM PDT

  •  Just sayin.

    I'm with the 26% who agree with you.

    by Jim W on Sat May 14, 2005 at 05:09:09 AM PDT

  •  I understand that

    Tell me what you want to see happen, and I'll see how I can translate it into lawyerese.

    by Adam B on Sat May 14, 2005 at 05:11:48 AM PDT