FEC Holds Hearing on Regulation of Internet Communications

The Federal Election Commission (FEC) held a two-day public hearing in late June to consider comments on its proposed regulation of Internet communications about federal elections. The testimony focused on the role of bloggers and whether they should be required to post disclaimers notifying readers if they receive funds from a candidate or campaign. OMB Watch's testimony focused on the Internet's importance to civic participation and government accountability and urged a minimal approach to regulation. No date for publication of the final rule has been set. Many witnesses highlighted the need to protect First Amendment rights on the Internet. Reid Alan Cox of the Center for Individual Freedom said, "The Internet, quite simply, is both the most powerful and the most democratic communications medium the world has ever known." Michael Bassik of the Online Coalition said regulation of the Internet should not be increased based on a "hunch" that corruption may become a problem in the future. Trevor Potter of the Campaign Legal Center said the FEC already regulates some Internet communications and should focus on corporate communications, not those of individuals. Former FEC Commissioner Karl Sandstrom of the law firm Perkins Coie, LLP, testified on behalf of OMB Watch, calling the Internet an instrument of civic participation. He said proposals to use the FEC's media exemption to leave bloggers unregulated ignore fundamental differences between the traditional press and the Internet. Attempts to categorize bloggers as either media or non-media would be futile, he said. Instead, OMB Watch proposed an exemption for all Internet postings and emails on one’s own site, which would "allow people full use of the Internet to engage in politics without fear...", but "would leave unaffected payments made for banner ads or other forms of Internet advertising on other people’s websites." Commissioner Ellen Weintraub probed Sandstrom about the proposal, asking if it would respond to a court order requiring the FEC to reconsider its exemption of Internet communications. Sandstrom said that it would, even if no additional regulation is put in place, since the threshold of regulation should be based on the potential for corruption, not value. Trevor Potter of the Campaign Legal Center, also a former FEC Commissioner, said the OMB Watch proposal addresses the issues in the rulemaking, and rule based on it could still require disclosure of paid advertising on the Internet, and disclaimers on them. The issue of whether disclaimers should appear on blogs that receive payments from candidates or parties was also debated. FEC Commissioner Bradley Smith noted that traditional media are not required to post such disclaimers. The Online Coalition noted that campaign buttons and other media are not subject to a disclaimer requirement, and it would be inappropriate to impose such a requirement on the Internet. A campaign technology company, ElectionMall Technologies, Inc., has proposed a "Blogger Identity Seal" program that would allow bloggers to voluntarily disclose whether or not they receive funding relating to federal elections. The information would appear as a seal on the blogger's site.
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