The FEC's proposal amends the definition of "public communication" to include "certain Internet communications that are widely distributed or available to the general public." In the past, FEC regulations implementing the Bipartisan Campaign Finance Reform Act of 2002, commonly known as McCain-Feingold, excluded all online communication from the definition of "public communication." But last year, federal Judge Colleen Kollar-Kotelly ruled that the agency could no longer have a blanket exclusion of the Internet from campaign finance regulations.
The draft definition of "public communication" includes mass messages sent to 500 or more people--by mail, text, or voice--which could theoretically include the emerging technologies of RSS and Podcasting. The draft definition also appears to encompass blogs if the writers are compensated, or if the blogs are incorporated or run by a group.
Should blogs be considered "public communication," then politically charged posts, links to campaign sites, and other Internet activity theoretically could be regulated under McCain-Feingold.
The proposed "public communcations" definition continues to exclude Internet communications with a limited distribution, as well as communications on password-protected Web sites with restricted access. And the new regulations don't extend to bloggers who don't get paid for their postings. But the proposal doesn't clarify whether "compensation" just refers to payments by a political party, committee, or candidate, or if it includes all money, including ad revenue.
While the campain finance law exempts the media from regulation, it's not yet clear which bloggers, if any, the FEC will consider exempt. For now, the agency is seeking public comment about whether bloggers should be exempt from all campaign finance restrictions.
Some in the blogosphere expressed concern that the draft measure didn't adequately protect bloggers. "If you had asked me yesterday before I had read it, I was slightly overly optimistic," said Michael Bassik, who works for a political direct marketing firm in Washington, D.C. Bassik helped organize the Online Coalition, a group of bloggers opposing FEC regulation of their media. He said he was particularly worried about how the FEC would regard bloggers who are compensated for their blogging, whether by advertisements or by directly being paid to blog.
Others are urging the FEC to explicitly exclude bloggers from regulation if they write for Web logs run by organizations and for incorporated blogs. Many popular blogs are run by groups of writers, like Powerline--named blog of the year by Time Magazine for 2004--which is authored by a trio of bloggers who go by the pen names Hindrocket, The Big Trunk, and Deacon. Another high-profile group blog is the law-related blog, the Volokh Conspiracy-- which boasts 15 contributors, including founder Eugene Volokh.
Also, some blog owners incorporate themselves to better handle the advertising revenue generated by a Web log, or to minimize liability under libel laws. DailyKos, an enormously popular liberal Web log community, is incorporated--as is AndrewSullivan.com, the widely read blog of a gay conservative author.
Earlier this month, Commissioner Brad Smith set off a controversy in the blogosphere by publicly saying the FEC might begin regulating contributions to blogs. In response, Bassik and Mike Krempasky, who runs the popular conservative Web log Redstate.org, collaborated with several other high-profile bloggers on different sides of the political spectrum to form the Online Coalition. Since its launch on March 11, the coalition has garnered the support of 3,275 other bloggers and blogwatchers.
The blogstorm that has erupted around the FEC's possible regulation of political speech on the Internet also has turned a few heads in Congress. Senate Minority Leader Harry Reid (D-Nevada) introduced legislation into the Senate that would exempt the Internet from the definition of "public communications." Reid also sent a letter last week to Scott Thomas, the chairman of the FEC, urging him to not restrict free speech on the Internet.
"Regulation of the Internet at this time, with its blogs and other novel features, would blunt its tremendous potential, discourage broad political involvement in our nation and diminish our representative democracy," Reid's letter stated.
Bassik, however, disagreed that a blanket exception is necessary to protect bloggers' First Amendment rights, and said that there are some areas of the Internet that may need regulation. "From a personal perspective, the Internet right now is the Wild West," he said, adding that, while it wasn't abused in last year's elections, "the potential for such abuse exists. "As a realistic individual," Bassik said, "I am not opposed to regulation that would remove the ills that BCRA was intended to remove of soft money and corruption in political communications."
The FEC will accept public comments on the proposal through May 22, and has scheduled a hearing date of June 28.