The Renewed Call to Apply the Bipartisan Campaign Reform Act to the Internet

By Randy Enochs, Editor at Large

By now most of us have probably heard about the controversial “remake” of the 1984 Ridley Scott-directed Super Bowl commercial depicting Senator Hillary Clinton (D-NY) as Orwellian IBM and Senator Barack Obama (D-IL) as liberating Apple.  Right about now many pundits who author blogs are beginning to place big, bright banners, links and e-mail addresses on their websites to support their current choice for our next President.  The internet is an innovation parallel to television, radio and newspaper, and, in many instances, more influential and reaching.  However, the Bipartisan Reform Act of 2002 (BCRA), an important piece of legislation passed into law with a purpose of addressing issue ads, does not currently apply to the internet.  With the role the internet plays in politics via blogs and video clip websites like YouTube, many argue that BCRA should be extended. 

            The issue of applying the BCRA to the internet was at the fore back in March and September of 2005 when Senator Harry Reid (D-Nevada) introduced a bill that called for the inclusion of the internet in the BCRA and the Committee on House Administration held a hearing on the subject of regulation of political speech and activity on the Internet.  In the hearing, the Committee heard from several legislators, election law experts and bloggers on whether or not the internet should be included under the Act.  Professor Bradley Smith, a former FEC chair, wrote on this controversy:

"What is perhaps most notable about the internet, for our purposes, is that there is probably no other medium by which the average citizen can exercise so much political influence with so little an expenditure of money. There are no barriers to entry in the world of blogging, or in creating email lists. Free software and free websites are available to blog, and a blog can therefore be established by the most amateurish computer user in under an hour, at literally zero cost. The person need not even own a computer or have internet service at his home or workplace -- access to a public library equipped with computers with on-line access will do. If one is truly concerned with reducing the influence of ``big money´´ in politics, then a deregulated internet is, by definition, ``reform.´´"…  A regulated internet will strengthen those who already have political power and influence; a deregulated internet will boost the influence of ordinary Americans who just want to play by the rules...."

The YouTube “1984” ad is an example of such an ordinary American contributing to the political discourse.  The clip, arguably costing little-to-nothing to make, was made from the comfort of an average citizen’s home and it got America discussing something that normally costs thousands of dollars if done so via television or newspaper ad. 

Yet not everyone agrees that regulation cannot be harnessed to control well-money political voices on the internet.  Lawrence Noble, Executive Director and General Counsel of the Center for Responsive Politics, testified at the Committee hearing on how the internet is just another avenue for the use of soft money and is no different than television or newspaper: 

There is little doubt that the Internet can be used in much the same way television, radio and the print media have been before; as an avenue for the spending of large amounts of undisclosed soft money to finance various forms of political ads aimed at electing or defeating Federal candidates.

Mr. Noble’s concerns were also the concerns of the U.S. District Court for the District of Columbia in Shays v. FEC, 337 F.Supp.2d 28 (D.D.C. 2004).  As Chairman of the FEC, Vernon J. Ehlers, at the hearing summarized: 

The U.S. District Court for the District of Columbia concluded that the Commission’s broad Internet exemption would “severely undermine [the Federal Election Campaign Act’s] purposes,” and would permit “rampant circumvention of the campaign finance laws and foster corruption or the appearance of corruption.” Shays v. FEC, 337 F. Supp. 2d 28, 70 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005), petition for rehearing en banc filed (Aug. 29, 2005). Though the district court held some 15 regulations invalid, it nonetheless indicated that pending resolution of the litigation and adoption of needed revisions by the FEC, the challenged regulations remain in effect. Shays v. FEC, 340 F. Supp. 2d 39, 54 (D.D.C. 2004).

To implement the Court’s decision in Shays, the FEC amended its rules to “include paid advertisements on the Internet in the definition of ‘‘public communication.’’  If you have seen a recent campaign commercial, you would have noticed how at the end of each the candidate who paid for the commercial will announce that he or she paid and supported the ad.  This is currently the extent to which the BCRA applies to the internet.  So, unless a candidate paid for those banners, links or YouTube ads, it does not have to comport with the BCRA.  This is a good thing according to some because it leads to an increase in civic participation and asking the average citizen blogger to conform to federal regulations may be too much to ask.  As Chairman Ehlers wrote: 

While there has been no evidence of corruption resulting from the Internet exemption there has been ample evidence of the positive effects of a deregulated Internet. There was 42% growth from 2000 to 2004 in the number of people using the internet to research candidates' issues positions. About 44% of online political activists have not been politically involved in the past in typical ways-they have not previously worked for a campaign, made a campaign donation or attended a campaign event. Technorati, a popular blog search engine, is now tracking 19.8 million blogs and reports that every five months the number of blogs on the Internet doubles.

We don't want bloggers to have to check with a federal agency before they go online. They shouldn't have to read FEC advisory opinions, or hire federal election lawyers to make sure what they are doing is legal. They should be able to express their views on politics and politicians without having to worry about running afoul of our federal election laws.