FEC commissioners voted 5-1 on Thursday in the US to approve a procedure that is expected to end with a final set of Internet rules--governing everything from whether bloggers are journalists to bulk political e-mail--in place by the end of the year.
"What we're arguing about is how much freedom people are going to lose on the Internet," said FEC Commissioner David Mason, a Republican. "If we do it right, they won't lose much freedom."
The FEC is in the unusual position of being required to extend the US Bipartisan Campaign Reform Act (BCRA) because of a federal judge's order last fall. The three Republican commissioners had tried to persuade their three Democratic colleagues to appeal US District Judge Colleen Kollar-Kotelly's decision to include the Internet, but the Democrats refused.
Ever since FEC Commissioner Bradley Smith, a Republican, warned of the possibility of an impending Internet crackdown in an interview with ZDNet Australia's sister site CNET News.com in early March, an army of bloggers has mobilised to oppose intrusive regulations, and members of Congress have warned the commission that its actions are being closely watched.
As a result, the Democratic commissioners on Thursday in the US attempted to play down the significance of their opposition to an appeal a few months earlier. "We are not the speech police," said FEC Commissioner Ellen Weintraub, a Democrat. "The FEC does not tell private citizens what they can or can't say on the Internet or elsewhere."
FEC Commissioner Danny McDonald, another Democrat, said: "I've never seen so much ado about nothing at this stage of the process."
Among bloggers and political commentators, the reaction to the FEC's proposed regulations was mixed.
Mike Krempasky, a contributor to conservative Web site RedState.org who attended the meeting, said: "Don't believe Ellen Weintraub when she repeats her mantra of 'Bloggers, chill out!'"
Krempasky said the draft rules, if finalised, would create a "regulatory minefield" because they give individuals greater leeway than corporations. But a growing number of bloggers are incorporating to gain protection from civil suits, he said, which means they could be prohibited from political activities unless they qualify as legitimate journalists.
A section of current law known as the "media exemption" says campaign-related expenditures aren't regulated if they're made by certain types of journalistic outlets. But the definition is relatively narrow and covers only a "broadcasting station, newspaper, magazine, or other periodical publication"--it does not specifically include Web sites. FEC commissioners on Thursday in the US said that they would make "case by case" decisions about who qualifies.
Rick Hasen, a Loyola Law School professor who argued in court in favor of the BCRA, said that the "FEC's first stab at writing new rules raises as many questions as it seeks to answer, and we must remain wary of both intended and especially unintended consequences."
Hasen suggested that the proposed rules may not go far enough. For instance, he said, bloggers that get paid by political campaigns should be required to disclose their involvement in a prominent notice on their Web site. In last year's race, the Howard Dean campaign paid the publishers of the Daily Kos and MyDD blogs $3,000 a month.
One page of the 47-page proposed regulation raises the question, and tentatively concludes that bloggers should not be required to disclose payments. During a brief debate, Mason warned that the FEC might not have the authority to force individuals to post disclaimers and proposed that the commission delete that page from the proposal.
Mason's attempt to approve the proposed rules without that page failed by a vote of 1-5. He was the lone dissenter in the 5-1 vote to approve the rules with that page included.
Commissoner McDonald said "it's important to have it in" because the public is "better served to have these issues out there and have them discussed."
The Republican commissioners seemed worried about starting a process that could result in an ever-growing set of rules affecting online commentators. "Once we start down this road, it will be very difficult to limit where we proceed," Mason said. "We may even be sued if we adopt these rules."
Interest from Capitol Hill has been unusually intense. Senator Harry Reid has introduced legislation that would effectively overturn Kollar-Kotelly's decision from last year by immunising the Internet from campaign finance laws. In an opinion article on Thursday in the US, Representative John Conyers, said that "bloggers should be classified as journalists and given First Amendment protections."
Some of the original sponsors of the BCRA, on the other hand, wrote a letter warning the FEC not to do anything that would create "loopholes" in the law. Representatives Christopher Shays and Martin Meehan, who signed the letter, had sued the FEC to overturn the agency's earlier decision that largely exempted the Internet from campaign finance rules and resulted in the current proceeding.
The American public will have 60 days to comment on the proposed regulations. The FEC is accepting comment by e-mail to Internet@fec.gov or through Regulations.gov. A public hearing is scheduled for June 28.
