Fat Steve's Blatherings

Saturday, May 21, 2005

Attention Needed

      The Federal Elections Commission is close to promulgating its rules on election activity over the Internet.  (Hat tip: Glenn Reynolds).

      With luck, Sen. Reid's bill will pass, and all this will become moot.  But until then, it's our job to stop this assault on free speech.  So get in touch with them by e-mail at internet@fec.gov or submit through the Federal eRegulations Portal at http://www.regulations.gov.

      Comments should be addressed to Mr. Brad C. Deutsch, Assistant General Counsel.  Make them respectful and rational.  The Commission is under court order to promulgate these rules.  Let's limit them as much as possible.


Dear Mr. Deutsch:

      First, I object to the entire rule, though I realize you don't have a choice at the moment.

      The use of the Internet byshould be not be defined to include general political activists not formally affiliated with the parties.  (section 441i(b) of BRA) The use of the Internet by activists should not be restricted.

      Thus, I would object to the that if the rules governing restricted the actions of someone like me in communicating a political position.  I am not affiliated with any political party's ad promoting a candidate on a website if it were available cheaply enough.  In fact, I would consider it an assault on my constitutional right of free speech.

      I consider it reasonable that       If any person, including a private party such as myself, wishes to purchase an ad advocating the election or defeat of a candidate, or a solicitation for funds, then it is reasonable to require that my identity as purchaser be revealed.  In general, rules that increase the flow of information rather than restrict it are reasonable in principle.

      Your proposed rule asks:      No.  Advertising is paid for, by definition.      Yes, it is.  It's known as free speech, and is constitutionally protected.      The question answers itself.  Speaking is not an expenditure, as money has not changed hands, and is not a contribution, for the same reason.  Therefore, it should not be subject to regulation.      No, it should not.  If I choose to place on my site an endorsement of a candidate, and the candidate's site chooses to recommend me as someone who gives good political analysis, that should NOT be restricted.      Yes, it should.  Rules restricting or regulating speech should be as tightly drawn as possible.

      8      Yes.

      The exclusion should continue.  The rule is requiring 'Federal dollars only' is reasonable if money actually changes hand, not in cases where money is not paid out.

            No, it should not be so required.      I find the idea of allocating on the portion of the site used reasonable.      Only the marginal costs required for the PASO communication.

            No.  Political party's websites are known to exist for the purpose of promoting candidates and policies.  Regulation is not required, or in the public interest.
      This seems reasonable to me.
      In general, this seems proper, but it doesn't go far enough.  Disclosure requirements on most websites will serve only as, effectively, a ban on communication.

      For instance,       The source of my funding is me, and my communications are authorized by me.  How clearly and conspicuously do I need to state that on my blog?  I would think that unless someone has paid me to say something, no statement of any kind should be required.  If I car      My web address is visible in the browser window.  That should be enough.
      That is reasonable.
      Excluding addresses acquired non-commercially seems reasonable.  If I collect e-mail addresses non-commercially, e.g. through visits to my blog and letters sent to me, then that should NOT be regarded as an expenditure.  If I choose to turn them over to someone,       Again, that seems reasonnbsp;     In concert with.
      No, it should nop;     That would be best.  The cost of writing an e-mail is trivial, as is the cost of sending it.  The value of disclosure seems far outweighed by its cost.

           I believe there should be a limit on the disclaimer rewould be sufficient, and even that may be too onerous.  Best would be a
      The preceding was a paid political advertisement
is enough when the ad is placed by an individual.

      The Commission notes that its current rules require a political committee to disclose this type of disbursement on its publicly available reports filed with the Commission.  The Commission does not therefore propose to change the disclaimer regulation in 11 CFR 110.11(a) to require bloggers to disclose payments from a candidate, a campaign, or a political committee.  The Commission seeks comment on this approach.  Should bloggers be required to disclose such payments?  Should a blogger be required to disclose payments only if the blogger expressly advocates the election or defeat of a clearly identified candidate or solicits a contribution?  Would a payment by a political committee to a blogger for promotional content on the blog constitute 'general public political advertising' within the meaning of 100.26?
      Given that the expenditure is already being reported by the candidate, etc., there seems little reason to require further disclosure by the recipient.  I see no reason why a blogger should be required to duplicate the disclosure, as this would only add a burden to the blogger without increasing the information available to the interested public.  Those who are interested can check with the Commission to see if which blogs, if any, are being paid by various candidates.

      Because of the pending appeal and the upcoming rulemaking on coordinated communications, the Commission is not proposing to revise 11 CFR 109.21 in this rulemaking.  The Commission notes, however, that revising the definition of 'public communication' to include certain Internet communications would render such Internet communications subject to the current coordinated communication provisions of section 109.21[22] The Commission invites comments on this approach.
      I suggest that the Commission explicitly exclude any inclusion of Internet communications until the question of what the Commission is required to do is answered.

      The Commission’s rule would exempt from the coordinated communication rules advertisements that require payments to outside vendors to create, but that are placed only on the payor’s own website.  This could include a corporation or other prohibited source.  The Commission seeks comment on whether this approach is appropriate, and on whether any other parts of the Commission’s regulations, e.g. those provisions at 11 C.F.R. 114.4 that deal with corporate and labor communications beyond the restricted class, can be interpreted to nonetheless place restrictions on such activity.  The Commission’s rule would also exempt from the coordinated communication rules advertisements that are placed on a prohibited source’s website for free, even though a fee would normally be charged.  Is this an appropriate course?  Do any of the Commission’s other rules already regulate this so that such activity would be prohibited?
      If one must make rules in this area now, then I think the Commission's approach is generally appropriate, and no further regulations would be needed.  But I repeat, until the question is settled of what changes in the content rule are required, if any, Internet communications should be explicitly excluded from those rules.

      Should the Commission amend 11 CFR 109.21(c)(2) to exempt all dissemination, distribution, or republication of campaign materials on the Internet generally, or keep the reference in the regulation to 'public communication'?
      Amend to exempt.

      The 'party coordinated communication' rule at 11 CFR 109.37(a) sets out a three-pronged test for determining whether payments by a political party committee for communications are 'coordinated' with a candidate for Federal office, a candidate’s authorized committee, or an agent of either of the foregoing.  This test parallels the three-pronged test in the 'coordinated communication' regulations in 11 CFR 109.21.  Therefore, as with the coordinated communication regulation, the proposed change to the definition of 'public communication' in 11 CFR 100.26 would expand the scope of communications covered by the party coordinated communication regulation to include certain communications over the Internet.  The Commission seeks comment on this result.
      Given the unique nature of the Internet, I believe that rather than change the definition of "public communications," and automatically include "certain communications over the Internet" in the existing rules, the question of what constitutes a "party co-ordinate communication" over the Internet should be the subject of a separate rulemaking.

      BRA prohibits candidates for State and local offices, and their agents, from using non-Federal funds to pay for any 'public communication' that PASOs a candidate for Federal office.  See 2 U.S.C. 441i(f).  Under the Commission’s regulations, an 'agent' includes any person who is authorized by a candidate for State or local office to 'spend funds for a public communication,' as defined in 11 CFR 100.26. 11 CFR 300.2(b)(4).  Thus, as a result of the proposed change to the definition of 'public communication,' a person would be an agent of a State or local candidate if he or she is authorized by that non-Federal candidate to pay for any Internet communication that is a 'public communication' under proposed 11 CFR 100.26.  The Commission invites comments on this result and whether it should consider further changing its proposed definition of 'general public political advertising' or 'public communication' in 11 CFR 100.26 in light of this result.
      The result seems overbroad to me.  The entire question should be examined separately from communications over more traditional media.

      The Commission is now considering whether to amend its regulations to make clear that the statutory exemption also applies to media activities on the Internet.  Specifically, the Commission is proposing to amend sections 100.73 and 100.132 of its regulations to indicate that any media activities that otherwise would be entitled to the statutory exemption are likewise exempt when they are transmitted over the Internet.  The proposed revisions would still require that the exemption extend only to those entities who are a media entity and who are covering or carrying a news story, commentary, or editorial but would extend the existing exemption to the same activities conducted on the internet by media entities.  In so doing, the Commission recognizes that media operations increasingly take place on the Internet.  The proposed revision would allow for the application of the media exemption to all forms of media activities on the Internet, whether it be through a website, e-mail, or some other form of Internet communication.

      "The Commission seeks comment on the proposed revisions to its regulatory media exemption for news stories, commentaries, and editorials.  The Commission also seeks comment on whether the proposed revisions are consistent with or required by the statutory language of the Act.  The Commission further seeks comment on the appropriate breadth of the exemption to media activities over the Internet.  Should the exemption be limited to entities who are media entities and who are covering or carrying a news story, commentary, or editorial?  Should the exemption be limited only to the Internet activities of media entities that also have off-line media operations?  The Commission notes that the proposed regulation expressly rejects a policy that only a bona fide press entity with an off-line component is entitled to protection in their on-line news stories, commentaries, and editorials.
      I am glad to see that the idea of "media entities" has been eliminated, as it is on its face an illegal attempt to license the "press."  Any media exemption should apply to any individual or group who is engaging in "media operations," regardless of how, and regardless of whether they confine themselves to the Internet.  If an activity would be exempt when practiced by the New York Times or Wall Street Journal, it should be exempt when done by bloggers or other web-based entities.

      The Commission also seeks comment on whether bloggers, whether acting as individuals or through incorporated or unincorporated entities, are entitled to the statutory exemption.  Can on-line blogs be treated as 'periodical publications' within the meaning of the exemption?  See 2 U.S.C. 431(8)(B)(i) and 431(9)(B)(i).  If not, why not?  Is the media exemption to be limited to traditional business models, meaning entities that finance operations with subscriptions or advertising revenue?  The Commission also seeks comment on whether on-line forums qualify for the exemption.
      Blogs and on-line forums should be entitled to the media exemption.

      The Commission further seeks comment on whether it makes any difference under the Act if a blogger receives compensation or any other form of payment from any candidate, political party, or political committee relating tofor his or her blogging activities?editorial content?  Would any such payments mean that the blogger is 'controlled' by a candidate or political party within the meaning of 2 U.S.C. 431(8)(B)(i) and 431(9)(B)(i), and therefore is not entitled to the exemption?
      Again, the question should be decided as it would be if we were discussing a traditional media source.

      The Commission is proposing new rules to address the treatment of uncompensated individual or volunteer campaign activity on the Internet.  Specifically, the Commission proposes the addition of two new sections to 11 CFR Part 100 to provide new exceptions from the definition of 'contribution' and 'expenditure..' Proposed 11 CFR 100.94 would create an exception to the definition of 'contribution' for certain volunteeruncompensated individual or volunteer Internet activity, while proposed 11 CFR 100.155 would create a parallel exception to the definition of 'expenditure' for the same activity.

      Under proposed 11 CFR 100.94 and 100.155, an uncompensated individual acting independently or as a volunteer would not make a contribution or expenditure simply by using computer equipment or Internet services to engage in Internet activities for the purpose of influencing an election for Federal office.  The Commission notes that the proposed rule would only apply to computer and other facilities to which the individual would otherwise have access.  The proposed rule would not permit the purchase of equipment by an individual or entity solely for the purposes of allowing another individual to participate in volunteer activity.  The Commission seeks comment on this approach.
      The approach seems reasonable.

      In AO 1998-22, the Commission concluded that even if an individual acting independently incurs no additional costs in creating a website that contains express advocacy of a clearly identified candidate, at least some portion of the underlying costs of creating and maintaining that website is an expenditure under the Act and must be reported if it exceeds $250 in a calendar year.
      This seems ridiculous.  If no additional money is expended, there is no expenditure.  This portion of the rule should be cancelled.

      The proposed rules in new sections 100.94 and 100.155 would supersede AO 1998-22 to the extent that it treats an individual’s independent use of existing computer or Internet services for Internet activity as an expenditure.  The proposed rules would also extend beyond the specific guidance provided in AO 1999-17 to clarify that these exceptions would apply to an uncompensated individual acting independently or as a volunteer without regard to whether the individual or another person owns the computer being used or where the volunteer activity is taking place.  For example, the proposed rule would permit a volunteer to use a computer or Internet service provided at a public facility, such as a library or school, or provided by a friend, without such activity being a contribution or expenditure.  The Commission, however, would continue to view the purchase of mailing lists (including e-mail lists) for the purposes of forwarding candidate and political committee communications as expenditures or contributions.  The Commission seeks comment on this approach.  If the computer or Internet service is provided by a corporation or labor organization, the rules at 11 CFR 114.9 would apply.  The proposed rules would thereby avoid disparate treatment of individuals or volunteers activities by those individuals who may not be able to afford the purchase or maintenance of their own computers or websites.  The Commission invites comments on this approach.
      This portion of the rules seems reasonable.  Regulation of expenditures would occur only when expenditures actually occur.

      The Commission also seeks comments on whether this exception should be extended to volunteers who receive some form of payment or reimbursementcompensation from a candidate or a political committee, such as transportation, subsistence, or supplies. reimbursement..
      Yes, I believe the exemption should apply.  If I volunteer to help a campaign at a certain place, and the campaign transports me there, I don't see how I can be "making an expenditure."

      Thus, an individual or volunteer producing or maintaining a website or blog, or conducting other grassroots campaign activity on the Internet, from that individual's own home or elsewhere, would not make a contribution or expenditure and would not incur any reporting responsibilities as the result of that activity.  For example, if an individual downloadsed materials from a candidate or party website, such as campaign packets, yard signs, and other items, the downloading of such items would not constitute republication of campaign materials.  In addition, even when the Internet activity is made in cooperation, consultation, or concert with a candidate or a political party committee, no contribution or expenditure would result and neither the candidate nor the political party committee would incur any reporting responsibilities.  Furthermore, if an individual forwardeds an e-mail received from a political committee, the forwarding of that e-mail would not constitute republication of campaign materials or be an in-kind contribution.  The Commission invites comments on this approach.

      'The Commission notes that existing Commission regulations regarding volunteer activity use the concept of volunteer in the context of an individual volunteering personal services to a candidate, political committee, or political party.  The proposed regulations would apply regardless of whether the individual's activities were known to a candidate, political party, or political committee.  The Commission seeks comment on whether it has authority to do this and whether the word "individual" or "volunteer" more accurately conveys the concept of when an individual, whether known or unbeknownst to the campaign, engaginges in Internet activity.'
      I believe the Commission does have the authority, and that the word "individual" is most accurate.

      The Commission further notes that corporations and labor organizations are prohibited from '[u]sing coercion, such as the threat of a detrimental job action, the threat of any other financial reprisal, or the threat of force, to urge any individual to make a contribution or engage in fundraising activities on behalf of a candidate or political committee.' 11 CFR 114.2(f)(2)(iv) (emphasis added); see also 2 U.S.C. 441b(b)(3).  Because the proposed revisions to 11 CFR 114.9(a) and (b) would expressly except the use of corporate or labor organization computers and Internet services from the definition of 'contribution,' the Commission seeks comments on whether additional rules are necessary to ensure that corporations and labor organizations do not 'coerce' their employees or others into engaging in Internet activities on behalf of a candidate or political committee.  Should such an exemption be avoided in that it could lead to inherently coercive situations?  Should it be premised on the corporation or union not directing the individual to engage in activity on behalf of a certain candidate or political committee?
      I don't see the need for additional rules.  The exemption should NOT be avoided.  However, a rule that the activity is not exempt if coerced is reasonable.

      The Commission certifies that the attached proposed rules, if promulgated, would not have a significant economic impact on a substantial number of small entities.  The basis for this certification is that State, district, and local party committees of the two major political parties; individual candidates, Federal office holders, and their agents; and other individuals who communicate over the Internet are not 'small entities' under 5 U.S.C. 601, because they are not small businesses, small organizations, or small governmental jurisdictions.  To the extent that other entities may fall within the definition of 'small entities,' the economic impact of complying with these rules will not be significant.
      It may be true that the party committees are not small entities, but non-officeholding candidates may well be 'small entities,' as well as "other individuals who communicate over the Internet."  Nor is it clear that the economic impact will be insignificant.



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