FEC: Internet Poltical ActivityLegal Center Files Comments in Fired Up Advisory Opinion Request A Missouri-based corporation named Fired Up has filed an Advisory Opinion Request ("AOR") with the FEC seeking guidance as to whether the corporation qualifies for the press exemption to the generally-applicable federal law prohibition on corporate political expenditures (AOR 2005-16). Fired Up operates a Web site for the purposes of endorsing and soliciting political contributions for Democratic candidates for public office; providing a progressive viewpoint on political issues of the day by publishing original news reporting; and providing commentary on mainstream media political news stories. The Campaign Legal Center filed comments with the FEC this week arguing that an organization whose stated purpose is to be partisan—to elect Democratic candidates and to solicit contributions for such candidates—does not qualify for the press exemption. To read the Legal Center's comments in response to draft AO 2006-15, click here. To view the Legal Center’s comments in AOR 2005-16, click here.
FEC Public Hearing on Internet Communications On June 28 and 29, 2005 the FEC conducted public hearings on the agency's rulemaking on political activity on the Internet. Twenty-two people testified, including the Legal Center's president and general counsel, Trevor Potter (on June 29). Click here to read the transcript from June 28, 2005. Click here to read the transcript from June 29, 2005.
Watchdog Groups Urge FEC to Exclude Bloggers from Internet Regulation; Say Soft Money Ban Should Apply to Online Activity by State Parties The Campaign Legal Center, along with other campaign finance watchdog groups, filed comments on June 3, 2005 with the Federal Election Commission urging the agency to adopt new rules that would largely exempt individuals, including bloggers, from regulation of their online political activities when they operate on their own Web sites. The groups supported a regulation proposed by the FEC that would apply campaign finance rules to paid ads placed on another person's Web site.
To read the Campaign Legal Center's comments, click here
To read the Alliance for Justice's comments, click here.
To read Joe Birkenstock's comments, click here.
To read the Black, Moulitsas, and Stoller comments click here.
To read Bob Bauer's comments, click here.
To read the Center for Democracy and Technology's comments, click here.
To read the Center for Individual Freedom's comments, click here.
To read the Congressional Sponsor's comments, click here.
To read English First's comments, click here.
To read IDPI's comments, click here.
To read OMB Watch's comments, click here.
To read the Online Coalition's comments, click here.
On Monday, April 4, 2005, the FEC's final Notice of Proposed Rulemaking (NPRM) for Internet Communications was published in the Federal Register. Public comment is due June 3rd. Click here for Internet Communications NPRM.
Debate over FEC Rulemaking on Internet Political Advertising The Legal Center issued a press release in response to comments FEC Commissioner Brad Smith made in an online interview that led many to believe that online political activity was threatened by the upcoming FEC rulemaking on Internet and coordination matters.
Click here to read the Legal Center's Press release, issued Friday, March 4th.
Click here to read the Statement of Senators Russ Feingold and John McCain On Internet Communications issued March 8th.
Click here to read FEC Commissioner Ellen Weintraub's own response to the statements made by Brad Smith issued Tuesday, March 8th, entitled, "Bloggers of America: Chill Out!".
Click here to read Election Law blogger Rick Hasen discussion of the related issues.
Click here to read a Roll Call article entitled, "FEC May Exempt Bloggers," March 10, 2005.
FEC Internet Rulemaking:
In 2002, the Congress passed the Bipartisan Campaign Reform Act of 2002 (BCRA) (a.k.a. the McCain-Feingold bill). Once the law was passed, the Federal Election Commission (FEC), adopted rules and regulations to implement the new law. Soon after FEC adoption of these new rules, the U.S. House sponsors of BCRA, Congressmen Christopher Shays (R-CT) and Marty Meehan (D-MA), filed a law suit against the FEC in federal district court (Shays v. FEC), arguing that many of the new FEC rules were inconsistent with BCRA's text and undermined congressional intent.
In September 2004, the district court issued a decision in Shays v. FEC , 337 F. Supp. 2d 28 (D.D.C. 2004). The court struck down 15 separate regulations, finding that the FEC had repeatedly misinterpreted BCRA. The court found that one regulation "runs completely afoul" of basic law, id. at 63; another FEC regulation "severely undermines [the Federal Election Campaign Act's] purposes," id. at 70; and yet another "would render the statute largely meaningless," id. at 79. The court ordered the FEC to re-write the invalidated regulations. Among these invalidated regulations are two related to Internet activity.
The FEC has divided the Shays-required regulation re-writing into nine separate proposed rulemakings and scheduled rulemaking to begin in January 2005. At the FEC's March 24th public meeting, the Commission approved the Notice of Proposed Rulemaking ("NPRM") on Internet Communications, giving the public 60 days to comment on the issue. A public hearing is scheduled from June 28, 2005.
Click here to view the NPRM.
Click here to view the letter to the FEC from Congressional Sponsors of BCRA regarding the Internet Rulemaking (March 22, 2005).
Use of the Internet:
In the overturned rules originally crafted by the FEC, paid Internet advertising was excluded from the definition of "public communication." See 11 C.F.R. § 100.26. Consequently, under the invalidated FEC regulations, Internet political advertising by candidates and parties, and paid advertising coordinated with those groups, could be paid for with "soft money" (i.e., funds not subject to federal law disclosure requirements, contribution limits and restrictions on corporate and labor union funds). The fundamental purpose of BCRA was to outlaw the use of soft money in federal elections. The district court in Shays found that Congress did not exclude paid Internet political communications from its definition of "public communication"—the FEC did. Shays, 337 F. Supp. 2d at 111. The court ruled that the FEC's wholesale exclusion of paid Internet advertising from federal campaign finance regulations was an impermissible interpretation of BCRA.
The upcoming FEC rulemaking on Internet paid advertising is not aimed at Internet activity by bloggers, Internet news services, and citizens acting on their own. Instead, the court has ordered the FEC to re-write its regulations in a manner consistent with Congress' intent to prohibit the use of soft money for paid Internet political advertising by candidates and parties, and political advertising coordinated with these groups.
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