What's At Stake
Leslie Harris, Senior Consultant, CDT
The Internet is a powerful forum for the exercise of First Amendment rights and protects our right to speak out during elections and gather news and commentary about candidates. Since the late 1990s, the Federal Election Commission (“FEC”) has been trying to figure out whether and how to apply campaign finance laws to this young medium. The campaign finance laws are intended to protect the integrity of elections by minimizing the corrupting influence of big money. Six years ago when there were troubling signals from the FEC that it intended to apply campaign finance laws to the Internet with a heavy hand, the Center for Democracy and Technology published a seminal report on the application of campaign finance law to the Internet. That report, “Square Pegs and Round Holes: Applying Campaign Finance Law to the Internet Risks to Free Expression and Democratic Values,” examined the unique characteristics of the Internet -- its decentralized, interactive and user controlled and inexpensive nature. The report concluded that the Internet promised to lower the barriers to political participation, broaden the number and diversity of political speakers, and encourage new forms of political commentary. We urged the Federal Election Commission to leave this new medium alone, so that it could develop unhindered by complex regulation. Failure to recognize the importance of this new medium, the report concluded, would undermine public goals of reducing the importance of big money in politics and otherwise strengthening the democratic process.
At the same time, CDT’s 1999 report recognized that “ultimately …it is likely that [campaign finance statute] will have to be amended to take into account the unique aspects of the Internet,” but the report urged that such an amendment be delayed until there was a full record to review. Regulators agreed and backed away from proposed campaign finance rules which would have seriously chilled this young medium. Citing CDT’s report, the FEC adopted a narrow rule that maintained a “hands off” position. When the Bipartisan Campaign Reform Act (“BCRA”) was being implemented in 2002, the FEC again left independent activity on the Internet largely unregulated.
Last fall, however, a federal judge struck down the FEC’s decision to exclude the Internet from BCRA (in a challenge brought by several of the Congressional sponsors), sending the issue back to the Commission for further rulemaking. The FEC is now again considering how to apply the BCRA to independent political activity on the Internet.
In the last election, the Internet had a new and significant impact on the presidential campaign. By lowering the financial barriers to entry into national politics and political commentary, the Internet re-energized political activists and gave rise to new voices and new forms of news and commentary. On the one hand, it served as an organizing and fundraising tool, not only for challengers but also for incumbents, becoming an integral part of the campaign infrastructure. At the same time, it served as a forum for “Bloggers” and other independent publishers and demonstrated it’s extraordinary potential as a medium for alternative voices, democratic discourse and independent political speech. The Internet’s low financial barriers to entry gave rise to thousands of new political actors, energized activists and provided an important antidote to years of declining civic participation. There were a record number of small online donors, diluting although not eliminating the power of traditional big money interests.
An untold number of individuals and groups launched political websites, some supporting candidates and others encouraging voter registration and detailing candidate positions. Bloggers provided a diverse alternative voice to mainstream media, often taking the lead in breaking controversial stories and offering otherwise unheard points of view. New social networking applications such as Meet-Up and Friendster unleashed a torrent of “peer to peer” political marketing, which in turn led to more independent political activity, both on and off line. The growth of online politics was fueled not only by activities generated by campaigns and bloggers, but in almost equal measure by independent citizens, who individually and in small groups, took advantage of the Internet’s unique democratic design and low financial barriers to entry to make their voices heard. Fully 75 million people -- 37% of the adult population and 61% of online Americans -- used the Internet to get political news and information, discuss candidates and debate issues in emails or participate directly in the political process by volunteering or giving contributions to candidates.” Click here to read the full report
With success comes scrutiny. The FEC is now turning its attention back to the Internet, asking whether and how to regulate it. The question now is whether the Internet will continue to provide new opportunities for independent reporting, commentary, and political activism, or whether mechanistic application of campaign finance laws will undermine the medium’s special value as a First Amendment forum for citizen political advocacy. It is not possible to overstate the importance of this rulemaking to the future of independent political speech on the Internet. The FEC now must write the “rules of the road” for online election activity, a “line drawing” exercise that will shape the future of political speech on the Internet for years to come and impact innovation in the development of applications that support online political activity. If the Internet is to be preserved preserve the Internet as an open, accessible medium supporting alternative voices and independent commentary in the election process then a new policy framework must be developed which recognizes the special nature of this First Amendment forum.
This is a seminal moment in the development of the Internet. There is little doubt that the robust political activity by ordinary citizens on the Internet and the money they raised from small donors in the election process helped to strengthen and safeguard democracy. Public policy should therefore be supportive of those activities and of the platform which made it possible--- the Internet. It would be ironic indeed if the Commission’s quest to apply campaign finance to the Internet in order to reach big money interests instead stifled political speech by ordinary individuals. That is why supporters of independent political speech on the Internet--- Internet and free speech advocates, political activists, bloggers, online political professionals and experts, applications developers and academics across the political spectrum --- must join together to speak in one voice to protect independent political activity on the Internet at the FEC. That is why signing on to the principles (link back) is so important.
