At yesterday’s Congressional hearing on the DISCLOSE Act, one of the Republican witnesses, William McGinley, testified that “the broad reach of the new definitions of independent expenditure… now appear to regulate Internet communication, including the liberal and conservative blogosphere.” The Center for Competitive Politics repeated this line today on its website.
This is a blatant attempt to kick sand in the eyes of lawmakers. The truth is, the DISCLOSE Act does expand the definition of independent expenditures subject to disclosure, but it does so using the Supreme Court’s own language. This will not put the FEC in the role of regulating bloggers.
At present, the law says “independent expenditure”,
which means an expenditure by a person –
(A) expressly advocating the election or defeat of a clearly identified candidate; and
(B) that is not made in concert or cooperation with or at the request or suggestion of such candidate, the candidate’s authorized political committee, or their agents, or a political party committee or its agents.
The DISCLOSE Act would expand paragraph A of the independent expenditures definition to state:
(A) that, when taken as a whole, expressly advocates the election or defeat of a clearly identified candidate, or is the functional equivalent of express advocacy because it can be interpreted by a reasonable person only as advocating the election or defeat of a candidate, taking into account whether the communication involved mentions a candidacy, a political party, or a challenger to a candidate, or takes a position a candidate’s character, qualifications, or fitness for office; and’’.
The new language comes directly from Wisconsin Right to Life II and Citizens United, where the Supreme Court clarified that express advocacy or its functional equivalent could be constitutionally regulated.
What does this have to do with blogging? Not much. The Federal Election Commission clarified four years ago that it would not be in the business of regulating the Internet. On March 27, 2006, the FEC unanimously approved its Internet Rulemaking. The Internet Rules allow individuals making political speech on the Internet the freedom to do so without registering with or reporting to the FEC. The exceptions to this general rule are political committees and candidates, who are still regulated whether on-line or off-line, and anyone who pays to place a political advertisement on another person’s webpage is subject to regulation.
In other words, even through the DISCLOSE Act expands what is covered by the term “independent expenditures” to include ads that take a position on a candidate’s fitness for office, the FEC is most likely to stand by the 2006 Internet rules and only reach PAID political banner ads; not bloggers.
You can also read our testimony submitted to the same hearing, here.