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By krempasky Posted in FEC — Comments (0) / Email this page » / Leave a comment »

What follows is a transcript of the introductory portion, of the Internet Advisory Caucus' panel on the FEC's rulemaking process. McCain-Feingold in Cyberspace.

This transcript portion includes remarks by Federal Election Chairman Scott Thomas. A full index of panel transcripts is available here.

Thank you, Michael. Well, thank you for having me here, I will read, a little bit of my talking points outline just because I want to make sure I get it said correctly. But, I suppose at the outset, I would just want to note that the Federal Elections Commission is your Commission, it is, uh, designed to try to make the campaign finance laws that Congress has passed work, and work effectively. So, what we’re trying to do as Commissioners, and as a body, is to try to pull together all of the various existing statutory provisions that are on the books and try to, basically, fit internet technology into those, uh, those rules. And we are going to discover, I think, that it’s not easy, I think, we are looking forward to the proceeding that we are undertaking, because it will help us learn a lot, and it will help, I think, people out there learn a lot about how these laws fit together.

But basically, what we are talking about right now, the immediate concern, is this Internet rulemaking that the Commission has undertaken. I would just say, for people who are, first of all, interested in “how can they be heard?” We are now guessing that the, actual Notice of Proposed Rulemaking is going to be published at the Federal Register on, April 4th. And, we have built in a 60-day comment period from that publication date so, people will have roughly until June 3rd to submit any comments that they might have about that Notice of Proposed Rulemaking.

That rulemaking is designed to address, mostly a court’s ruling that the Commission’s current blanket exemption in the party soft-money and coordination rules for everything internet-related is simply too broad. The court, in essence, said that the statutory term quote, “public communication,” end quote, which includes any form of general public political advertising had to be read to include at least some forms of internet activity. In the Coordinated Communication context, the court said that the Commission’s blanket exemption, quote “...severely undermines FECA’s purposes...” end quote. Fairly strong message.

The Internet, we must all acknowledge, is not always a cost-free political tool. Reports are kind of hard to come by, but there have been reports indicating that somewhere between $15 million and $25 million dollars was spent for internet-related political advertising in 2004. It also has been reported that this form of advertising is growing much faster than other, traditional forms. So, there is the potential for so-called “big money” to get involved in political advertising on the Internet.

Now, the FEC has put out for comment a Notice of Proposed Rulemaking that continues to broadly exempt Internet communications from the party soft-money and coordination rules that depend on that “public communication” definition. The only change suggested here is to treat as a public communication internet advertising where one person pays to place such advertising on another person’s website. This is designed to reach the most obvious situations where significant money could be involved. Now, the proposal as written would not affect the content that a state or local party puts on its own website. So, parties could continue to treat website costs as an overhead expense. It would not treat as a coordinated communication whatever uh, an individual, a business, a union, or a blogger, whether incorporated or not, puts on its own website. It would not treat as a coordinated communication what individuals or bloggers send or receive via email. And, placing a link to a candidate or a party committee’s website would not be a coordinated communication.

Now, the proposal that we have put out for comment also addresses the disclaimer requirements in existing law. And, it actually relaxes the current rules. Under the existing rules, an individual, a blogger or any other person that sends “unsolicited” email with express advocacy or a federal contribution solicitation to over 500 recipients, must indicate who paid for the communication, and whether it was authorized by any federal candidate. The term “unsolicited” currently means that the recipients have given no prior indication that they uh, want to receive email from the sender. In essence, listserv situations where persons have given authorization for inclusion on the list escape this “unsolicited” test. However, my “Angry Aunt Betty’s” email to a list of 501 like-minded friends might be deemed unsolicited email that falls under the disclaimer requirement.

So, under the Draft Proposal that’s out there for comment, the Commission would redefine unsolicited to cover only situations where the sender has paid some third party for the list of recipients. This would mean individuals, bloggers, and other organizations sending emails won’t have to worry about disclaimer rules, if the list of recipients has been developed without paying for it. For example, by persons simply joining the organization’s listserv. This change is designed to require disclaimers only in what could be described as “political spam.” Political spam – situations where valuable lists are purchased by the sender to spread an express advocacy or solicitation message broadly.

The Proposal we’re putting out also seeks to, in essence, relax the rules that relate to individuals acting independently and without compensation, to use their home or publicly-accessible computers to expressly advocate for or against candidates. This statute, and the Commission’s rulings, have long recognized the ability of individuals acting as “volunteers” for a candidate or a party to do this, but with regard to “independent” activity, there had been some indication that the Commission didn’t feel there was a legal allowance. So, this proposed regulation we’re putting out for comment would exempt independent express advocacy using computer technology, the same way, that providing volunteer support to a candidate or a party is now exempted.

In this, notice we also are out there seeking comment on the media exemption that Michael referred to, and we are asking folks to help us to try to sort out how you would define who would be entitled, and should be entitled to that media exemption. We are hopeful that these kinds of issues will generate helpful comment. We urge everyone out there to give us your thoughts. If you are just itching to get going and don’t want to wait for the publication in the Federal Register on April 4th, you could go to the FEC’s website right now, and you could look at the agenda document which serves as the basis for that notice which will be published. And you could start reading the kinds of areas where we are interested in seeking comment. We hope that people will express careful legal analysis first. As I’ve noted, we’re dealing with lots of legal terms that have to be sorted out. And, we understand there might be some uh, “rage” lurking beneath the surface for lots of folks interested in this rulemaking. But first and foremost, we need your help in terms of giving us careful thought about how these legal terms actually can be applied in a way that will allow the core provisions of the campaign finance laws to remain intact, but at the same time, will allow our citizenry full freedom to go ahead and express their views in the campaign process.

MC: Thank you, Scott. If you could, um, indicate when the 60-day clock starts with respect to uh, public comment.

ST: Well, if this is published on April 4th, that would be the date the clock would start.

MC: OK. Thank you. Mike Krempasky.