FEC Draft Rule Looks Good for [Non Corporate] Bloggers

Update: The full text of the FEC document is available via the link at the bottom of this post.

Democracy Project has obtained a copy of the Federal Election Commission's request for comment (a Notice of Proposed Rulemaking) on a draft rule for proposed changes to the FEC's definition of "public communication" as it pertains to the Internet. It will consider the rule change tomorrow. The document is a draft and a solicitation of commentary, and not a final ruling.

A preliminary reading of the document indicates that communication about candidates via blogs or emails will not be considered a "public communication," and so will not be considered an in-kind contribution to that candidate.

In short, follow the money. If there is no compensation involved, the FEC will not consider Internet activity to be an expenditure for a candidate. This will be true, the draft proposes, in this and other circumstances:

Again, this document is written to provoke discussion and is filled with questions about the draft rule.

We will be adding commentary to this post this evening.

Update: The crux of the issue before the FEC, as has been stated before, is the need to address certain issues pertaining to the Internet as ordered by U.S. District Judge Colleen Kollar-Kotelly, who in Shays v. Federal Election Commission ruled that the FEC could not exclude Internet activity from the Commission's rule defining "public communication," as it had earlier attempted to do. This tossed the issue back to the FEC, and the draft Notice of Proposed Rulemaking (NPRM) for tomorrow's meeting of the FEC addresses that order.

In this NPRM, the Commission proposes "to retain a general exclusion of Internet communications from the definition of 'public communication,' except for those advertisements where another person or entity has been paid to carry the advertisement on its website . . . ."

More to come.

Update II: As we continue to analyze the NPRM's proposals, it's important to bear in mind that the uproar within the blogosphere, which has finally been picked up by the MSM, is chiefly responsible for the move to retain a general exclusion of Internet communications from increased federal regulation. And absent Bradley Smith's interview with CNET, in which he warned bloggers of the potential for this regulation, the blogswarm that ensued obviously wouldn't have occurred. A great deal of work has been done in order to bring us to this point, and much remains to be done. But the blogosphere has indeed flexed its muscles here, and we've been heard.

Update III: This comment is by Brent Tantillo, also of the Democracy Project. The main wrinkle in the proposed FEC rules, to my eye, is regarding the use of corporate facilities or property (such as computers) for blogging or other Internet activities that could constitute “public communication”. The proposed rule allows “stockholders and employees of the corporation…[to] make occasional, isolated, or incidental use of the facilities of a corporation for individual volunteer activities in connection with a Federal election and will be required to reimburse the corporation only to the extent that the overhead or operating costs of the corporation are increased.” So what happens if an employee engages in something more than incidental use of corporate facilities? Does this constitute a “public communication” under the proposed rules? Will the corporation be fined or subject to criminal penalties for nondisclosure of such activity? By only excluding Internet activities that occur in "public facilities", or in one's residence, corporations may be subject to monitoring and banning any sort of blogging by employees on the premises. Considering that most blogs are read during the workday, this could be a particularly heinous limit on free speech.

Update IV: Eugene Volokh raises the same issue that Brent examines in Update III above. The text of the document may be downloaded by clicking the link just below.

Update V: Brent here again -- As Win noted in Update IV, Eugene Volokh raises several of the same questions I did regarding the proposed FEC rules, which I believe for the most part can be answered by a thorough review of the proposed rule (which can be downloaded below). Volokh asks the following important questions:

Regarding his concerns, as to whether blogging is possible at a public university, such as UCLA, or an Internet cafe, proposed rule § 100.94(a)(1)(2) sweeps that away easily stating that:

In my view, a public university fits squarely into the definition of "public facility." Unfortunately, those professors teaching at private universities, which are often incorporated, may not be afforded the same exclusion.

While there is no specific exclusion for blogging or Internet activities that occurs in another friend's home, § 100.155(a)(1)(3) provides an exception for blogging in one's own residence, which would probably apply equally for blogging in a friend's home:

It's sad that we're having this conversation at all. Each individual encroachment by the government to regulate the Internet strips away a bit more of its unique and special character as the world's greatest laboratory for freedom of expression. While many of the exclusions included in the proposed FEC rules are broad enough to capture individual bloggers, what about incorporated blogs such as Red State, Andrew Sullivan, Kos, or Wonkette? According to the proposed rules, whether their activities constitute "public communication" will be determined on a case-by-case basis.

Update VI: Winfield this time. The FEC draft is just that: a draft. It is a solicitation for comment from concerned parties, and no one can be more concerned than bloggers.

A disproportionate number of bloggers are lawyers. We think that a coordinated effort to petition the FEC regarding this draft will strengthen our hand. Working together, we can produce a document that is more concise and better expresses our concerns.

To that end, we will, in the coming days, contact some of you about this effort, and we invite informed suggestions from those who have read the FEC draft.

The full text of the document is available at the link below.

Download file