The co-authors of McCain-Feingold’s House companion bill, Reps. Christopher Shays (R-CT) and Marty Meehan (D-MA), were not pleased. They sued the FEC in part due to that omission, and successfully invalidated 15 FEC regulations. In response, the commission took another crack at regulating online political speech. In 2006, it codified a new definition of “public communications,” one that specified which types of digital speech were covered.
The resulting rule, finalized in 2006, explicitly excluded political communications on the internet from regulation, provided those behind the communications were not compensated for their work by a political committee. It was a solution that protected blogs and other popular forms of online political speech but still encompassed digital political advertising.
That standard came to be known as the “internet exemption.” The rule establishing it passed unanimously, received broad bipartisan praise. Those doing the praising just didn’t know then that they had paved the way for the heyday of political blogging.
THE AGE OF THE BLOG
Critics of the FEC’s approach did sense a slippery slope. University of California-Irvine law professor Rick Hasen, an expert and longtime writer on campaign finance law, predicted that efforts to exempt online news content from regulation would eventually be exploited by special interests.
“As everyone gets to own the equivalent of a printing press, and everyone can become a journalist, the corporate and labor limit on campaign activity stands to be swallowed up by the media exemption,” Hasen wrote in 2005. In a prescient warning nearly five years before the Supreme Court’s decision in Citizens United vs. FEC, Hasen added, “Especially if limits on independent corporate and union election-related activity disappear, disclosure of funding sources become especially important.”