March 24, 2006

A First Look at the New Proposed Final Internet Rules

Of course, I have only had a chance to quickly skim the new proposed final internet rules from the FEC and this handy summary from Commissioners Lenhard and Weintraub. I'm not going to summarize the main points, which the Lenhard-Weintraub document does.) Instead, a few initial reactions:

1. The commissioners and staff were obviously working on this up to the last minute. Page 83 of the document (page 84 of the pdf) shows that they don't have the final version of their explanation and justification for the Labor and Corporate facilities rule done yet. I don't know what specifically the haggling was about, but, like these rules or not, they were obviously the product of thoughtful---and extended---deliberation. (We have yet to see if there will be any commissioners who will vote against this final product, or if any changes will be made between now and the Monday 10 am meeting.

2. As a matter of substance, this is about everything that the Internet political community could hope for: broad exemptions for most political activity on the Internet, except by those entities that are already highly regulated (such as political committees and candidates). On top of the explicit, clear, and broad exemptions for election-related blogging and other political activity (even if done by incorporated blogs under most circumstances), the draft FEC document went out of its way to expand the media exemption to cover the Internet, and to make clear that the term "periodical publication" is meant to apply broadly to any kind of reporting or commentary, no matter how updated and no matter how partisan it might be. The proposed rules also create very generous safe harbors for individuals engaged in independent political activity on corporate or union owned computers.

3. On the whole, I think these are very good rules in preserving robust political speech on the internet that takes place without much danger of the corruption of candidates. My one personal disappointment is the FEC draft's decision not to require disclaimers on blogs where the bloggers have been paid by campaigns. As I've argued, such disclaimers would serve to provide valuable information to readers, information much more easily available then that which can be culled from periodic reports filed with the FEC listing their vendors. I am also concerned with some language in the explanation (page 62) allowing for campaigns and committees to reimburse bloggers for certain expenses without it counting as "compensation" under the rules.

4. Assuming these rules pass Monday, the big question is whether the reform community will challenge them as insufficient under the district court's directive in Shays and/or beyond the FEC's power to regulate. (For example, does the FEC have the statutory authority to extend the media exemption to Internet activities in its rules?) If the rules are challenged, how will the district court react to these new rules? One thing going in the rules favor is that the explanation and justification section appears to be well done. It is readable, understandable, and full of common sense.

5. What does this mean for the fate of the dueling congressional bills on this topic---HR 1606 and 4900? Congress could still act, which could well moot this rulemaking, but I suspect there will be a great attraction to putting this on the back burner in Congress if others read the FEC rules as I do.

Posted by Rick Hasen at March 24, 2006 04:15 PM