Another view of HR 1606

Writing on the election law listserv (in follow up to this earlier post), Joe Birkenstock writes (republished with permission):

Well, after two days of deafening silence, I assume we can now consider at least one part of the debate over HR 1606 to be resolved. It appears that 1606 would indeed lay to rest the 441b corporate prohibition with respect to the funding of any advertisement, no matter how expensive and no matter how thoroughly coordinated with candidates or party committees, as long as it (1) avoids express advocacy and (2) can be said to have been communicated "via the Internet."

To be perfectly clear, there is a significant degree to which I have no objection to that outcome. "Everything other than express advocacy" is obviously an extremely large category of speech, and it includes lots of very important grass-roots lobbying and true issue advocacy which I agree should be (and are) off-limits to FECA's limits and prohibitions. That said, I'm convinced there's also lots of purely campaign-related activity included in that category as well - activity to which I think it's perfectly appropriate to apply FECA's requirements, especially the corporate prohibition. This highlights, therefore, the issue that I'm afraid some of my colleagues and friends who support this bill are failing to appreciate: deciding whether or not to use express advocacy as the only dividing line between campaign and issue speech. This is an enormous, first-order question of campaign finance law.

Furthermore, consider the context in which this bill is now being offered: the WRtL litigation may yet produce a new and workable standard for defining grassroots lobbying, and the Fired Up! AO has now provided other appropriately broad protections for even highly partisan and opinionated internet media activity. This convinces me that 1606 is not about protecting bloggers or making sure the law respects the newness and uniqueness of this new, unique medium - it's about legislating the express advocacy standard into place as broadly as possible going forward.

To those 1606 supporters who hold less than an acidic level of hostility to anything that can be labeled "campaign finance reform," I repeat: this is a bill you will regret having helped pass.

Posted by Rick Hasen at March 9, 2006 01:58 PM