March 14, 2006
By Michael E. Toner, Special to Roll Call

Congress Should Pass Hensarling’s Bill on Politics and the Internet

The House of Representatives is scheduled to take a final vote this week on the Online Freedom of Speech Act, sponsored by Rep. Jeb Hensarling (R-Texas). If enacted, the Hensarling bill would be a crucial first step in protecting and preserving the freedom of online politics in this country.

The Hensarling bill would codify the Federal Election Commission’s current regulation, later struck down by a federal judge, exempting the Internet from the prohibitions and restrictions of the McCain-Feingold campaign finance law.

The FEC regulation exempted the Internet based on the plain meaning of McCain-Feingold’s statutory definition of a “public communication.” Congress identified a wide array of mass media that would be subject to regulation—including broadcast, cable and satellite communications, newspapers, magazines, mass mailings, telephone banks and even “outdoor advertising facilities.” Notably, Congress did not refer to the Internet in this key statutory provision of McCain-Feingold. Congress identified virtually every type of mass media in America except for one: the World Wide Web.

In keeping with the plain meaning of the statute, the FEC properly exempted the Internet from the McCain-Feingold law. The FEC viewed Congress’ omission of the Internet not as an accident or oversight, but rather as a conscious, informed decision that the World Wide Web should not be subject to the many restrictions that McCain-Feingold applies to other types of mass communication.

In addition to the plain meaning of the statute, there is no evidence in the legislative history that Congress intended to regulate or restrict online politics when it enacted McCain-Feingold. Given that such a result would potentially affect the activities of millions of online activists, the fact that there was no floor discussion of the subject is powerful evidence that Congress did not intend to restrict the Internet when it enacted McCain-Feingold.

Regrettably, a federal judge in Washington, D.C., disregarded the plain meaning of the statute and invalidated the FEC’s regulation exempting the Internet from McCain-Feingold. The judge also ordered the FEC to open a rulemaking to consider broadening regulation of political activity on the World Wide Web. The Hensarling bill would overturn the judge’s erroneous ruling and would codify by statute the FEC’s regulation exempting the Internet.

Many prominent Members of Congress who voted for McCain-Feingold have endorsed this result. Senate Minority Leader Harry Reid (D-Nev.), the lead sponsor of a Senate companion bill to the Hensarling legislation, sent a letter to the FEC expressing “serious concerns” about the commission’s Internet rulemaking that was initiated in response to the judge’s decision. Reid noted that the Internet “has provided a new and exciting medium for political speech” and that “regulation of the Internet at this time, with its blogs and other novel features, would blunt its tremendous potential, discourage broad political involvement in our nation and diminish our representative democracy.”

In addition, Sen. John Kerry (D-Mass.) and then-Sen. John Edwards (D.N.C.), both of whom voted for McCain-Feingold, filed written comments with the FEC during its rulemaking proceeding, stating categorically that “Congress did not intend to create new barriers to Internet use when it passed [McCain-Feingold].”

Moreover, strong policy reasons support exempting online political speech from the McCain-Feingold law. As many commentators have noted, the Internet is virtually a limitless resource—a place where millions of Americans can communicate every day about politics at little or no cost. The Supreme Court noted in Reno v. ACLU that “through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.”

Unlike television and other traditional media, which are generally scarce and have significant barriers to entry, an individual can communicate with millions of people online at virtually no cost in an interactive and dynamic way, and the political speech of one person does not and cannot interfere with the speech of anyone else. In light of this, it is simply not possible for any person or entity, no matter how much money they spend, to dominate political discourse on the Internet.

The primary constitutional basis for campaign finance regulation is preventing corruption or the appearance of corruption. Where campaign finance regulation is meant to ensure that money in politics does not corrupt candidates or officeholders, such rationales cannot plausibly be applied to the Internet. As bloggers Markos Moulitsas Zuniga and Duncan Black recently pointed out:

“The purpose of campaign finance law is to blunt the impact of accumulated wealth on the political process, but this is not something that occurs online. While wealth allows a campaign or large donor to dominate the available space on TV or in print, there is no mechanism on the Internet by which entities can use wealth or organizational strength to crowd out or silence other speakers. ... In sum, the Internet fulfills through technology what campaign finance reform attempts via law.”

The Internet is not only a unique medium that defies the legal premises for regulating political speech, it also is a democratizing influence on American politics. It is a leveling force that has allowed millions of people across the political spectrum—whether through e-mail, blogs, Internet discussion groups, or a Web site—to organize and voice their support for the candidates of their choice at virtually no cost.

Sen. Mitch McConnell (R-Ky.) has observed that the Internet “is potentially the greatest tool for political change since the Guttenberg press. It empowers the ordinary citizen to become a publisher, a broadcaster or a political commentator with a worldwide audience. It is an extraordinary tool for citizens seeking to organize with like-minded people to exercise their First Amendment freedom to petition the government and speak out on elections and issues.”

I am hopeful that Congress will take action to protect the vitality and freedom of online politics. Passage of the Hensarling bill in the House this week would be an important first step.

Michael E. Toner is chairman of the Federal Election Commission. The views expressed are those of Mr. Toner and not of the Federal Election Commission. Melissa Laurenza contributed to this commentary.

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