Yesterday, the Washington State Public Disclosure Commission held a hearing on the rise of political activity over the internet, and to discuss what new ways internet political activity should be regulated, if at all
The Washington PDC prides itself on staying ahead of the curve. For three years running, Washington State’s campaign disclosure program “topped the charts at number one in the country, with particularly strong performances in the areas of Electronic Filing and Disclosure Content Accessibility,” according to Grading State Disclosure 2005, a comprehensive, comparative study of candidate campaign finance disclosure laws and practices in the 50 states. Bob Stern, President of the Center for Governmental Studies and witness before the PDC, predicted that Washington would top the charts again.
Washington’s Commissioners were rightly interested in a future of politics and political regulation in a future of increasing internet activity. After all, a September 20, 2006 report by the Pew Internet & American Life Project shows that on “a typical day in August [2006], 26 million Americans were using the internet for news or information about politics and the upcoming mid-term elections. That corresponds to 19% of adult internet users, or 13% of all Americans over the age of 18.” ActBlue, a relatively new organization has already raised $25M in internet contributions for Democratic candidates. Senator Barack Obama’s “second-quarter fundraising haul of $32.5 million far outpaced the rest of the presidential field … About a third of it — $10.3 million — came over the Internet, according to the Obama campaign, and 90 percent of the online donations were under $100. Half were $25 or less.” (“Obama’s Internet Fund Tops All.” Washington Post, July 17, 2007). Even libertarian Republican “Ron Paul could be on his way to raising $50 million from about 100,000 contributors by early 2008, given his prowess as a ‘second tier’ Internet candidate.” (Murray Sabrin, “Will Internet Make Obama and Ron Paul the Presidential Candidates?,” USA Daily (July 24, 2007)).
It is easy to suppose that this increase in activity requires an increase in regulation. But increased activity is not the problem. Small, more democratizing donations are coming in and consumers of political news are better informed than ever. The internet is working.
The perceived need for rules does not flow from the rise of political activity over the internet. Rather, the need flows from campaign finance regulation itself. Campaign finance law after McConnell, federally and in the fifty states, is moving steadily away from bright line standards of express advocacy to more vague standards, namely, those found in the regulation of ads that “promote, support, attack or oppose” candidates. the so-called PASO standard.
PASO is arguably an acceptable standard for a state party committee, and it was the sophistication of the state party committee that led the Supreme Court to uphold PASO. But how long would a blogger pause over a post if he first had to decide whether that post “promotes” the candidate he is writing about? When questions of promotion or opposition, rather than express words of election or defeat, mark the line between bliss and governmental obtrusion, bloggers may choose not to discuss candidates at all. Once the express advocacy standard is gone, only the press exemption can give bloggers the comfort they need to discuss candidates and the issues that surround them. Regulations do apply, of course, when a political committee pays for advertising online, just as paid advertising over television or radio is regulated whereas news, opinion, and commentary over television and radio is not.
This point was not lost on the FEC when the FEC saved political blogging for a Congress interested but unwilling to correct the actions of a federal judge too eager to place BCRA’s PASO communications onto the internet. If yesterday’s hearing is any indication, the point also won’t be lost on the Commissioners and staff of the Washington Public Disclosure Commission.
