The Committee on House Administration is scheduled to mark-up the ‘DISCLOSE Act’ today at 1 p.m. The Democratic majority plans to introduce a manager’s amendment as a substitute for the legislation, H.R. 5175 (the Senate version is S. 3295).
The Daily Caller reported yesterday that the fixes to the ‘DISCLOSE Act’ will include an update to the language governing Internet political speech. Patton Boggs attorney William McGinley and the Center for Competitive Politics pointed out that the statutory language would have swept the online arena in the FEC’s regulatory reach for the first time.
According to a draft version of the 87-page “Amendment in the Nature of a Substitute to H.R. 5175,” the bill attempts to fix the problem by changing the broad term “communication” to “public communication,” which is the language the FEC used in its regulations exempting Internet political speech from government control.
We’re encouraged that Democrats in Congress recognized their clear drafting error and seem to be taking steps to correct it. This illustrates, though, the folly of drafting a bill in secret without bipartisan negotiation and rushing it through the legislative process in the late stages of an election year.
According to a quick analysis by CCP, the new language would (1) change the definitions involving Internet regulation to bring the bill in line with the FEC regulations (although it still doesn’t include the Internet in its media exemption), (2) make clear that the provision banning U.S. subsidiaries with more than 20 percent foreign ownership doesn’t apply to PACs, and (3) provide a “safe harbor” for the coordination regulations to protect “coordination based solely on sharing of information regarding legislative policy position.”
GOP staff distributed a statement yesterday detailing the “Hidden Consequences of the DISCLOSE Act.” Nearly all of the most onerous provisions in the bill noted by the minority would remain. This amendment just proves how sloppy the Democrats were in drafting this bill. Democrats also plan to offer amendments to the bill adding the “Fair Elections Now Act”—taxpayer financing of congressional campaigns—and Rep. Michael Capuano’s “Shareholder Protection Act“—requiring advance approval by shareholders for the political spending plans of business corporations. It’s not clear that the latter would be germane to the committee. Capuano, also a member of the House Financial Services Committee, had a hearing for his bill in March in that committee.
The Internet provision in the coordination section still leaves potential for bloggers to be investigated by the FEC for political advocacy. The bill’s media exemption [Sec. 324(b)(4)] specifically carves out content in a “news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication…” [emphasis added]
What about content distributed through the Internet? What about paid staffers at RedState.com or HuffingtonPost.com who advocate for or against candidates as part of their new media models? Are they any less deserving of the full protections of the First Amendment than the dead-tree editorial pages of the New York Times or a dominant broadcasting network such as FOX News? It would seem so, according to congressional leaders—why else would the majority not include an Internet clause in the media exemption?
The theory behind their reasoning is that journalists are somehow more deserving than grassroots political groups when it comes to First Amendment protections for free speech. In Citizens United v. Federal Election Commission, the Supreme Court specifically rejected this theory of a two-tiered First Amendment: “Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendment’s original meaning would permit suppressing media corporations’ political speech,” Justice Anthony Kennedy wrote for the majority. The press is an activity (publishing or distributing content)—not a class of special people deserving of greater First Amendment rights than other associations of people who incorporate their group (like nearly all media companies).
The Center for Competitive Politics has been attacked by pro-regulation groups for raising this issue (see our recent piece in Reason.com). Craig Holman of Public Citizen likened us to Sarah Palin railing about “death panels.” But a few recent cases of politicians attempting to silence their political opponents on the Internet highlights the threat to free political speech posed by incumbents and powerful politicians.
TechCrunch reported yesterday that Pennsylvania Attorney General Tom Corbett, a Republican, subpoenaed the micro-blogging service Twitter. He sought the identity of two Tweeters who talked trash about his record. As Prof. Eugene Volokh noted, this is a bizarre attempt by Corbett that doesn’t seem to be grounded in any sensible reading of Pennsylvania’s criminal code. It seems to us to be a pretty good example of a politician seeking to silence dissent and uncomfortable criticism—but, thankfully, there aren’t campaign finance regulations governing the Internet in Pennsylvania that Corbett could use to intimidate his opponents with investigation or prosecution.
In Louisiana, parish official Steve Theriot dropped a lawsuit earlier this week seeking the identity behind 11 usernames on www.nola.com, the website of The Times-Picayune. Theriot, a Democrat, relented after heckling from constituents and ridicule by local and national media. The Times-Picayune and its website probably would fall under a media exemption (although this case would be a state or local, not federal, issue). But what if Sen. David Vitter or Mary Landrieu requested an FEC investigation of the folks behind an anonymous campaign blog critical of their candidacies? It’s not clear that the blog would be safe under the current iteration of the “DISCLOSE Act.”
Theirot sounded eerily similar to the sponsors of the “DISCLOSE Act” in justifying his intimidation tactic in a statement provided to the New York Times: “This lawsuit was never intended to silence individuals from expressing their views or suppressing any First Amendment rights. Rather, the focus was on the detrimental consequences that stem from false and injurious statements being made by anonymous posters and bloggers in cyberspace.”
It’s all about DISCLOSURE folks! Those nuts talking about the First Amendment are just peddling death panels! It’s interesting, though, that traditional media take notice and protest when it involves a threat to their outlets while most seem to have a different standard for anonymity for other groups criticizing politicians.
Perhaps if the FEC had time to clarify the numerous instances of vague and convoluted language in the “DISCLOSE Act”—or if Congress exercised care in crafting the statute instead of attempting to ram something through before the midterms—these sorts of Internet issues could be avoided. Instead, the DISCLOSE Act’s solution in search of a problem implicitly takes the route Maryland is explicitly attempting: regulate the Internet just like other mediums. The Associated Press reported last week that Maryland’s campaign regulation will propose regulations for political use of Facebook and Twitter accounts.
“Jared DeMarinis, candidacy and campaign finance director for Maryland’s Board of Elections, said he is drafting regulations now to require candidates clearly label their campaign’s social media accounts, as they do with other forms of communication,” according to the AP. “DeMarinis said such rules will help protect the public from misinformation and candidates from people who may try to tarnish their reputation by establishing false accounts in their name.”
Are people so stupid that they need a government regulator to police Facebook and Twitter accounts? While they’re at it, why not assign some government bureaucrats to police the comment trolls on newspaper websites? If some nefarious heckler gained traction using a fake account, the press would soon point it out—as well as the campaign in question. It’s worrisome that supposedly innocuous regulations like this might gradually encroach on the open nature of Internet communication, especially on political ideas.
This battle between self-styled reformers and supporters of free political speech boils down to a fundamentally different perspective on politics: “reformers” believe Americans are too dumb for their own good and need elites in government to ration and cleanse their diet of political speech. The Center for Competitive Politics advocates for a deregulated marketplace of ideas in politics.
Citizens should ask themselves whether they think they’re adult enough to navigate the vibrant cacophony of ideas online or if they need Congress to act as their parental control setting for the Internet—telling them what political speech is just too taboo for their proletarian minds.
