The DISCLOSE Act’s assault on political bloggers – Day III

May 13, 2010   •  By Sean Parnell
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As is well known by followers of the so-called campaign finance “reform” issue, during Wednesday’s “DISCLOSE Act” hearing before the Committee on House Administration, election lawyer William McGinley stated that the legislation potentially threatens the free and unfettered speech of political bloggers, who often support or oppose candidates in a manner that, to borrow a phrase, “can be interpreted by a reasonable person only as advocating the election or defeat of a candidate.”

The self-styled campaign finance “reform” community has, as Jeff Patch has noted, “freaked out.” While the public has generally not given much attention to the issue of campaign finance regulation and the Citizens United decision, I suspect that the term “censorship of internet bloggers” is not one the “reform” community wants associated with their latest brainstorm and bandied about in public. There remains a deep reservoir (although not deep enough) of support for the First Amendment in this country, and being seen public as censors hardly benefits  those who, well, want censorship.

Leading the way with a hysterical and false response was Craig Holman of Public Citizen, who wrote:

… another hysterical myth was floated—this time by Patton Boggs attorney William McGinley. Though McGinley was careful not to make such allegations in his written testimony where he could be held accountable, he blurted out in oral testimony that the legislation could lead to regulation of the Internet and the blogosphere. The bill, suggested McGinley, changes the definition of “independent expenditure” subject to the disclosure requirements to include Internet communications and blogs!

In fact, section 201(a) of the DISCLOSE Act only adds to the definition of “independent expenditure” those communications that are the “functional equivalent of express advocacy.” The DISCLOSE Act does not in any way change the definition of “public communication” as it exists in federal election law and the implementing regulations. Thus, it leaves in place the carefully worked out provisions of FEC regulations that exclude blogging and similar internet activity from the definitions of “expenditure” and “public communication” under campaign finance laws.

A somewhat less hysterical Ciara Torres-Spelliscy of the Brennan Center joins Holman in denouncing McGinley’s comments, writing:

…William McGinley, testified that “the broad reach of the new definitions of independent expenditure… now appear to regulate Internet communication, including the liberal and conservative blogosphere.”

This is a blatant attempt to kick sand in the eyes of lawmakers. The truth is, the DISCLOSE Act does expand the definition of independent expenditures subject to disclosure, but it does so using the Supreme Court’s own language. This will not put the FEC in the role of regulating bloggers…

… The Federal Election Commission clarified four years ago that it would not be in the business of regulating the Internet. On March 27, 2006, the FEC unanimously approved its Internet Rulemaking. The Internet Rules allow individuals making political speech on the Internet the freedom to do so without registering with or reporting to the FEC…

In other words, even through the DISCLOSE Act expands what is covered by the term “independent expenditures” to include ads that take a position on a candidate’s fitness for office, the FEC is most likely to stand by the 2006 Internet rules and only reach PAID political banner ads; not bloggers.

Most likely? MOST LIKLEY?! I’m sure that will be of great comfort to anyone considering whether or not to engage in online political advocacy, that the FEC will MOST LIKELY not seek to prosecute them.

McGinley has responded, and lays out what Holman and Torres-Spelliscy either overlook, fail to understand, or seek to obscure:

…Craig Holman, a lobbyist for Public Citizen, recently posted a response to my oral remarks that basically states—”Don’t worry, everything is fine—trust me.” He states that the DISCLOSE Act does not change the statutory or regulatory definition of “public communication”—a definition that specifically excludes internet communications from regulation. Ciara Torres-Spelliscy makes the same argument in her blog post for the Brennan Center for Justice. Both posts are correct that the statutory definition of “public communication” at 2 U.S.C. § 431(22) does not include internet communications among the covered definitions, and that the same term defined at 11 C.F.R § 100.26 does not include an internet communication, unless it is placed on another person’s website for a fee.

Nonetheless, both posts are patently wrong. Why? Because both posts flatly ignore the plain language of the legislation. Both the definition of “independent expenditure” and “covered communication” as currently drafted do not contain the term “public communication.” Rather, each provision uses the term “communication”—a term undefined by the Federal Election Campaign Act and Federal Election Commission Regulations. Therefore, internet communications, including blog posts, are not excluded from the onerous disclosure and compliance requirements under the DISCLOSE Act… 

Looking at the bill’s language, here are the definitions I am concerned about and why:

Coordination: The current version of the definition of “covered communication” under the proposed coordination rules (Section 324(b) of the House version of the DISCLOSE Act) states:

“(1) In General—except as provided in paragraph (4), for purposes of this subsection, the term ‘covered communication’ means, for purposes of the applicable election period described in paragraph (2), a publicly distributed or disseminated communication that refers to a clearly identified candidate for Federal office and is publicly distributed or publicly disseminated during such period.” (emphasis added)

This definition does not contain the term “public communication”, and therefore, is not limited by that statutory and regulatory definition.  Indeed, the fact that “public communication” is a defined term and Congress made the choice to use a different term is an open invitation for an expansive regulation in this regard.

In addition, the media exception contained at Section 324 does not include “web site” or “any internet or electronic publication”—terms specifically added to the regulations in 2006 to protect blogs. See 11 C.F.R. § 100.73…

Independent Expenditures. Moreover, the current definition of “independent expenditure” [Section 201(a) of the House version of the DISCLOSE Act] states:

“(A) that, when taken as a whole, expressly advocates the election or defeat of a clearly identified candidate, or is the functional equivalent of express advocacy because it can be interpreted by a reasonable person only as advocating the election or defeat of a candidate, taking into account whether the communication involved mentions candidacy, a political party, or a challenger to a candidate, or takes a position on a candidate’s character, qualifications or fitness for office; and” (emphasis added)

Once again, this definition does not contain the narrowing term “public communication,” and therefore, is not limited by that statutory and regulatory definition. In fact, Section 201(a) injects the term “communication” into the definition of “independent expenditure” under 2 U.S.C. § 431(17). The current definition of “independent expenditure” does not contain any similar terms so the inclusion of “communication” must be a deliberate attempt to expand the scope of this provision. 

McGinley suspects that the drafters knew exactly what they were doing in using the term “communication” rather than “public communication,” which would leave internet bloggers subject to regulation under campaign finance laws:

One can only conclude that this reflects a conscious decision by the legislation’s sponsors and the pro-regulation groups lobbying for its passage to regulate the internet—especially blogs… the current definition of “independent expenditure” does not contain any similar terms so the inclusion of “communication” must be a deliberate attempt to expand the scope of this provision. 

It is possible, of course, that this is an inadvertent drafting error and not an effort to sneak regulation of online political speech into law. But this interpretation is not aided by the fact that Public Citizen opposed H.R. 1606 in 2006, which would have exempted political speech on the internet from regulation by the FEC, or that “reform” community is claiming that the legislation doesn’t do what it obviously does do.

But if this alternative explanation is in fact accurate, it exposes some of the significant flaws in the “DISCLOSE Act,” such as the secretive manner the bill was drafted, the speed with which it is being rushed through the House, and the fact that the bill becomes effective only 30 days after enactment which means the Federal Election Commission won’t have the opportunity to draft regulations to tidy up the mess that the Democratic leadership is pushing, at least giving the opportunity for Ms. Torres-Spelliscy’s “most likely” to become “certainly.”

Limiting the free and unfettered political speech of the internet is just the most recent threat to the First Amendment to be found in the “DISCLOSE Act.” Congress should stop its rush to enact this legislation, and start with a fresh bill that addresses the real issue created by the Citizens United decision, the disadvantage imposed on candidates and parties by contribution and coordination limits. This would mean abandoning the “reform” community’s efforts to pry open the membership and donor lists of private citizen groups and much of the rest of their efforts to reign in political speech in America, but that seems like a reasonable tradeoff to me.

Sean Parnell

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