A leading federal regulator is renewing efforts to restrict political speech on the internet in what critics are describing as an extra-legal campaign to censor political groups, nonprofits, and even online news organizations.
Democratic Federal Election Commissioner Ann Ravel moved this week to deny a conservative nonprofit group legal protections that exempt most online political communications from federal political spending limits and disclosure laws.
Experts say the move is an attempt to undermine the "internet exemption," as the provision is known, without going through normal legislative and regulatory processes. In effect, they say, Ravel was denying legal protections to the group simply because she disagrees that those protections should exist.
Ravel’s move came as the FEC weighed a complaint against the Foundation for a Secure and Prosperous America, a conservative nonprofit that ran television ads last year attacking Sen. Rand Paul’s (R., Ky.) support for the nuclear deal with Iran.
The FEC’s six commissioners unanimously ruled that the group’s failure to report expenditures associated with the ads did not violate federal law, since they focused on a legislative issue and did not call for the election or defeat of a political candidate.
However, the commissioners split on a separate question. In its legal analysis, the FEC’s general counsel noted that four YouTube videos cited in the complaint against the foundation would have been legally permissible even if they had engaged in "express advocacy."
Under federal campaign finance laws, people and organizations that engage in "uncompensated" online political communications that would otherwise trigger disclosure requirements do not need to report those communications to the FEC.
The foundation’s YouTube videos "would likely be exempt from the Commission's independent expenditure reporting requirements under the Commission's regulations, which exempt the costs associated with uncompensated ‘internet activity’ from the definition of ‘expenditure,’" the general counsel explained.
That analysis never made it into the commission’s official findings. All three Democratic commissioners voted against adopting the general counsel’s analysis.
According to Ravel, the sticking point was the section relating to the internet exemption. Ravel, in a statement on the vote, called on the FEC to reconsider the exemption, which she has previously opposed, but she did not deny that it exists or that it exempted the foundation’s communications from regulations on television or paid internet advertising.
That earned a rebuke from the commission’s three Republicans, who called Ravel’s statement "a familiar, if tired, refrain [that] fails to justify a public official's failure to apply well-established law adopted unanimously by a fully-apprised Commission in 2006."
"Not even Commissioner Ravel has submitted a proposal to amend the Commission's Internet exemption," they noted.
Ravel’s "statement of reasons" was an attempt to undermine established law with which she disagrees, according to Hans von Spakovsky, a former Republican FEC commissioner who oversaw the creation of the Internet exemption.
"Commissioner Ravel’s statement is bizarre," von Spakovsky wrote in an email. "The fact that she doesn’t like a particular regulation doesn’t mean she has a right to refuse to abide by it or to enforce it."
"If she thinks the internet regulation we adopted in 2006 when I was a commissioner should be changed, she should make a proposal to change it. But until she does so and the change is adopted, she has an absolute obligation to comply with that regulation as written," wrote von Spakovsky, now a senior legal fellow at the Heritage Foundation.
Ravel and her two Democratic colleagues did not respond to questions about their votes by press time.
The internet exemption has become a hot topic as digital media proliferate, raising questions about what constitutes political as opposed to news content and whether regulations crafted in the internet’s formative years are adequate a decade later.
Political campaigns this cycle are blazing new trails in online electioneering. Hillary Clinton’s presidential campaign cited the internet exemption last year to justify its coordination with a Super PAC, something many campaign finance experts had thought was illegal.
"Political campaign strategies and activities continue to shift rapidly as the digital playing field expands in new and important ways.' Voters consume information differently than they did even one or two election cycles ago," Ravel noted in her statement this week.
She has previously called for a "re-examination" of the internet exemption. But critics have warned that her position could subject virtually any online communication, even by individuals, that advocates for or against a political candidate to federal regulation and disclosure requirements.
"It’s really a specter of a government review board," commissioner Lee Goodman told Fox News in 2014, when Ravel attempted to push the commission to reconsider the internet exemption.
The potential for censorship was on commissioners’ minds when they first codified the internet exemption, according to von Spakovsky. He accused Ravel of trying "to restrict speech in direct violation of the First Amendment."
"We were extremely concerned that rolling back the internet exemption would bring the FEC into the role of regulating and censoring political speech and opinions expressed on the internet by bloggers, organizations, and ordinary citizens," von Spakovsky said.
"Ravel seems to have no understanding of the consequences of her proposals, which would be to do establish the FEC as an official government censor who would go after you if it believes your speech or your opinion could possibly effect an election—a definition so broad it could affect almost anything."