FEC Republicans Vow to Fight Regulations on Online Political Speech

Chairman warns of abuses of power in efforts to roll back Internet speech protections

• October 28, 2014 5:00 am


Republicans on the Federal Election Commission are vowing to fight regulations on online political advocacy that they say would chill free speech and potentially lead to politicized targeting of Internet writers and video-makers.

The commission’s chairman is warning that such regulations would allow the federal government to impose onerous new regulations on websites such as the Drudge Report or the Washington Free Beacon.

"I vow to fight any additional regulation on online political speech," FEC chairman Lee Goodman said in an interview.

At issue is a recent FEC ruling on a series of YouTube videos made by a conservative group called Checks and Balances for Economic Growth that criticized various Obama administration policies.

Citizens for Responsibility and Ethics in Washington, a litigious liberal group headed by pro-Hillary Clinton operative David Brock, brought a complaint against the group claiming that it violated FEC rules by failing to report expenses associated with those videos.

The commission deadlocked on the question. Its 3-3 vote resulted in a dismissal of the complaint.

In response, the commission’s top Democrat on Friday issued a statement that FEC Republicans have interpreted as a call to roll back 2006 regulations that exempted free online issue advocacy from FEC reporting requirements normally applied to paid advertisements on broadcast media and the Internet.

In a statement on Friday, FEC vice chair Ann Ravel called on the commission to revisit that regulation. The FEC should consider rules that would impose disclosure requirements on certain online political speech, she said.

"Since its inception, this effort to protect individual bloggers and online commentators has been stretched to cover slickly-produced ads aired solely on the Internet but paid for by the same organizations and the same large contributors as the actual ads aired on TV," Ravel said of the 2006 regulation.

Ravel said she will convene experts next year to discuss ways that "the Commission's current approach may or may not fit with future innovations."

While no regulatory language has yet been proposed, Goodman and his Republican colleagues on the commission are already pushing back against what they say is an unworkable attempt to regulate online communications that will chill free speech.

The problem is that Ravel’s approach to the issue contains "no limiting principle," Goodman said. In attempting to crack down on those "slickly-produced ads," the FEC could ensnare countless Internet users who simply communicate their political views online.

Ravel did not respond to questions about her proposal, such as how she would propose differentiating between "legitimate" online issue advocacy and content that she feels must be more tightly regulated.

Goodman said the panel’s Republicans are united in their opposition.

"Commissioner [Matthew] Peterson, Commissioner [Caroline] Hunter, and I are steadfast in our opposition to any new regulation of political speech on the Internet," he said.

The 2006 rule exempted some online political communications from FEC rules requiring that political advertisers report their expenses to the commission. It specifically targeted "issue advocacy" ads, which do not call for the election or defeat of candidates (as opposed to "express advocacy" ads that do).

Ads that are both available for free online and aired through paid broadcast media buys are still subject to standard reporting requirements.

"The Commission recognizes the Internet as a unique and evolving mode of mass communication and political speech that is distinct from other media in a manner that warrants a restrained regulatory approach," it wrote at the time.

In contrast to paid advertising on political websites, issue advocacy offered for free through online media warrants a carve-out from disclosure rules, the commission wrote.

"Unlike other forms of mass communication, the Internet has minimal barriers to entry, including its low cost and widespread accessibility. Whereas the general public can communicate through television or radio broadcasts and most other forms of mass communication only by paying substantial advertising fees, the vast majority of the general public who choose to communicate through the Internet can afford to do so."

Far from enabling the type of corruption that federal regulation of paid political speech aims to prevent, Goodman says that online political speech has done the opposite.

"The Internet, for the last 20 years, has greatly democratized political speech," he said. "People of modest means with an inexpensive personal computer have been afforded the opportunity to comment on politics and elections on a level playing field with large, well-funded speakers on the Internet."

A reversal of the online media exemption would not only fail to stem corruption, Goodman said, it could lead to an enforcement regime that would be completely unworkable and vulnerable to political pressures.

From a practical perspective, he explained, there is no way for FEC to effectively and fairly monitor the Internet’s massive volume of political communications in order to decide what merits regulatory scrutiny.

It would require "nothing short of a room full of bureaucrats sitting on computers every day combing YouTube and other websites in an effort to identify posters and to begin investigating that posted political content," Goodman said.

"And I think that is a very ominous regulatory regime. I don’t think you have to reach very far to see the sorts of images that that raises."

He speculated that the commission would likely focus on popular online content. "And as a result of that, we would be targeting messages that resonate among people and go viral because they resonate, without any regard for a particular video’s corruptive potential."

He also warned that the discretion such a regulation would afford federal regulators would open the door to potential abuses of power.

"There is always the risk that a governmental agency would begin picking and choosing who to enforce against and who not to enforce against," he said. "This is why I support broad and clear exemption from regulation for Internet posts."

Goodman encouraged Americans to comment on Ravel’s proposal and potential FEC regulation of online speech at the commission’s website.

Update: This piece has been updated to reflect that David Brock, the chairman of the 501(c)(3) CREW, does not "own" it. "Brock was elected chairman of the group’s board [in August] after laying out a multifaceted expansion intended to turn the group into a more muscular—and likely partisan—attack dog," Politico reported in August.

Published under: First Amendment