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CDT's John Morris replies to FEC's Internet regulations

John is of course correct in that the FEC regulations are not as 
worrisome as earlier drafts were. A preview of what might have been:

But I think former FEC Chairman Brad Smith's warning is a prescient one 
(he knows the inanities of election law firsthand). What the FEC gives, 
it can take away.


-------- Original Message --------
Subject: Re: [Politech] FEC approves final Net regulations, thanks 
McCain,  Feingold, Shays, Meehan [fs]
Date: Wed, 29 Mar 2006 08:48:30 -0500
From: John Morris <jmorris-lists@cdt.org>
To: Declan McCullagh <declan@well.com>, Politech <politech@politechbot.com>
References: <442A42E5.8030208@well.com>


FWIW, I think your once sentence recap misses the mark in a number of ways:

At 12:18 AM -0800 3/29/06, Declan McCullagh wrote:
>Thanks to the McCain-Feingold campaign finance law, and a lawsuit 
>brought by Reps. Shays and Meehan, and the unwillingness of the 
>FEC's Democratic commissioners to fight it, we now have Internet 
>election regulations. Yay.

First, the Internet was subject to Federal Election Campaign Act
(FECA) regulation long before McCain-Feingold was passed in 2002, and
long before the lawsuit.  Second, the rules adopted by the Federal
Election Commission (FEC) on Monday (which you link to) spend 90% of
their pages DEregulating speech on the Internet.  By and large, the
primary speech on the Net that is subject to McCain-Feingold is paid
advertisements placed on another person's website (much like paid ads
on TV, in newspapers, etc., are regulated).  The FEC bent over
backwards to make clear that bloggers, folks who run listservs (like
you), and ordinary individual speakers with their own personal web
pages are NOT covered by the regulations.  The FEC also expressly
declared in its rules that Internet-only news media (such as this
list) can be covered by the campaign finance law's news media

Many of these new exemptions were issued in response to concerns that
CDT and many other commenters (including the leading bloggers on both
the right and the left) raised in comments and testimony at the FEC.
And ironically, had the 2004 court decision not required the FEC to
revisit the application of McCain-Feingold to the Internet, the FEC
would not likely have had any new rule proceeding, and thus the FEC
would not have issued its broad exemption of Internet speech from
FECA rules on Monday.

To be clear, CDT is not completely happy with the FEC's rules -- for
example, we do not believe that the regulations should apply to the
very low cost ads that one can place on blogs (for $10 or $25).  CDT
had helped to draft legislation that would have exempted such low
cost ads.  But most bloggers are pleased by the new rules, and the
Internet will be subject to significantly less regulation once the
new rules take effect (in about 45-60 days) than it is today.

A very helpful two page summary of the rules was released by two of
the Democratic Commissioners, at
An op-ed of ours (in the Roll Call newspaper up on Capitol Hill)
about the related legislative battle is at

John Morris
Center for Democracy & Technology

At 12:18 AM -0800 3/29/06, Declan McCullagh wrote:
>Thanks to the McCain-Feingold campaign finance law, and a lawsuit 
>brought by Reps. Shays and Meehan, and the unwillingness of the 
>FEC's Democratic commissioners to fight it, we now have Internet 
>election regulations. Yay.
>They're here:
>Background is here:
>Former FEC Chairman Brad Smith sounds a cautionary note here:
>The biggest problem with the rules is simply the principle 
>established - the internet is now to be subject to regulation.  The 
>FEC can change the rules - extend them - when it wants.  My friend 
>and current Commission Chairman Michael Toner put it best most 
>succinctly in a private conversation we had while I was still on the 
>Commission a while back: "Isn't there any area of political 
>discussion that we can just leave unregulated?"  The answer, for far 
>too many, in the so-called "reform" community, in Congress, in the 
>MSM and elsewhere, appears to be "no, there is no area of political 
>discussion that should be free from government regulation." So most 
>web activity - except for paid ads - will remain exempt, but as a 
>matter of administrative grace rather than right.  Rick Hasen, who 
>runs the widely cited Election Law site, is already disappointed 
>that the rule doesn't require more mandatory disclosure.  We can 
>expect "reform" groups such as Democracy 21 and the Campaign Legal 
>Center to regularly lobby for extensions of the FEC approach to 
>regulate more activity.

Posted by Declan McCullagh on Mar 30, 2006 in category free-speech

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