Federal Election Commission to Regulate Political Communications on the Internet
 
July 12, 2005
 

The Federal Election Commission (FEC) is nearing completion of controversial new rules governing paid political communications on the Internet. The new regulations, released for public comment in April, are intended to ensure that political committees properly finance and disclose their activities on the Web.

The FEC's rulemaking arose in response to a 2004 decision of the U.S. District Court for the District of Columbia in Shays v. Federal Election Commission, 337 F.Supp.2d 28 (D.D.C. 2004). The Shays court held that the FEC''s current definition of "public communications" impermissibly excludes all Internet communications, contravening the coordination rules and disclaimer requirements of the Bipartisan Campaign Reform Act, P.L. 107-155 (BCRA).

Under the FEC's proposed rules, paid Internet advertisements would constitute "general public political advertising." If this change is adopted, paid Internet advertisements purchased by political committees and all other spots soliciting political contributions or expressly advocating the election or defeat of a clearly identified candidate for federal office would have to include disclaimers. The disclaimers would identify the party purchasing the communication and disclose either the name of the candidate committee that authorized the communication, or the fact that no candidate or candidate committee authorized the communications. If the disclaimer notice states that the communication was not authorized by a candidate or candidate committee, the notice must disclose the payor's full name and street address, telephone number, or Web address.

Responding to concerns expressed by free speech advocates, the rulemaking proposes to extend the Federal Election Campaign Act's statutory exemption for news stories, commentaries and editorials to the media activities that occur on the Internet. Congress created this exemption in the 1970s to protect the First Amendment rights of newspapers, television networks and other media to cover and comment on political campaigns. The proposed revision would extend the media exemption to all Internet media entities including those whose activities exist solely online. These activities would not be subject to the proposed rules.

Campaign finance advocates believe the FEC's proposed oversight is necessary in light of the Internet's growing influence on federal elections as a fundraising and advertising tool. Despite concerns expressed by the technology community, and some policymakers, about regulating the Internet, the FEC appears poised to approve the rules soon.

For more information, e-mail Reg Leichty at reg.leichty@hklaw.com or call toll free, 1-888-688-8500.