Parties, Corporations, and Unions File Comments with the FEC

(January 13, 2000) Political parties, law firms, corporations, campaign consultants, and unions filed comments with the FEC regarding how the federal election laws should be applied to campaign activity on the Internet.

Related Pages
Tech Law Journal Summary of FEC Proceedings Regarding Campaign Activity and the Internet.
FEC Notice of Inquiry, 11/1/99.
AOL Comments, 1/7/00.

The Federal Election Commission (FEC) issued a Notice of Inquiry on November 1, 1999, in which it requested comments on how the Federal Election Campaign Act (FECA) should be applied to campaign activity and political speech on the Internet.

America Online submitted the largest comment, with about fifty pages of text, footnotes, exhibits and attachments.

AOL argued for non-regulation of many types of campaign activity on the Internet, particular those activities engaged in by it, or by its subscribers. It outlined five specific recommendations for the FEC:

AOL recommended that the Commission allow sufficient time after the 2000 election cycle has concluded before it commences any comprehensive rulemaking. Most comments which addressed the timing of any rule making also recommended taking no action until after the 2000 elections.

However, many comments proposed that public hearings be held. At least one comment recommended that the FEC form an "Internet Advisory Working Group" with public representation. This was submitted by the law firm of Sullivan & Mitchell, which also filed two other separate comments on behalf of and eContribution.

Capitol Advantage, a provider of Internet based legislator communications services, wrote that "the Internet as a tool is still in its infancy. Election 2000 provides the FEC and all citizens with a democracy "laboratory" to explore the Internet's potential for increasing voter participation and involvement." It advocated a temporary moratorium on most types of action by the FEC with respect to campaign activity on the Internet.

Several entities argued that the existing exemption in the statute and regulations for the news media should be broadly expanded. To date, the FEC has allowed the exemption to be applied only for certain media which publish via newspapers, magazines, broadcast television and radio, and cable. The only Internet based publication which the FEC has recognized as exempted press is Bloomberg.

Many entities want this to change. For example, the AFL-CIO publishes its own online news source. It wrote that "anyone can be a publisher on the Internet. Reno v. ACLU, 521 U.S. 853. We would submit, then, that the AFL-CIO website, which includes articles, analyses and reports of current events and not merely news about the AFL-CIO, and which is regularly updated so as to remain current, possesses all of the attributes of a conventional periodical ..."

The Credit Union National Association (CUNA), which produces a daily online publication called "News Now," also claims news media status. "In today's electronic age, web sites, such as "Yahoo!," "AltaVista," or CUNA can be deemed recognized public media. CUNA strongly urges the FEC to reconsider and broaden its definition of a "newspaper, magazine, or other periodical publication.""

AOL also wants the FEC to treat it as exempt news media. However, it takes a very narrow institutional media approach, that would only allow huge companies, but not individuals or small media companies to qualify. It suggested that the requirements include "regular features, multiple departments, editorial functions, and "press entity" credentials."

Some entities filed detailed arguments regarding topics that do not have applicability to a large number of other people or entities.

For example, the Republican National Committee argued in its comments that the FEC should exempt national committees, such as itself, from the time-space allocation regulations. That is, under current regulations (see, 11 C.F.R. 106.1(a)) they must use the "benefit reasonably to be expected to be derived" to determine the portion of the costs to be attributed to each candidate for multi-candidate expenses.

Another comment went into detail regarding problems which the FECA creates for recipients of credit card contributions made through web sites. Currently, the statute and regulations require that contributions to a political committee must be forwarded to the treasurer within ten days. In the case of credit card contributions, the FEC requires forwarding within ten days of authorization by the donor.

eContributor, a company which provides services and Internet technology necessary to online fund raising, pointed out that sometimes "eContributor does not actually come into possession of the funds (contribution) on the date the contribution is authorized by the donor," and that sometimes it takes over ten days.

One entity encouraged the FEC to impose new regulations on Internet speech: the State of Connecticut. It wants individuals' web sites to be regulated.

It wrote that "To the extent that maintaining a web site has the associated costs of computer equipment, server charges, and electrical and telecommunications costs, it can be concluded that there is determinable or estimable "value" to Internet activity. If the activity is undertaken with the purpose of supporting or opposing a candidate ... it ... could be considered a "contribution" by the FEC." Moreover, Connecticut wants the FEC to require some webmasters to keep track of their hours, and treat this as in-kind contributions.

Connecticut added that ""In-kind" and "independent" expenditures should be applied to web sites created by individuals that contain references to candidates or political parties ..."

As a part of this inquiry, the FEC is also examining whether Internet publications may qualify as "press" within the meaning of the Federal Election Campaign Act, and hence, are exempt. Tech Law Journal is affected by this proceeding. Readers may wish to take this into consideration in assessing the objectivity of this article.