Successive US Presidential elections have been hailed as marking the advent of the “Internet election”. However, the 2004 election did indeed see the arrival of a phenomenon that few had even heard of four years earlier: blogging. Blogs –a contraction of web logs, or online diaries– were considered by many commentators to have been highly influential. Many of the most celebrated bloggers were political conservatives who were thought to have made a major contribution to the re-election of the Republican incumbent, George W. Bush.
However, even before the 2004 election, a US District Court judge had ruled that the Federal Election Commission (FEC) should apply the law on campaign finance to the Internet. When the Bipartisan Campaign Reform Act (BCRA, popularly the McCain-Feingold law) was passed in 2002, the FEC decided that the Internet should be exempt from its provisions. The McCain-Feingold law was an attempt to address the issues of “soft money” –spending that is ostensibly unrelated to the campaign itself– and “sham issue ads”, that is advocacy apparently unconnected with the campaign that in fact serves to boost a particular candidate.
The case of Shays v FEC was brought by the BCRA’s sponsors in the House of Representatives, Christopher Shays and Martin Meehan. Senators John McCain and Russell Feingold filed amicus briefs supporting Shays and Meehan. The congressional representatives argued that the FEC’s regulations applying the BCRA undermined the law and were inconsistent with it. They argued that as candidates they were obliged to seek re-election in unlawfully constituted electoral contests. The District Court found in their favour, striking down 15 FEC regulations, a decision subsequently upheld by the District of Columbia Court of Appeals.
The BCRA defined “public communications” as “any… form of general public political advertising.” Judge Colleen Kollar-Kotelly in the US District Court was particularly critical of the FEC regulation excluding the Internet from this definition:
"To allow such expenditures to be made unregulated would permit rampant circumvention of the campaign finance laws and foster corruption or the appearance of corruption. . ..To permit an entire class of political communications to be completely unregulated irrespective of the level of coordination between the communication's publisher and a political party or federal candidate would permit an evasion of campaign finance laws, thus 'unduly compromiseing the Act's purposes' and 'creating the potential for gross abuse.'"
The issue is that of “coordinated communications”. In the context of the Internet this could mean, for example, that a hyperlink to a candidate’s website constituted an element of coordination.
Opposition to the court decision among the blogging community has focused on the claim that it would somehow require the FEC to regulate the content of blogs. However, so far bloggers have been assumed to be exempt from regulation by an extension of the “press exemption”. That is, as journalists (of a sort) they are free to express their opinion. Where they may be subject to regulation, however, is in being required to disclose whether they have received money from a campaign committee or candidate. This is relatively straightforward in principle, as is the likelihood that paid political advertisements on the Internet would have to declare who funded the ad, which is the practice with broadcast spots.
However, some aspects of regulation pose greater difficulties. The value of a hyperlink, for example, is difficult, if not impossible, to quantify. If a corporation makes a contribution in kind to a campaign (since they are not allowed to make cash contributions) FEC practice has generally been to value this on the basis of the money raised rather than the resources expended (the cost of postage and envelopes, a secretary’s time or whatever). Would the same approach be applied to Internet links? And if so, how would the benefit to the campaign be quantified?
