FEDERAL ELECTION COMMISSION
11
[Notice 2005 – X]
Internet
Communications
AGENCY: Federal Election Commission.
ACTION: Notice of Proposed Rulemaking.
SUMMARY: The Federal Election Commission requests comments
on proposed changes to its rule that would include paid advertisements on the
Internet in the definition of “public communication.” These changes to the Commission’s rule would
implement the recent decision of the U.S. District Court for the
DATES: Comments must be received on or before
[INSERT DATE 60 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL
REGISTER]. The Commission will hold a
hearing on the proposed rules on [INSERT DATE OF HEARING] at
ADDRESSES: All comments must be in
writing, must be addressed to Mr. Brad C. Deutsch, Assistant General Counsel,
and must be submitted in either electronic, facsimile, or hard copy form. Commenters are strongly encouraged to submit
comments electronically to ensure timely receipt and consideration. Electronic comments must be sent to either
internet@fec.gov or submitted through the Federal eRegulations Portal at
<www.regulations.gov>. Any
commenters who submit electronic comments and wish to testify at the hearing on
this rulemaking must also send a copy of their comments to
internettestify@fec.gov. If the
electronic comments include an attachment, the attachment must be in the Adobe
Acrobat (.pdf) or Microsoft Word (.doc) format.
Faxed comments must be sent to
for further
contact: Mr.
Brad C. Deutsch, Assistant General Counsel, Ms. Amy L. Rothstein, Mr. Richard
T. Ewell, or Ms. Esa L. Sferra, Attorneys, 999 E Street, N.W.,
SUPPLEMENTARY
INFORMATION:
I. Introduction
The Bipartisan
Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 81 (
First, section 441i(b) of BCRA requires State, district, and local political party committees to use only Federal funds[1] for certain types of “Federal election activity,” including for any “public communication that refers to a clearly identified candidate for Federal office . . . and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office[.]”[2] 2 U.S.C. 431(20)(A)(iii) (emphasis added). BCRA defines a “public communication” as “a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.” 2 U.S.C. 431(22) (emphasis added).
Second, section
441i(b) of BCRA also restricts the funds that State, district, and local
political party committees may use for certain "generic campaign
activity." 2 U.S.C.
431(20)(A)(ii); 11
Third, BCRA expressly repealed the
Commission’s then-existing rules on “coordinated general public political
communication” at former 11
Fourth, Congress revised the “disclaimer”
requirements in 2 U.S.C. 441d, by requiring a disclaimer when a “disbursement”
(rather than an “expenditure”) is made for certain communications.
The Commission promulgated regulations
in 2002 to implement BCRA's provisions regarding (1) “public communication,”
(2) “generic campaign activity,” (3) coordination with candidates and political
parties, and (4) disclaimers. See
Final Rules on Prohibited and Excessive Contributions; Non-Federal Funds or
Soft Money, 67 FR 49,064 (
In Shays
v. Federal Election Commission, 337 F.Supp.2d 28
(D.D.C.) appeal filed, No. 04-5352 (D.C. Cir. .”[4] Shays at 69. The district court
concluded that “[w]hile all Internet communications do not fall within [the
scope of ‘any other form of general public political advertising’], some
clearly do.” .”.
Second, the
district court found the Commission’s rule defining the term “generic campaign
activity” to be “an impermissible construction of the Act,” to the extent it
incorporated the regulatory definition of “public communication,” which
excludes all forms of Internet communications.
Third, the
district court invalidated the “content prong” of the Commission's coordinated
communications rule at 11
The district court
remanded each of these rules to the Commission for further action consistent
with its opinion. Accordingly, the Commission is issuing this Notice of
Proposed Rulemaking (“NPRM”), which addresses several topics. First, the proposed rules in 11 .” This
proposed change addresses the Shays court’s concern about the wholesale
exclusion of all Internet communications from the definition of “public
communication..”
Because only Internet communications that constitute “general public political advertising,” as
defined by the regulation, would be included in the proposed definition of “public
communication” in section 100.26, the Commission anticipates that the proposed
definition would have an extremely limited impact, if any, on the use of the
Internet by individuals as a means of communicating their political views,
obtaining information regarding candidates and elections, and participating in
political campaigns.
Second, this NPRM republishes and invites
comment on the current definition of “generic campaign activity” in section
100.25, which includes the term “public communication..” The Commission notes that any changes to the
underlying definition of “public communication” pertaining to the Internet
would automatically apply to “generic campaign activity..”
Third, the Commission proposes to modify
somewhat its rules at 11
In addition, the Commission is proposing to
add new rules specifically excepting certain volunteer activity usingon
the Internet from the definitions of “contribution” and “expenditure,” and by
clarifying that the rules in section 114.9 regarding the use of corporate or
labor organization facilities apply to the use of computer equipment and
Internet services. Lastly, the proposed
rules seek to establish an Internet exception from the definitions of
"contribution" and "expenditure" for certain media activity.
The Commission has
announced plans to initiate a separate rulemaking on certain non-Internet
aspects of the coordinated communication rules at 11
II. 11 CFR 100.26 – Definition of “Public Communication”
BCRA defines a
“public communication” as “a communication by means of any broadcast, cable, or
satellite communication, newspaper, magazine, outdoor advertising facility,
mass mailing or telephone bank to the general public, or any other form of
general public political advertising.” 2
U.S.C. 431(22). The Commission's current
rules at 11
As a consequence,
Internet communications are excluded from other rules governing the funding of
a “public communication..”
For example, State, district, and local political party committees and
organizations must use only Federal funds for any “public communication” that
promotes, supports, attacks or opposes a Federal candidate. See 2 U.S.C. 431(20)(A)(iii) and 441i(b); 11
The term "public communication" is also
used to determine whether a disclaimer is needed on certain communications
under 11
In light of the Shays decision, the Commission is
reconsidering which Internet communications would qualify as “general public political
advertising,” and thus would be a “public communication..” The Commission’s proposed rule attempts to
strike a balance between provisions of the Act that regulate “general public
political advertising” and significant public policy considerations that
encourage the Internet as a forum for free or low-cost speech and open
information exchange.
A. The Internet and
the 2004 Elections
The Internet has unique
characteristics that distinguish it from traditional media.[5] Unlike traditional media, “the Internet can
hardly be considered a ‘scarce’ expressive commodity. It provides relatively unlimited, low-cost
capacity for communication of all kinds.”
The Internet also
differs from traditional media because individuals must generally be proactive
in order to access information over the Internet, unlike users of traditional
media. The Supreme Court has found that
communications over the Internet are not as “invasive” as communications
through traditional media.
The Internet’s
accessibility, low-cost, and interactive features make it a popular choice for
sending and receiving information. In 2004, an estimated 201 million people in
the
A growing segment of the American population uses the Internet as a supplement to, or as a replacement for, more traditional sources of information and entertainment, such as newspapers, magazines, television, and radio. In mid-2004, 92 million Americans reported obtaining news from the Internet.[9]
As the public has turned increasingly to the Internet for information and entertainment, advertisers have embraced the Internet and its new marketing opportunities. Internet advertising revenue increased by 21 percent between 2002 and 2003 and reached $4.6 billion in the first six months of 2004.[10]
The 2004 election cycle marked a dramatic shift in the scope and manner in which citizens used websites, blogs,[11] listservs,[12] and other Internet communications to obtain information on a wide range of issues and candidates.[13] The number of Americans who used the Internet as a source of campaign news more than doubled between 2000 and 2004, from 30 million to 63 million.[14] An estimated 11 million people relied on politically oriented blogs as a primary source of information during the 2004 presidential campaign,[15] and a full 18 percent of all Americans cited the Internet as their leading source of news about the 2004 presidential election.[16]
B. Internet Communications –
Proposed 11 CFR 100.26
Because the
Internet is a unique form of communication, the Commission proposes to preserve
the general exclusion of Internet communications from the definition of “public
communication” in 11
At the same time,
however, the Commission recognizes that Internet communications may, in some
circumstances, constitute “general public political advertising” within the
definition of “public communication” in 11
Accordingly, the
Commission proposes to amend 11 a banner
advertisements, or “pop-up” advertisements.[17]
The Commission invites comment on whether announcements
placed for a fee on another entity’s website should be considered “general
public political advertising,” and therefore, a “public communication” under 11
If a mode of communication does not cost any money, can it
be “general public political advertising” and therefore a “public communication”
within the meaning of the statute? For
example, a person might appear in a public square and give a campaign speech
before 500 or more people. If such a
public speech does not cost any money to undertake, is it outside the scope of
“general public political advertising” under the statute and therefore not a
“public communication”? Likewise, is
such a public speech outside the scope of an “expenditure” or “contribution”
under the statute? Also, should “general
public political advertising” include Internet advertisements where a the
advertising space was provided for something of value other than a monetary
payment, for example through an exchange of comparable advertising? Although the Commission rule excludes iInternet
activity that is not placed for a fee, should the Commission amend its
regulation to explicitly state that it is not including “bloggers” in the
definition of “public communication”?
The Act and
Commission regulations recognize that corporations and labor organizations can
communicate with their restricted class, but not with the general public, on
“any subject,” and that membership organizations may similarly communicate with
their members. See 2 U.S.C.
431(9)(B)(iii) and 441b(b)(2)(A); 11
C. Effect of Proposed Definition of "Public
Communication" on Federal Election Activity by State, District, and Local
Party Committees under 11
BCRA defines “Federal election activity” to include “a
public communication that refers to a clearly identified candidate for Federal
office . . . and that promotes or supports a candidate for that office, or
attacks or opposes a candidate for that office[.]” 2 U.S.C. 431(20)(A)(iii); see also 11
The Commission notes that the original definition of 100.26
was promulgated to permit State, district, and local committees to make
references to their fFederal
candidates on the committees’ official websites without automatically
federalizing the year-round costs of maintaining such a site. It should be noted that this effect of the
Internet exclusion was not rejected by the Shays court. The proposed rule would continue to allow
this exclusion for these websites, while requiring that state, district, and
local party committees use exclusively fFederal
dollars to place advertisements that promote, support, attack, or oppose
(“PASO”) a fFederal
candidate on another individual’s or entity’s
website. State, district, and local
committee websites must still maintain disclaimers as required under 11
The Commission invites comment on this approach and on whether
the Commission should consider further changing its definition of “public
communication..”
If a mere PASO reference to a fFederal
candidate on a State, district, or local committee’s website were to constitute
a public communication, does that require that the entire website be paid for
with hard dollars? If not, the
Commission seeks comment on how to allocate that portion of the website that
must be paid for with hard dollars — --
for example, based on the time and space of the website that contains PASO
communications as compared to the site overall, or should another allocation
method be required? In addition, what
costs should be included in the allocation calculations —;
all of the costs associated with establishing and maintaining the website, or
only the marginal costs of creating and maintaining the PASO communication, or
some other formulation?
The Commission seeks comment on whether any payment by a State, district, or local party to an outside vendor for content that PASO’s a Federal candidate that is exclusively placed on the party’s website should constitute “general public political advertising” and be deemed a “public communication,” thus requiring regulation under 2 U.S.C. 441i(b)(1).
“Federal election activity” includes “generic
campaign activity” conducted in connection with an election in which a
candidate for Federal office appears on the ballot. 2 U.S.C. 431(20(A) and 11
As noted above, the Shays court
rejected the Commission’s definition of “generic campaign activity” on two
grounds: first, that it improperly excluded all Internet communications and,
second, for lack of notice to the public that it would be limited to “public
communications” as defined in 11
IV. 11
With its relatively low-cost, wide availability, and ease of access, the Internet is used by millions of individuals daily to share information and air their views on a variety of subjects. The Commission recognizes that significant policy reasons support the continued exclusion of most Internet communications from the disclaimer requirements.
As the Commission has stated previously, the Internet “is a medium that allows almost limitless, inexpensive communication across the broadest possible cross-section of the American population. Unlike media such as television and radio, where the constraints of the medium make access financially prohibitive for the general population, the Internet is by definition a bastion of free political speech, where any individual has access to almost limitless political expression with minimal cost.” Soft Money Final Rules, 67 FR at 49,072. To this extent, the Internet can be the modern equivalent of a soapbox in a public square. See Reno v. ACLU, 521 U.S. 844, 870 (1997) (“Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.”)
The Commission notes that with respect to most Internet websites and blogs, the burden of complying with a disclaimer requirement, and the resources needed for the Commission to monitor such a requirement could outweigh the value of disclosure. This is particularly true given that the identity of the sponsor of an Internet communication is often already apparent from the face of the communication. The Commission seeks comment on these policy rationales and alternative approaches to the disclaimer requirement.
The Act and the
Commission’s rules require certain communications to include clear and conspicuous
statements to the public regarding the sources of their funding. See 2 U.S.C. 441d; 11
A. Scope of Disclaimer Requirements – Proposed
11
In
the existing disclaimer regulations in section 110.11(a), the term “public
communication” differs slightly from the term “public communication” as defined
in 11
The
Commission is concerned that the current regulation emphasizes the number of
e-mail communications sent, rather than focusing on whether an expenditure was
made that would justify governmental regulation. The Commission notes that the statute
generally seems to be predicated on an “expenditure” or “disbursement” being
made. The Commission is not interested
in requiring disclaimers on the personal communications of private
citizens. The Commission is concerned
that the lack of definition for the term “unsolicited,” could have the effect
of discouraging individuals from engaging in discussion and advocacy that is
core political speech protected by the First Amendment and that is virtually
cost-free.
Therefore,
the Commission is proposing to change the disclaimer requirement in 11
The
revisions to the disclaimer provisions in 11
The
Commission seeks comments on these proposed revisions to 11
In
the existing disclaimer regulations in section 110.11(a), the term “public
communication” differs slightly from the term “public communication” as defined
in 11 CFR 100.26. Specifically, “public
communication” as defined in current 11 CFR 100.26 expressly excludes Internet
communications, whereas “public communication” as defined in the current
disclaimer regulations includes “unsolicited electronic mail of more than 500
substantially similar communications and Internet websites of political
committees available to the general public.”
11 CFR 110.11(a). Thus, political
committees must include disclaimers on their websites available to the general
public, and in unsolicited e‑mail of more than 500 substantially similar
communications. Other persons must also
provide disclaimers in unsolicited e-mail of more than 500 substantially
similar communications that expressly advocate the election or defeat of a
clearly identified Federal candidate or solicit a contribution.
The
Commission is concerned that the current regulation emphasizes the number of e-mail
communications sent, rather than focusing on whether an expenditure was made
that would justify governmental regulation.
The Commission notes that the statute generally seems to be predicated
on an “expenditure” or “disbursement” being made. The Commission is not interested in requiring
disclaimers on the personal communications of private citizens. The Commission is concerned that what may be
considered a relatively low numerical threshold, coupled with the lack of
definition for the term “unsolicited,” could have the effect of discouraging
individuals from engaging in discussion and advocacy that is core political
speech protected by the First Amendment and that is virtually cost free.
Therefore,
the Commission is proposing to change the disclaimer requirement in 11 CFR
110.11(a) to focus on those e-mail communications for which either the e-mail
addresses of any of the recipients were acquired through a commercial
transaction, or for which another party is paid to create or transmit the
e-mail communication. Such transactions
would not include routine payments for email and Internet access and associated
services provided by an Internet Service Provider. The Commission seeks comment on whether any
other transactions should not be included? Such a disclaimer requirement is intended to
strike a balance between the disclosure purposes of the Act and regulation of
expenditures, and the protection of individual free speech and robust
communication. The Commission seeks
comment on this approach. Should the
Commission adopt this approach, but continue to include a 500 e-mail
threshold? Given the ease of sending
large numbers of e-mail, would a larger numerical threshold be appropriate? The Commission also seeks comment on whether
a minimum cost should be included in this disclaimer approach, such as the $250
threshold contained in the statute for independent expenditures. See 2 U.S.C. 434(c)(1).
The
Commission also seeks comment on whether to retain the current email disclaimer
requirements. If such an approach is
retained, the Commission seeks comment on whether the numeric threshold should
be increased and whether the Commission should define the term
“unsolicited.” The Commission,
alternatively, seeks comments on whether a disclaimer requirement for e-mail
should be removed entirely from the regulation.
The
revisions to the disclaimer provisions in 11 CFR 110.11(a) would still require
disclaimers for any “public communication” as defined at 11 CFR 100.26 made by
a political committee, and for any “public communication” by any person that
expressly advocates the election or defeat of a clearly identified Federal
candidate or that solicits a contribution.
See 11 CFR 110.11(a). The
proposed definition of “public communication” in section 100.26 would have the
effect of expanding the scope of the disclaimer requirements in section 110.11
to any advertisement placed for a fee on another party’s website that expressly
advocates the election or defeat of a clearly identified Federal candidate or solicits
a contribution. In addition, political
committees would continue to be required to post disclaimers on their websites
provided that they are “available to the general public.”
The
Commission seeks comments on these proposed revisions to 11 CFR 110.11(a).B. Bloggers Paid By Candidates
News reports indicate that in the 2004 elections some
individual bloggers received significant fees from the campaign committees of
at least one presidential candidate and one Senate candidate to promote the
candidates’ campaigns on their blogs.[19] For example, the operator of the ninth most
“linked” blog on the Internet, which received as many as one million visits
daily, reportedly received $12,000 over a four-month period from one
presidential candidate.[20] The news reports further indicate that not
all of the bloggers disclosed the payments to the blogs’ readers.
The Commission notes that its current rules require a
political committee to disclose this type of disbursement on its publicly
available reports filed with the Commission.
The Commission does not therefore propose to change the disclaimer
regulation in 11
V. 11 CFR 109.21 and 109.37 – Coordinated Communications
A.
Content Standards for Coordinated Communications – 11
Payments
for certain communications that are coordinated with a candidate, a candidate’s
authorized committee, a political party committee, or any of their agents, are
treated as in-kind contributions to the candidate, the candidate’s authorized
committee, or the political party committee.
See 2 U.S.C. 441a(a)(7); 11
In Shays, the court struck down the “content prong” of the coordinated communication test. The Commission announced its intention to propose changes regarding the non-Internet aspects of the coordinated communication regulations in a separate rulemaking to take place in May 2005, with final rules pending the outcome of the appeal.
Because of the
pending appeal and the upcoming rulemaking on coordinated communications, the
Commission is not proposing to revise 11
The Commission’s rule would exempt from the coordinated communication rules advertisements that require payments to outside vendors to create, but that are placed only on the payor’s own website. This could include a corporation or other prohibited source. The Commission seeks comment on whether this approach is appropriate, and on whether any other parts of the Commission’s regulations, e.g. those provisions at 11 C.F.R. 114.4 that deal with corporate and labor communications beyond the restricted class, can be interpreted to nonetheless place restrictions on such activity. The Commission’s rule would also exempt from the coordinated communication rules advertisements that are placed on a prohibited source’s website for free, even though a fee would normally be charged. Is this an appropriate course? Do any of the Commission’s other rules already regulate this so that such activity would be prohibited?
B. Dissemination, Distribution, or Republication
on the Internet – 11
Under the current
Commission regulations, a person makes a contribution by financing “a
public communication that disseminates, distributes, or republishes, in whole
or in part, campaign materials prepared by a candidate, the candidate’s
authorized committee, or an agent of any of the foregoing, unless certain
exceptions apply. 11
The
Commission notes that changes to the definition of public communication would
expand the reach of this regulation to individuals or entities that place
announcements for a fee on another individual’s or entity’s website, when the
advertisement content otherwise constitutes a republication regulated under 11
C.F.R. 109.21(c)(6).
The Commission notes
that the change to the definition of “public communication” would not affect
content placed by an individual on his or her own website, blog, or
e-mail. Because republishing campaign
materials on one’s own website, blog, or e-mail would not be a public communication,
it would not be a contribution to the candidate under 11 CFR 109.21. The Commission notes that Senator Russ
Feingold, one of BCRA’s sponsors, stated recently that “linking campaign
websites, quoting from, or republishing campaign materials and even providing a
link for donations to a candidate, if done without compensation, should not
cause a blogger to be deemed to have made a contribution to a campaign or
trigger reporting requirements.”[23] Should the Commission amend 11 CFR 109.21(c)(2) to exempt all
dissemination, distribution, or republication of campaign materials on the
Internet generally, or keep the reference in the regulation to “public
communication”?
C. Political Party Coordinated
Communications – 11 CFR 109.37
The “party
coordinated communication” rule at 11
VI. Other Uses of
the Term “Public Communication” in the Commission’s Regulations
The term “public
communication” is also used in 11
A. Allocation of Expenses Between Federal and
Non-Federal Activities by Separate Segregated Funds and Nonconnected Political
Committees – 11 CFR 106.6
The
Commission recently promulgated revisions to its rules on the allocation of
certain expenses by SSFs and nonconnected committees. See 11
The effect of the
proposed revisions to the definition of “public communication” in 11
B. Definition of “Agent” – 11 CFR
300.2
BCRA prohibits
candidates for State and local offices, and their agents, from using
non-Federal funds to pay for any “public communication” that PASOs a candidate
for Federal office. See 2 U.S.C.
441i(f). Under the Commission’s
regulations, an “agent” includes any person who is authorized by a candidate
for State or local office to “spend funds for a public communication,” as
defined in 11
The Commission is
also considering whether expressly to to extend
the protections of the exception for news stories, commentaries and editorials
to media activities that occur on the Internet.
In the Act, Congress exempted from the definition of “contribution” and “expenditure”
“any news story, commentary, or editorial distributed through the facilities of
any broadcasting station, newspaper, magazine, or other periodical publication,
unless such facilities are owned or controlled by any political party,
political committee, or candidate.” 2
U.S.C. 431(8)(B)(i) and 431(9)(B)(i). In enacting the statutory exemption for the
media, Congress intended to assure “the unfettered right of the newspapers,
television networks, and other media to cover and comment on political
campaigns.” H.R. Rep. No. 93-1239, 93d
Congress, 2d Session at 4 (1974) (emphasis added). The Commission has implemented this statutory
exemption in its regulations. See
11
Many aspects of
the contemporary media did not exist, or were not as prevalent, when Congress
enacted the statutory exemption in the Act in the 1970s. In the past, however, the Commission has made
clear that the statutory exemption applies to new and emerging forms of mass
media, even if they did not exist or were not widespread when Congress passed
the Act. For example, recognizing that
cable programming utilized the same aspects of speech and communication of
ideas as broadcast stations, the Commission modified its regulations to make
clear that the Act’s statutory exemption applied to cable programming. The Commission noted that “although the cable
television industry was much less developed when Congress expressed this
intent, it is reasonable to conclude that cable operators, programmers and
producers, when operating in their capacity as news producers and distributors,
would be precisely the type of ‘other media’ appropriately included within this
exemption.” 61 FR 18,050 (
The Commission is
now considering whether to amend its regulations to make clear that the
statutory exemption also applies to media activities on the Internet. Specifically, the Commission is proposing to
amend sections 100.73 and 100.132 of its regulations to indicate that any media
activities that otherwise would be entitled to the statutory exemption are
likewise exempt when they are transmitted over the Internet. The proposed revisions
would still require that the exemption extend only to those entities who are a
media entity and who are covering or carrying a news story, commentary, or
editorial but would extend the existing exemption to the same activities
conducted on the internet by media entities. In so doing, the Commission recognizes that
media operations increasingly take place on the Internet. The proposed revision would allow for the
application of the media exemption to all forms of media activities on the
Internet, whether it be through a website, e-mail, or some other form of
Internet communication.
The Commission seeks comment on the proposed revisions to its regulatory media exemption for news stories, commentaries, and editorials. The Commission also seeks comment on whether the proposed revisions are consistent with or required by the statutory language of the Act. The Commission further seeks comment on the appropriate breadth of the exemption to media activities over the Internet. Should the exemption be limited to entities who are media entities and who are covering or carrying a news story, commentary, or editorial? Should the exemption be limited only to the Internet activities of media entities that also have off-line media operations? The Commission notes that the proposed regulation expressly rejects a policy that only a bona fide press entity with an off-line component is entitled to protection in their on-line news stories, commentaries, and editorials.
The proposed
revision would extend the media exemption to media entities whose activities
exist solely on-line, without a print or broadcast component, as well as to
media entities who have both a broadcast or print component andas
well as an on-line presence.
For example, Salon.com, Slate.com, and Drudgereport.com,
Dailynewsonline.com, and Worldnetdaily.com do not publish
off-line. Such on-line sites provide
direct access to political news and events and offer commentary on current
affairs. The Commission recognizes that on-linesuch
sites are as accessible as printed periodicals or news programsdistributed
to the general public and
therefore proposes to clarify that extend the
media exemption extends to those entities who may
solely have an on-line presence asnd
well as to those entities who have an interneton-line
component in addition to their broadcast or print activities. The Commission seeks comment on this
approach. The Commission notes that it
has applied the application ofthe media exemption on a
case-by-case
basis in a wide variety of contexts. has been and will
continue to be made on a case-by-case basis. See A0s 2004-7, 2003-34, 2000-13, 1996-48,
1996-41, 1996-16, 1992-26, 1988-22, 1987-08, 1982-44, 1982-58, 1980-90,
1980-109, and 1978-76.
The Commission
also seeks comment on whether bloggers, whether acting as individuals or
through incorporated or unincorporated entities, are entitled to the statutory
exemption. Can on-line blogs be treated
as “periodical publications” within the meaning of the exemption? See 2 U.S.C. 431(8)(B)(i) and 431(9)(B)(i). If not, why not? Is the media exemption to be limited to
traditional business models, meaning entities that finance operations with
subscriptions or advertising revenue?
The Commission also seeks comment on whether on-line forums qualify for
the exemption.
The Commission
further seeks comment on whether it makes any difference under the Act if a
blogger receives compensation or any other form of payment from any candidate,
political party, or political committee relating tofor
his or her blogging activities?editorial
content? Would any such
payments mean that the blogger is “controlled” by a candidate or political
party within the meaning of 2 U.S.C. 431(8)(B)(i) and
431(9)(B)(i), and therefore is not entitled to the exemption? The Commission has previously determined that
“commentary was intended to allow third persons access to the media to discuss
issues.” See AO 1982-44. Should bloggers’ activity be considered
commentary or editorializing, or news story activity?
Lastly, the Commission seeks comment on any other issue pertinent to the Commission’s consideration of whether to extend the protections of this statutory exemption to media activities on the Internet.
VIII. Proposed 11
Although the
Internet is generally a free or low-cost medium for communication, the Act’s
definitions of “contribution” and
“expenditure” are broad enough to apply to some Internet activity. For example, section 431(8) of the Act states
that the term “contribution” includes “any gift, subscription, loan, advance or
deposit of money or anything of value made by any person for the purpose of
influencing any election for Federal office.” 2 U.S.C. 431(8)(A)(i). Similarly, section 431(9) states that the
term “expenditure” includes “any purchase, payment, distribution, loan,
advance, deposit, gift of money or anything of value, made by any person for
the purpose of influencing any election for Federal office.” 2 U.S.C. 431(9)(A). These definitions have been incorporated into
subparts B and D of 11
Similarly, the
Act’s definition of “independent expenditure” is broad enough to apply to some
Internet activity. Section 431(17) of
the Act states that “the term ‘independent expenditure’ means an expenditure by
a person expressly advocating the election or defeat of a clearly identified
candidate which is made without cooperation or consultation with any candidate,
or any authorized committee or agent of such candidate, and which is not made
in concert with, or at the request or suggestion of, any candidate, or any
authorized committee or agent of such candidate.” 2 U.S.C. 431(17); see also
11
However, the
definition of “contribution” in the Act and Commission regulations does not
include “the value of services provided without compensation by any individual
who volunteers on behalf of a candidate or political committee.” 2 U.S.C.
431(8)(B)(i); 11
the use of real or personal property, including a church or community room used on a regular basis by members of a community for noncommercial purposes, . . . voluntarily provided by an individual to any candidate or any political committee of a political party in rendering voluntary personal services on the individual's residential premises or in the church or community room for candidate-related or political party-related activities . . . .
2 U.S.C. 431(8)(B)(ii). See also 11 :”:
[n]o expenditure results where an individual, in the course of volunteering personal services on his or her residential premises to any candidate or political committee of a political party, provides the use of his or her real or personal property to such candidate for candidate-related activity or to such political committee of a political party for party-related activity.
11
A. Exceptions for
Internet Activity by Individuals or Volunteers – Proposed 11
The
Commission is proposing new rules to address the treatment of uncompensated
individual or volunteer campaign activity on the Internet. Specifically, the Commission proposes the
addition of two new sections to 11 .”
Proposed 11 volunteeruncompensated
individual or volunteer Internet
activity, while proposed 11
Under
proposed 11
In AO
1998-22, the Commission concluded that even if an individual acting
independently incurs no additional costs in creating a website that contains
express advocacy of a clearly identified candidate, at least some portion of
the underlying costs of creating and maintaining that website is an expenditure
under the Act and must be reported if it exceeds $250 in a calendar year. In contrast, in AO 1999-17, the Commission
concluded that costs incurred by a campaign volunteer in preparing a website on
behalf of a candidate on the volunteer’s home computer are exempt from the
definition of “contribution” under the volunteer exception contained in section
100.75 of the regulations (formerly section 100.7(b)(4)). The Commission stated that the volunteer
exception applies to “individuals known to the campaign who, with the
campaign’s permission (at some level) engage in volunteer activity.”
The
proposed rules in new sections 100.94 and 100.155 would supersede
AO 1998-22 to the extent that it treats an individual’s independent use of
existing computer or Internet services for Internet activity as an expenditure. The proposed rules would also extend beyond
the specific guidance provided in AO 1999-17 to clarify that these exceptions
would apply to an uncompensated individual acting independently or as a
volunteer without regard to whether the individual or another person owns the
computer being used or where the volunteer activity is taking place. For example, the proposed rule would permit a
volunteer to use a computer or Internet service provided at a public facility,
such as a library or school, or provided by a friend, without such activity
being a contribution or expenditure. The Commission, however, would continue to
view the purchase of mailing lists (including e-mail
lists) for the purposes of forwarding candidate and political committee
communications as expenditures or contributions. The Commission seeks comment on this
approach. If the computer
or Internet service is provided by a corporation or labor organization, the
rules at 11 activities
by those individuals who may not be able to afford the purchase or
maintenance of their own computers or websites.
The Commission invites comments on this approach. The Commission also seeks comments on
whether this exception should be extended to volunteers who receive some form
of payment or reimbursementcompensation
from a candidate or a political committee, such as transportation, subsistence,
or supplies. reimbursement.. Additionally, the Commission seeks comments
on whether the entirety of AOs 1998-22 and 1999-17, or any additional AOs,
should be superseded or whether there is any aspect of those AOsdvisory
Opinions that should remain valid.
Under
the proposed rules, individuals acting independently or as volunteers
would come within this exception when using any “computer equipment or Internet
services” to engage in “Internet activities..” Specific examples of “computer equipment or
Internet service” would be listed in paragraph (bc)
of each section and would include, but would not be limited to, computers,
software, Internet domain names, and Internet Service Provider (proposed
paragraphs (c)(1) and (2)(b) of eachof
these new sections to
include, but not be limited to, creating and sending e-mail or producing and
maintaining a website or a blog. Furthermore, because many individuals who use
the Internet cannot, or do not, maintain their own websites, or simply wish to
post a blog in a place where it is more likely to be seen by others, there are
a number of blog “hosts” that provide space on a website for other individuals
to post their own blogs or other commentary.
Individuals acting independently or as volunteers
posting blogs or other content on the websites of these hosts would be entitled
to the exception just as if the content were posted on their own website. However, the exceptions would not apply to
paid advertising or other payments for the use of another person’s website,
other than a nominal fee. See
proposed 11
Thus,
an individual or volunteer producing or maintaining a website or blog, or
conducting other grassroots campaign activity on the Internet, from that
individual's own home or elsewhere, would not make a contribution or
expenditure and would not incur any reporting responsibilities as the result of
that activity. For
example, if an individual downloadsed
materials from a candidate or party website, such as campaign packets, yard
signs, and other items, the downloading of such items would not constitute
republication of campaign materials. In addition, even when the Internet activity
is made in cooperation, consultation, or concert with a candidate or a
political party committee, no contribution or expenditure would result and
neither the candidate nor the political party committee would incur any
reporting responsibilities. Furthermore,
if an individual forwardeds an e-mail
received from a political committee, the forwarding of that e-mail
would not constitute republication of campaign materials or be an in-kind
contribution. The Commission invites
comments on this approach.
"The Commission notes that
existing Commission regulations regarding volunteer activity use the concept of
volunteer in the context of an individual volunteering personal services to a
candidate, political committee, or political party. The proposed regulations would apply
regardless of whether the individual's activities were known to a candidate,
political party, or political committee.
The Commission seeks comment on whether it has authority to do
this and whether the word "individual" or
"volunteer" more accurately conveys the concept of when an
individual, whether known or unbeknownst to the campaign, engaginges
in Internet activity."
IX. 11
The
Commission’s rules at 11
In addition, the Commission notes that many corporations and labor organizations now permit individuals to take laptops home and to use computers and other Internet services for non-work purposes. The Commission notes that a volunteer’s use of a corporate or labor organization computer or Internet service for campaign activity over the Internet at home, or at locations outside of work, is still subject to the “occasional, isolated, or incidental” use restriction.
The Commission
further notes that corporations and labor organizations are prohibited from
“[u]sing coercion, such as the threat of a detrimental job action, the threat
of any other financial reprisal, or the threat of force, to urge any individual
to make a contribution or engage in fundraising activities on behalf of
a candidate or political committee.” 11 s on
whether additional rules are necessary to ensure that corporations and labor
organizations do not “coerce” their employees or others into engaging in
Internet activities on behalf of a candidate or political committee. Should such an exemption be avoided in that
it could lead to inherently coercive situations? Should it be premised on the corporation or
union not directing the individual to engage in activity on behalf of a certain
candidate or political committee?
Certification of No Effect Pursuant to 5 U.S.C. § 605(b)
[Regulatory Flexibility Act]
The Commission certifies that the attached proposed rules, if promulgated, would not have a significant economic impact on a substantial number of small entities. The basis for this certification is that State, district, and local party committees of the two major political parties; individual candidates, Federal office holders, and their agents; and other individuals who communicate over the Internet are not “small entities” under 5 U.S.C. 601, because they are not small businesses, small organizations, or small governmental jurisdictions. To the extent that other entities may fall within the definition of “small entities,” the economic impact of complying with these rules will not be significant.
List of Subjects
11 CFR Part 100
Elections.
11 CFR Part 110
Campaign funds.
Political
committees and parties.
11 CFR Part 114
Business and industry, elections,
labor.
For the reasons set out
in the preamble, the Federal Election Commission proposes to amend subchapter A
of chapter 1 of title 11 of the Code of Federal Regulations as follows:
PART 100 – SCOPE
1. The authority citation for part 100 would continue to read as follows:
Authority: 2 U.S.C. 431, 434, and 438(a)(8).
2. Section 100.25 would continue to reads as follows:
§ 100.25
Generic campaign activity (2 U.S.C. 431(21)).
Generic
campaign activity means a public communication that promotes or opposes a
political party and does not promote or oppose a clearly identified Federal
candidate or a non-Federal candidate.
3. Section 100.26 would be revised to read as follows:
§ 100.26
Public communication (2 U.S.C. 431(22)).
(a)
General definition of public communication.
Public communication means a
communication by means of any broadcast, cable, or satellite communication,
newspaper, magazine, outdoor advertising facility, mass mailing, or telephone
bank to the general public, or any other form of general public political
advertising. The term “general public
political advertising” shall not include communications over the Internet,
except for announcements placed for a fee on another person’s or entity’s
website.
4. In section 100.73, the introductory text would be revised to read as follows:
§ 100.73 News story, commentary, or editorial by the
media.
Any cost incurred in covering or
carrying a news story, commentary, or editorial by any broadcasting station
(including a cable television operator, programmer or producer), newspaper,
magazine, or other periodical publication, whether the news story,
commentary, or editorial appears in print or over the iInternet,
is not a contribution unless the facility is owned or controlled by any
political party, political committee, or candidate. . .
§ 100.132 News story, commentary, or editorial by the
media.
Any cost incurred in covering or
carrying a news story, commentary, or editorial by any broadcasting station
(including a cable television operator, programmer or producer), newspaper,
magazine, or other periodical publication, whether the news story,
commentary, or editorial appears in print or over the iInternet,
is not an expenditure unless the facility is owned or controlled by any
political party, political committee, or candidate . . .
§ 100.94 Uncompensated Iindividual
or
volunteer activity that is not a contribution
(a) Contribution.
(1) No contribution results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services that he or she personally owns for the purpose of influencing any Federal election, whether or not the individual’s activities are known to or coordinated with any candidate, authorized committee or party committee.
(2) No contribution results where an
individual, acting independently or as a volunteer, without receiving
compensation, performs Internet activities using computer equipment and
services available at any public facility for the purpose of influencing any
Federal election, whether or not the individual’s activities are known to or
coordinated with any candidate, authorized committee or party committee. The term “public facility” within the meaning
of this sectionub-paragraph
shall include, but is not limited to, public libraries, public schools,
community centers, and Internet cafes.
(3) No contribution results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services in his or her residential premises for the purpose of influencing any Federal election, whether or not the individual’s activities are known to or coordinated with any candidate, authorized committee or party committee.
(b) Internet
Aactivities. “Internet activities” within the meaning
of this section shall include, but are not limited to: e-mailing,
including forwarding; linking, including providing a link or hyperlink to a
candidate’s, authorized committee’s or party committee’s website; distributing
banner messages; blogging; and hosting an Internet site.
(c) Computer equipment and services. “Computer equipment and services”
within the
meaning of this section shall include, but are not limited to, computers,
software, Internet domain names, and Internet Service Provider (
§ 100.1155
Uncompensated
Iindividual
or
volunteer activity that is not an expenditure.
(a) Expenditure.
(1) No expenditure results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services that he or she personally owns for the purpose of influencing any Federal election, whether or not the individual’s activities are known to or coordinated with any candidate, authorized committee or party committee.
(2) No expenditure results where an
individual, acting independently or as a volunteer, without receiving
compensation, performs Internet activities using computer equipment and
services available at any public facility for the purpose of influencing any
Federal election, whether or not the individual’s activities are known to or
coordinated with any candidate, authorized committee or party committee. The term “public facility” within the meaning
of this sectionub-paragraph
shall include, but is not limited to, public libraries, public schools,
community centers, and Internet cafes.
(3) No expenditure results
where an individual acting independently or as a volunteer, without receiving
compensation, performs Internet activities using computer equipment and
services in his or her residential premises for the purpose of influencing any
Federal election, whether or not the individual’s activities are known to or coordinated
with any candidate, authorized committee or party committee.
(b) Internet Aactivities. “Internet activities” within the meaning
of this section shall include, but are not limited to: e-mailing,
including forwarding; linking, including providing a link or hyperlink to a
candidate’s, authorized committee’s or party committee’s website; distributing
banner messages; blogging; and hosting an Internet site.
(c) Computer equipment and services. “Computer equipment and services”
within the
meaning of this section shall include, but are not limited to, computers,
software, Internet domain names, and Internet Service Provider (
PART 114 – CORPORATE
§ 114.9 Use of corporate or
labor organization facilities and means of transportation.
(a) Use of corporate facilities for individual volunteer activity by stockholders and employees. (1) Stockholders and employees of the corporation may, subject to the rules and practices of the corporation, make occasional, isolated, or incidental use of the facilities of a corporation for individual volunteer activities in connection with a Federal election and will be required to reimburse the corporation only to the extent that the overhead or operating costs of the corporation are increased. The facilities of a corporation within the meaning of this subsection include computers, software, and other Internet equipment and services. As used in this paragraph, occasional, isolated, or incidental use generally means . . .
* * * *
(b) Use of labor organization facilities for
individual volunteer activity by officials, members, and employees. (1) The
officials, members, and employees of a labor organization may, subject to the
rules and practices of the labor organization, make occasional, isolated, or
incidental use of the facilities of a labor organization for individual
volunteer activities in connection with a Federal election and will be required
to reimburse the labor organization only to the extent that the overhead or
operating costs of the organization are increased. The facilities of a labor organization
within the meaning of this subsection include computers, software, and other
Internet equipment and services. As
used in this paragraph, occasional, isolated, or incidental use
generally means---. . .
* * * *
PART 110 – CONTRIBUTION
8. The authority citation for part 110 would continue to read as follows:
Authority: 2 U.S.C. 431(8), 431(9), 432(c)(2), 437d, 438(a)(8), 441a, 441b, 441d, 441e, 441f, 441g, 441h, and 36 U.S.C. 510.
9. Section 110.11 would be amended by revising the first sentence of the introductory text in paragraph (a) to read as follows:
§ 110.11
Communications; advertising; disclaimers (2 U.S.C. 441d).
(a) Scope. Public
communications are those defined by 11 This section applies
only to public communications, defined for this section to include the
communications at 11 CFR 100.26 plus unsolicited electronic mail of more
that 500 substantially similar communications and
electronic mail communications that are either sent to a list that includes
recipient electronic mail addresses purchased from a third party or for which a
third party is paid to create or distribute the electronic mail communications,
Internet websites of political committees available to the general public, and
electioneering communications as defined in 11 CFR 100.29. * * *
* * * * *
* * * * *
_____________________________
Chairman
Federal Election Commission
DATED: ____________________
BILLING CODE: 6715‑01‑U
[1] "Federal funds" are funds subject to the limitations, prohibitions, and reporting requirements of the Act. See 11 CFR 300.2(g). "Non-Federal funds" are funds not subject to the limitations and prohibitions of the Act. See 11 CFR 300.2(k).
[2] There are four types of “Federal election activity”: Type 1 - Voter registration activity during the period that begins on the date that is 120 days before a regularly scheduled Federal election is held and ends on the date of the election; Type 2 - Voter identification, get-out-the-vote activity, or generic campaign activity conducted in connection with an election in which a candidate for Federal office appears on the ballot; Type 3 - A public communication that refers to a clearly identified candidate for Federal office; and Type 4 - Services provided during any month by an employee of a State, district, or local committee of a political party who spends more than 25 percent of that individual's compensated time during that month on activities in connection with a Federal election. See 2 U.S.C. 431(20) and 11 CFR 100.24.
[3] Levin funds are a type of non-Federal funds created by BCRA that may be raised and spent by State, district, and local party committees and organizations to pay for the allocable portion of Types 1 and 2 Federal election activity. See 2 U.S.C. 441i(b)(2)(A) and (B); 11 CFR 300.2(i), 300.32(b). These funds may include donations from some sources ordinarily prohibited by Federal law (e.g., corporations, labor organizations and Federal contractors) to the extent permitted by State law, but are limited to $10,000 per calendar year from any source or to the limits set by state law – whichever limit is lower. See 11 CFR 300.31.
[4] The court found that this rule did not satisfy step one of the test set out by the Supreme Court in Chevron, U.S.A., Inc. v. National Res. Def. Council, 467 U.S. 837 (1984) (“Chevron”). The Shays court stated that, in the alternative, the regulatory definition of “public communication” as applied to the “content prong” of the coordinated communication regulations in 11 CFR 109.21(c) is inconsistent with the Act and, therefore, provides an independent basis for invalidation under step two of the Chevron test. See Shays at 70-71.
[5] See Enrique Armijo, Public Airwaves, Private Mergers: Analyzing the FCC’s Faulty Justification for the 2003 Media Ownership Rule Change, N.C. L. Rev. 1482, 1494 (May 2004) (discussing broadcast media and the Internet as “imperfect substitutes”); see also Ryan Z. Watts, Independent Expenditures on the Internet: Federal Election Law and Political Speech on the World Wide Web, 8 CommLaw Conspectus 149, 160 (Winter 2000) (discussing Reno v. ACLU, 521 U.S. 844 (1997) and the Internet’s differences from traditional media).
[6] See Edward L. Carter, Esq., Outlaw Speech on the Internet: Examining the Link Between Unique Characteristics of Online Media and Criminal Libel Prosecutions, 21 Santa Clara Computer & High Tech. L.J. 289, 316-17 (January 2005) (“Internet is unlike traditional print or broadcast media in that messages can have a long shelf life--an Internet message can circulate via e-mail or remain posted somewhere even long after the message's creator has tried to retract it.”).
[7] See Internet World Stats available
at <www.internetworldstats.com/stats2.htm> (last
visited
[8] See Pew Internet & American Life
Project, Trends 2005, Chapter 4, Internet:
The Mainstreaming of Online Life, p. 58 (2005) available at
<www.pewinternet.org/pdfs/Internet_Status_2005.pdf> (last visited
[9] See Pew Internet & American Life Project and the University of Michigan School of Information, The Internet and the Democratic Debate, p. 2 (October 27, 2004) available at <www.pewinternet.org/pdfs/PIP_Political_Info_Report.pdf> (last visited 3/7/2005).
[10] See
PriceWatherhouseCoopers and Interactive Advertising Bureau, IAB Internet
Advertising Revenue Report (April 2004 and September 2004), available at
<www.iab.net/recources/ad_revenue.asp> (last
visited
[11] The
word "blog" derives from the term "Web log" and is defined
as "a Web site that contains an online personal journal with reflections,
comments and often hyperlinks provided by the writer." <www.merriam-webster.com> (last visited
[12] A “listserv” is a software
program that automatically sends electronic mail messages to multiple e-mail
addresses on an electronic mailing list.
See, e.g., <www.lsoft.com/products/listserv.asp> (last visited
[13] See Pew Internet
& American Life Project, The Internet and Campaign 2004, available at
<http://www.pewinternet.org/pdfs/PIP_2004_Campaign.pdf> (last visited
[14] See
note 9, above, The Internet and Democratic Debate, p. 2. During the same time period, the number of
people reporting television as their primary source of campaign information
declined.
[15] See Jessica Mintz, When
Bloggers Make News - - As Their Count Increases, Web Diarists Are Asking: Just What Are the Rules? Wall St. J.,
[16] See note 8, above, The Mainstreaming of Online Life, p. 2.
[17]
“Pop-up” advertisements usually appear in a separate browser window from the
one being viewed. The advertisements are
superimposed over the window being viewed, and require the viewer to take some
action, such as closing the window in which the pop-up advertisement appears,
to continue viewing the underlying browser window. See <www.netlingo.com/lookup.cfm?term=pop%2Dup%20ad>
(last visited
[18] Electioneering communications also require a disclaimer. See 11 CFR 110.11(a)(4).
[19] See, e.g., William M. Bulkely
and James Bandler, Dean Campaign Made Payments to Two Bloggers, Wall St. J.,
[20] See William M. Bulkely and James Bandler, Dean Campaign Made Payments to Two Bloggers, Wall St. J., Jan. 14, 2005 at B2.
[21] The other two prongs of the coordinated communication test are (1) whether someone other than the candidate, the candidate’s authorized committee, a political party committee, or any of their agents paid for the communication in question; and (2) whether the communication satisfies the “conduct prong” of 11 CFR 109.21(d).
[22] In addition to its use in connection with the “content prong,” the term “public communication” is used in connection with the “conduct prong” of the coordinated communication regulations involving the use of a “common vendor.” See 11 CFR 109.21(d)(4)(ii)(E) and (F).
[23] Senator Russ Feingold, “Blogs Don’t Need Big
Government” available at
<http://mydd.com/story/2005/3/10/112323/534> (last visited
[24] The use of equipment or services is “occasional, isolated, or incidental” during the workday if it does not prevent the individual from carrying out her normal duties or interfere with the corporation or labor organization carrying out its normal activities. See 11 CFR 114.9(a)(1)(i) and (ii) and (b)(1)(i) and (ii). The Commission has established a safe harbor such that an individual’s activity during or outside working hours is considered “occasional, isolated, or incidental” if it does not exceed one hour per week or four hours per month. 11 CFR 114.9(a)(1)(iii) and (b)(1)(iii). The examples of “occasional, isolated, or incidental” use are not exhaustive, and other uses may also qualify.