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Jason Levitis posted a query to the Election Law Listserv today, and with his permission I am reposting it here. I think he brings up some interesting points.

Here it is (Warning - high campaign finance law geek rating):

The question is whether current law, notably the 2002 regulatory definition of “public communications,” (codified at 11 C.F.R. § 100.26.) completely exempts Internet activities from the coordination rules. This question has implications for the current rulemaking, since the need for change cannot be assessed—nor changes formulated—if the status quo is uncertain. At the hearings, a number of commissioners commented on the confusion over it.

Arguing yes—that the Internet is totally exempt, and that therefore tighter regulation is imperative—are some members of the reform community and Judge Colleen Kollar-Kotelly (who is as far as I know the only judge to have addressed the question). According to the plaintiffs’ brief in Shays v. FEC, 337 F. Supp. 2d 28: “When Congress…directed the Commission to promulgate new regulations on coordinated communications, the only fair reading is that Congress intended for the FEC to continue to regulate political communications over the Internet, not to deregulate them. [H]owever, the Commission moved in exactly the opposite direction than Congress intended, completely exempting communications using the Internet and electronic mail from regulation under the new rules.”

Judge Kollar-Kotelly accepts this claim in her decision, writing that, “Internet communications, no matter how closely they are coordinated with political parties or a candidate’s campaign, cannot be considered “coordinated” under the FEC’s regulations.”
337 F. Supp. 2d, at 65.

The press has adopted this view in its coverage, generally describing the existing rules and the Reid proposal with words to the effect of “exempting the internet from coordination rules” or “exempting the internet from regulation.” (Of course, whether press descriptions are probative of legal reality is another question.)

On the other side of the argument are other respected election lawyers, as well as my plain reading of the statute and regulations. To begin with the written law, the statute declares coordinated expenditures to be contributions without reference to whether those expenditures are Internet-related: “expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate.”

The regulation is more complicated, dividing coordinated expenditures into coordinated communications and other coordinated expenditures, but seems to also support the no-exemption view.: “Any expenditure that is coordinated…but that is not made for a coordinated communication…is either an in-kind contribution to, or a coordinated party expenditure with respect to, the candidate or political party committee with whom or with which it was coordinated and must be reported as an expenditure made by that candidate or political party committee….” 11 C.F.R. § 109.20(b) (2004). Since current regulations exclude internet expenditures from coordinated communications (since they are neither public communication nor electioneering communications), they are either in-kind contributions or coordinated party expenditures, and thus are reportable, limited, and/or prohibited as such.

The Perkin Coie trio of Elias, Bauer, and Sandstrom all appeared to allude to these provisions in their hearing testimony. In arguing that expanding the definition of “public communications” might not be required to comport with the statute, each asserted that Internet communications are currently regulated under other provisions. The Perkins Coie view seems well supported by 11 C.F.R. § 109.20(b). But opposing views from top election lawyers and Judge Kollar-Kotelly suggest there’s more to the issue. I look forward to comments.

I think he’s right. Many roads can lead to internet activity being regulated as an “expenditure.”

Moreover, if this passage doesn’t prove that the law is overly complex, then nothing can.

I am happy to post observations and responses to Jason’s narrative.

Its not a blog, its a Web magazine! (Hat tip Instapundit)

The Supreme Court in Minnesota today released an opinion in Minnesota Citizens Concerned for Life v. Kelley. According to the Madison Center:

Minnesota Citizens Concerned for Life and similar advocacy groups no longer need fear regulation as PACs simply because their communications could be said to have the purpose of influencing an election in Minnesota. Today the Supreme Court of Minnesota held that the state’s definitions of political committee and political fund apply only to groups that expressly advocate the nomination or election of candidate or the promotion or defeat of a ballot question.

That would be the “functionally meaningless” express advocacy test . . . which is quite functional when you are the speaker, isn’t it . . .

is here. Registration required, and mine isn’t functioning, so comments about the piece will come in a later update.

UPDATE: Sager has a great quote from Commissioner Mike Toner, to wit:

[Toner] “Can there not be any part of politics in the United States that is free of government review, investigations and potential enforcement actions?” he asked.

“The Internet is not only a unique medium,” he added, “it also defies most, if not all, of the legal premises behind the federal election law.”

So, perhaps now is a good time to count noses. For hand-off minimal rules, perhaps providing more protection than under current interpretations, I think we can count Toner and Smith (bearing in mind that Smith may not be on the Commission when the final rule is presented to them, possibly in September). Mason has always expressed concern about internet regulation, and he’s probably there, too. On the “anxious about the future without regulation” side I think we can count Chairman Thomas. Commissioner Weintraub is impressionistic, inventive, and responsive to public (and editorial) opinion. Commissioner McDonald seems not to have much appetite for the fight. We may have a 5-member Commission at the final vote, which always makes it harder to get the 4 votes necessary to take action. And, as Sager quotes Toner elsewhere in his piece, there IS an appeal of the ruling on which this rulemaking is based, and if the Commission wins on standing the entire Kollar-Kotelly decision mandating this rulemaking vaporizes. So I think there is a good chance that the rule gets bogged down inside the Commission, and possibly closes down with a appeals court decision vacating the district court.

BUT, a host of bloggers, lawyers, and law students will have been sensitized to the regulatory potential in the area, the vagaries of present practice, and the opportunities for enforcement. So, even if nothing happens, the world will have tilted, ever so slightly.

UPDATE 2: An attorney very familiar with the proceedings writes to confirm my understanding of things: “Thomas believes that as long as we construct the right number of tiny little boxes, the FEC can protect everyone they want to and regulate what they need to. And Weintraub . . . . she really wants to be seen as one of the “good guys” and not as opposing the bloggers.”

Eric Black’s report is here Choice nightmare scenario pull quote, courtesy of Carol Darr:

In an interview, Darr sketched out this scenario of how such a move could destroy the fabric of McCain-Feingold: Suppose Halliburton, a corporation with close ties to the Bush-Cheney ticket, set up a blog to help their ticket win. If the blogger had journalistic status, there would be no limit on what the corporation could pay the blogger or spend bankrolling the blog’s activities. There would be no restriction on coordination between the blog and the Bush-Cheney campaign.

The blog could solicit campaign contributions, steer traffic to the Bush-Cheney campaign website, amplify an attack strategy against their opponents, and directly advocate a vote for or against. The blog also would not have to disclose where it was getting its funding and would not have to publish any disclaimer alerting readers that it was a virtual extension of the Bush-Cheney campaign.

As technology evolved, maybe the Halliburton-sponsored Bush blog would make and circulate videos that could be posted on the blog, and e-mailed to millions of voters, with all the costs paid by the corporation and with no restrictions as to content, disclosure or disclaimers, Darr said.

Suppose Halliburton started a newspaper . . . discuss among yourselves.

I missed it earlier, but Declan McCullagh summarized the first day of hearing on the internet rule here.

Out last night to see The Pete Contino Band. Charismatic lead singer/accordion player - I’m not kidding. They were great. Today we’re off to record a show for Guess Who’s Playing Their Favorites. Then off to lunch at Tiffany’s at the White Cross Drugs. Yup.

A Michael Cornfield commentary, and a comment from the Skeptic, on the internet rulemaking, is here.

Krempasky of Redstate has his prepared thoughts here. More testimony today, of course.

In general, I understand the testimony and the Commissioners questions have seemed protective of internet journalism and communications. I am hearing that the representatives of the reform lobby seemed to be willing to talk about protecting individuals, exempting blogger corporations, sites with expenditures under $25,000, etc. However, it isn’t clear to me what of these alternatives are permitted under the statute. Any of them would seem to be (arguably) beyond the discretion of the Commission. Yet the press exemption fits much of the activity quite well, once you tie it to the form of activity and not the identity of the speaker (as you should, under the statute). Why the allergy to the press exemption?

His prepared comments are here. My favorite paragraph:

I am a former war refugee from El Salvador. Didn’t speak English when I came to this country. I never had friends in influential places. I wasn’t part of an old boy’s network. My father, a Greek immigrant, loaded freight in a warehouse. My mother, a Salvadoran immigrant, started off as a secretary. It is rare to see people of such modest backgrounds become media stars. Yet here is a medium that didn’t care about things that didn’t matter - like class, wealth, influence, or social networks.

And:

So we have a democratic medium that allows anyone to have true freedom of the press. We have average citizens, publishing their thoughts, their research, their journalism, their activism, and encouraging others to do the same. Almost daily on my site, readers exhort each other to engage in some kind of political activity, whether it’s phone calls to particular members of Congress, discussions about impending legislation or fundraising to help a favored candidate. This is what democracy should look like - an active, engaged, passionate community working with like-minded individuals around the country and even around the world to make that world a better place. This is what campaign finance reform is supposed to accomplish - placing individuals at the center of our democratic communication, and not large campaign contributors.

My only quibble is that I would protect both those who choose to participate by blogging and those who choose to participate by contributing. The notion that giving campaign contributions is somehow an inferior mode of political participation is one that needs to be discarded.