by David M. Mason and John K. Abegg *
One of the major challenges for the Federal Election Commission
(FEC) today is determining how to treat the Internet for purposes
of the Federal Election Campaign Act (FECA). The Internet is increasingly
significant in American public affairs. Individuals and organizations
use the Internet to discuss politics and pursue political aims.
Campaigns and political committees are treating the Internet as
a significant factor in their campaign plans and activities.
At the same time, the Internet presents First Amendment questions
in a new and beneficial light one that is especially interesting
when compared with broadcast communications. The practical dominance
of broadcast communication in political campaigns has led to some
extremely negative consequences for the First Amendment status of
political activity. Broadcast media are characterized legally, and
to some degree practically, by scarcity. The fact that broadcast
licenses, and therefore broadcast time, is quite limited is a far
greater factor in regulation of the medium than the public nature
of the broadcast spectrum. With scarcity comes high prices, and
a resulting over-focus on the cost of political campaigns, and a
confusing admixture of spending and speech questions.
The Internet, on the other hand, has a basis of plenitude. There
is literally no restriction on who can have an Internet site or
on how many different sites there are. What is most salient about
the Internet for First Amendment purposes is not whether 60 or 80
percent of the public has access, but interactivity. Anyone who
is on the Internet can have something to say, and the financial
and technical barriers to hosting a home page with substantial content
are quite low. In the age of the Internet, everyone of even modest
means can own a printing press.
Because the Federal Election Campaign Act was passed and amended
well before the era of widespread public use of the Internet, the
application of the FECA's definitions and concepts (which generally
contemplate dissemination of information through broadcasting or
print media) to the Internet is not always straightforward.
For purposes of the First Amendment, and the FECA's media exemption,
for example, there is a real question of how extensively press freedoms
should apply to the Internet. (The FECA's media exemption applies
to any "periodical publication," unless controlled by
a candidate or political committee.) Newspapers from the early Federal
period the period marked by passage of the First Amendment were
partisan, contentious and irresponsible. They are thus more like
the Drudge Report or "HillaryNo.Com" than they are the
New York Times or NBC. It is not clear why, then, the FECA's media
exemption would apply any less to a regularly-updated personal homepage
on the Internet as to ABCNews.com or the online Slate magazine.
In addition, the combination of open access and relatively low
cost threatens to undermine the rationale behind the campaign finance
regime. Just as Internet stock valuations appear untethered to underlying
finances, the value of political communications on the Internet
is driven more by innovation and presentation that is to say by
ideas than by placement and spending. When the political impact
of a site appears to far exceed its dollar cost, or when marginal
costs are extremely low, it is difficult to apply a regulatory regime
founded upon limits on finances, intended, we must remember, only
to prevent financial corruption.
The Commission has addressed federal campaign activities on the
Internet largely on an ad hoc basis through the enforcement process
or in response to advisory opinion (AO) requests. (Proposed legislation
in Congress would specifically apply the FECA to some Internet communications;
see, for instance, Section 201(b) of H.R. 417, the "Shays-Meehan"
bill, addressing voter guides posted on the Internet.) While the
Commission may have enunciated certain principles in resolving these
particular matters, it has not always been evident how or whether
the principles cited in particular factual situations can be applied
more broadly. In addition, there has been limited opportunity for
public notice and comment in the advisory opinion process, and none
in the enforcement process. The result has been an unappetizing
stew, made up of whatever ingredients were on the shelf at the time.**
Most recently, in AO 1999-9, the Commission ruled that the Bill
Bradley for President Committee could solicit credit card contributions
over the Internet for Presidential Primary Matching Fund purposes.
The FEC had previously ruled that contributions otherwise permissible
under the FECA could be solicited through the Internet. See AOs
1995-35 (Alexander for President) and 1995-9 (NewtWatch PAC). The
Commission concluded that the Bradley Campaign's privacy, verification,
and record-keeping safeguards allowed it to use the Internet in
obtaining primary matching funds. (Because the FEC's then-existing
regulations proscribed credit card contributions for matching fund
purposes, a new regulation was required in order to approve the
Also recently, the State of Minnesota, in AO 1999-7, asked the
Commission whether the FECA regulated the placement on Minnesota's
general candidate information web site of free hyperlinks to candidates'
campaign web sites. The FEC concluded that even if Minnesota's web
site otherwise fell within the FECA (by being "for the purpose
of influencing an election to Federal office"), the FECA's
exemption for nonpartisan voter drive activity applied to the site;
Minnesota's addition to its web site of hyperlinkswhich are simply
cyber addressesdid not change this analysis.
In AO 1999-3, the Commission ruled that Microsoft PAC could use
electronic mail to obtain payroll deductions for employee contributions.
The FEC approved the PAC's use of unique electronic identification
as satisfying the agency's requirement of signed approval by employees
to authorize such deductions.
Last year, the Commission, in AO 1998-22 (Leo Smith), concluded
that an individual's web cite that contained express advocacy was
"something of value" under the FECA. As a result, the
agency ruled that the costs associated with the site's creation
and maintenance were "expenditures" under the FECA and
FEC regulations, and that the site had to contain a disclaimer that
included the name of the its sponsor and whether a candidate had
In AO 1997-16 (Oregon Natural Resources Council Action PAC), the
agency determined that if a PAC wanted to set up a web site containing
the PAC's endorsements, but that would be funded by the PAC's supporting
corporation, the site could not be available to the general public.
The Commission reasoned that the corporate funding of the site rendered
the web site activity corporate activity; as a result, the Committee
would have to restrict access to the site to members of its restricted
class by using a password or similar device.
In AO 1996-2, the FEC ruled that CompuServe could not offer to
federal candidates free member accounts on its on-line information
service without running afoul of the FECA's prohibition on (in this
case, in-kind) corporate contributions. (The agency concluded that
neither CompuServe nor its Online services qualified for the FECA's
In AO 1995-9 (NewtWatch), the Commission concluded that a PAC's
use of its web site to distribute information about then-Speaker
Gingrich and to solicit contributions triggered the FECA's disclaimer
requirement as "general public political advertising."
The agency further ruled that the PAC could solicit contributions
over the Internet if the PAC complied with the FECA's record keeping
and reporting requirements; it also approved the PAC's proposal
to provide potential contributors with unusually extensive information
about federal election law and to ask them to indicate affirmatively
that they understood these requirements.
Lastly, in "Matter Under Review" (the name given to FEC
enforcement actions at the agency level) 4340 and 4685 (Tweezerman),
the Commission concluded that a corporation and a federal campaign
violated the FECA by not including disclaimers on their respective
web sites. The agency also concluded that the corporation and the
campaign, respectively, had violated the FECA's ban on making and
receiving (also in this case, in-kind) corporate contributions because
the corporation had linked its web site to a candidate's web site,
and the campaign did not compensate the corporation for this link
(which had some value).
While each of these decisions may be defensible, they have generally
applied preexisting regulatory categories (such as "general
public political advertising" or "periodical publication")
in an Internet contexta context which the FECA and FEC regulations
do not contemplate. A more comprehensive consideration of political
activity on the Internet, and the threat, if any, of corruption
therefrom, may produce different, and hopefully less onerous, regulatory
To this end, the Commission recently instructed its staff to draw
up a regulatory Notice of Inquiry to determine how the FECA and
FEC regulations should be applied to (and whether these regulations
should be altered regarding) the use of the Internet in federal
election campaigns. By soliciting comments, the Commission is not
suggesting that any Internet-specific regulation be adopted, nor
necessarily that any existing regulation be changed. However, it
may be the case that the Commission should alter its regulations,
including regulatory exemptions, in light of certain features of
In addition to soliciting comments broadly on how to apply the
FECA to the Internet and how to alter or interpret FEC regulations
in light of the Internet's widespread use, the Notice of Inquiry
will provide an opportunity to comment on the FEC's previous ad
hoc decisions involving the Internet and on specific questions which
have already become evident, including:
- Application of the media
exemption: does it apply to Internet "magazines"; can
(some) Internet sites be considered "periodical publications";
would "list serves" or regular e-mails (especially those
requested by recipients) qualify as periodical publications; was
the Commission's conclusion (in AO 1996-2) that an Internet Service
Provider's proposed provision of free accounts to federal campaigns
would be a contribution to those campaigns correct?
- The Internet as communication
to the public: the Commission has generally concluded that posting
of information on the Internet constitutes communication with
the general public unless access to the information is restricted
by a password or similar method. Is this conclusion correct, or
are (some) Internet postings more akin to the provision of information
only upon request?
- Internet press releases:
the Commission permits organizations which are otherwise prohibited
from participating in campaigns to announce endorsements as long
as certain restrictions are observed. May an organization which
routinely posts press releases on the Internet include press releases
announcing endorsements as long as endorsement releases receive
no special prominence or treatment?
- How should political committees
report Internet expenditures? Multi-candidate committees may host
web sites which include candidate-specific materials. Should the
multi-candidate committee be required to calculate the value of
information about a specific candidate to be reported as a contribution?
- Should "hyperlinks"
to candidate or political committee Internet sites be treated
as campaign expenditures in and of themselves, or are such links
simply the equivalent of mailing addresses or phone numbers?
- How should the Commission
address the re-publication of content (such as speeches or position
papers) from a candidate's Internet site? Some presidential campaigns
permit visitors to their Internet sites to download "banners"
which include a campaign ad and a link to the campaign site. Should
the Commission regulate the placement of banners ("electronic
bumper stickers") on non-campaign web sites? Since the marginal
cost of adding such a banner to a web site is near zero, what
is its value for FECA purposes?
- How broadly should the Commission
treat e-mail as a substitute for regular mail: would an e-mail
follow-up to a contribution which arrived in the regular mail
satisfy "best efforts" for donor identification?
- How should Internet-based
organizations be treated for purposes of the FEC's membership
- Should hosts of Internet
discussion sites be held liable for postings (for instance, express
advocacy) by persons participating in the discussion?
The Governor George W. Bush for President Exploratory Committee,
Inc., recently requested the Commission to issue an advisory opinion
on various uses of the Internet in the campaign context, and a campaign's
responsibilities under the FECA, the Presidential Primary Matching
Payment Act, and FEC regulations with respect to such uses. Areas
into which the Bush Committee inquired were: valuation of web sites
and electronic mail, third-party (vendor) selling of campaign materials
over the Internet, and political polling on the Internet. The Commission
is due to respond by early August.
Unless the FECA's media exemption is applied broadly to the Internet,
a large amount of political activity currently being carried out
on the Internet arguably falls within the FEC's jurisdiction. Internet
users are largely unaware of the threat of FEC regulation due to
their assumptions regarding free speech protections, and because
direct costswhich could trigger application of the FECAare quite
low. The FEC's Notice of Inquiry on the Internet should both remind
Internet users that their political speech is potentially subject
to regulation and provide them with an opportunity to shape how
the FEC will apply the law to this still-developing medium.
* This article does not represent the views of the Federal Election
Commission. It states only the views of the individual authors.
Mr. Mason currently serves as a Commissioner of the Federal Election
Commission. Mr. Abegg is Commissioner Mason's Executive Assistant.
**For a fuller discussion of the following matters and additional
summaries of FEC advisory opinions in an Internet context, see "FEC
Regulation of the Internet," by Trevor Potter, at The Brookings
Institute's web site discussing "Recent Developments in Campaign
Finance Regulation" (www.brookings.org/gs/campaign/updates/internet.htm).