It has not received much mainstream media attention, but a huge battle is brewing in Congress this week as the House of Representatives considers two bills that will determine to what extent campaign finance rules apply to the Internet. Support or opposition to these bills does not split neatly along party lines. Indeed, the debate has brought together two opposing players in the blogosphere, the liberal Daily Kos and the conservative Red State. These two mega-blogs support one of the bills, while other members of the Internet community strongly endorse a competing measure.
What should be an easy choice between a bad bill and a good bill has become fractious and complicated. The reason? Fear mixed with a dose of opportunism.
One bill, the Online Freedom of Speech Act, sponsored by Texas Republican Jeb Hensarling, would treat political ads influencing federal elections and transmitted over the Internet differently from political ads that are broadcast on TV or radio or published in newspapers and magazines. Internet ads would not have to conform to rules in place for “public communications” as defined by the Bipartisan Campaign Reform Act of 2002 (BCRA), which banned most soft money in federal campaigns, the huge unlimited contributions from corporations and other large donors to the national political parties. The result? A gaping hole through BCRA that would open the door for all kinds of backdoor funding, through soft money, of political ads on the Internet.
While the Hensarling bill would also exempt bloggers and those who run websites from BCRA, it fails to address a lot of other ways online political discourse could run afoul of the election laws.
For example, even if the Hensarling bill becomes law, bloggers could face disclosure requirements when they endorse a specific federal candidate. Also, if a group of Internet activists operated a political website that took positions on candidates, they could be caught up in Federal Election Commission rules governing “political committees.”
Even Hensarling’s supporters recognize the bill’s limitations. Attorney Adam Bonin, who represents Daily Kos editor Markos Moulitsas Zúniga on campaign finance issues, has written that the bill “is not a comprehensive solution to the question of how political activity on the Internet should be treated under campaign finance laws.”
So you’d think the blogging community would have welcomed a new bill, developed in consultation with the Center for Democracy and Technology (CDT), a DC-based nonprofit with a long history of advocating for free expression on the Internet. This new bill, the Internet Free Speech Protection Act, is also bipartisan, sponsored by Representatives Tom Allen (D-ME) and Charles Bass (R-NH).
The Allen-Bass bill does not exempt all paid political ads transmitted over the Internet from the campaign finance laws. But it includes very strong language that offers much broader protections to bloggers, websites and Internet journalists than are currently in place under federal law, and that are not even addressed by the Hensarling bill. “We want to keep the Internet free,” Allen told Roll Call. “We just want to shut down the possibility of using coordinated campaign money through the Internet.”
This seems like a no-brainer. On one hand, the Hensarling bill could put a lot of big money back into the political system and give only limited protections to people who advocate for candidates online. On the other hand, the bipartisan Allen-Bass alternative does not have this gaping campaign finance loophole, is more inclusive and does a better job of protecting bloggers and democratic discourse online.
But nothing is simple or clear in Washington, and the alliances this battle has produced are baffling. Take the Internet community: The Allen-Bass bill has been endorsed by the Institute for Politics, Democracy and the Internet, a think tank at George Washington University whose mission is to promote “the development of US online politics in a manner that increases citizen participation and upholds democratic values.” Blogger Nicco Mele, who was webmaster for presidential candidate Howard Dean, recently praised the Allen-Bass bill for “protecting online activity, especially blogging and political speech” without opening “loopholes in the Big Money game.”
But Daily Kos and Red State continue to endorse the Hensarling bill. Daily Kos’s Zúniga and Red State’s Michael Krempasky wrote a joint letter to Congress March 9 pushing for Hensarling and consigning Allen-Bass to the needs “full study” bin.
Likewise, while House minority leader Nancy Pelosi has opposed Hensarling and supports Allen-Bass, her fellow Democrats don’t seem to be on the same page. The three Democrats on the House Administration Committee last week voted to approve the Hensarling bill, and only one even bothered to mention the Allen-Bass bill. Representative Zoe Lofgren (D-CA) damned Allen-Bass with faint praise. Lofgren thanked CDT officials Leslie Harris and Jerry Berman for their “excellent effort to come up with a compromise proposal…. It’s a thoughtful one, and I know that they’ve reached out to the blogosphere to get suggestions,” she said. “Maybe as time goes by, we will take a look” at it.
What’s going on? Fear may be a big factor. Many House members, both Democrats and Republicans, are wary of offending the blogosphere, worried that the wrath of bloggers could cost them votes. If the biggest, most politically active blogs are against something, members of Congress are loath to cross them. Likewise, many bloggers fear the reform community, believing that political reformers, if they could, would use the campaign finance laws to squash them like bugs. And then there is opportunism. House leaders who don’t seem to have any trouble with the notion that corporations might one day control what we get to access on the Internet are seizing the chance to look like the heroes of free speech online. Even better, they can advocate for a bill that gives them the opportunity to undo, at least in part, a soft-money ban they never liked.