By Kirsten Murphy, Silha Fellow
On Sept. 26, 2002, the Federal Election Commission (FEC) issued regulations implementing the Bipartisan Campaign Reform Act (BCRA), which exempt the Internet from the Act's new rules governing political advertising. The BCRA, commonly referred to as the McCain-Feingold Act, was signed by President Bush on Mar. 27, 2002, and became effective on Nov. 6, 2002, the day after this year's election. The Act prohibits corporations and labor unions from campaigning within 60 days of a general election. Individuals and organizations may continue to campaign during that time period, provided they disclose their expenditures to the FEC.
The Act also prohibits political parties from using "soft money" to fund political advertising. The definitions of advertising, broken down into public communications and "electroneering communications," include television, radio and satellite communications, but make no mention of the Internet.
The FEC held hearings in August to consider how the Act should apply to the Internet. The Act's supporters opposed exempting the Internet from the regulations. Senator John McCain (R-Ariz.), Senator Russell Feingold (D-Wis.) and four other members of Congress filed comments urging the FEC to include the Internet in the regulations, arguing that, "[t]he Commission should leave open the possibility . . . of including communications that are, or may be in the future, the functional equivalent of radio and television broadcasts."
Supporters of the Internet exemption raise Constitutional concerns. Robert Alt of the Claremont Institute, who testified at the FEC hearings, urged the FEC to read the statute as excluding the Internet. Regulating speech on the Internet would amount to an unlawful restriction on speech, and said Alt, "With the Internet, its quite clear that Congress may not have intended to actually reach it simply because a lot of Internet communication is, quite frankly, cheap." Alt concluded that regulating the Internet would violate the First Amendment.
The American Civil Liberties Union also filed comments favoring an Internet exemption, stating: "The government does not get to decide how Americans choose to express their political views. And the government does not get to decide what political messages the American public is entitled to hear."
The six FEC commissioners decided that the regulations will interpret the statute to cover broadcast, cable and satellite ads, but not Internet ads, web broadcasts or print ads. Radio and television ads that are simultaneously Webcast are also covered by the restrictions.
Commissioner Bradley Smith has said that the statute makes no mention of the Internet as either public or "electroneering communications." In a June 2002 interview on Fox News Network, he defended the commission's interpretation of the law: "Well, they want us to treat [the Internet] like any other campaign resource and limit the amounts that can be spent on it and who can spend money. And to me, this would smother this new medium that's so democratic, that's inexpensive, that almost anyone can use. And I think that had Congress known that they were going to be regulating the Internet, it wouldn't have passed."
In response to the FEC regulations, four lawmakers sued on Oct. 8, 2002. Rep. Christopher Shays (R-Conn.) and Rep. Martin T. Meehan (D-Mass.) brought the lawsuit in federal district court in the District of Columbia. Senator McCain and Senator Feingold will file amicus briefs in support of the lawsuit. The lawmakers contend that the regulations frustrate the intent of the BCRA and create loopholes, allowing the use of soft money for Internet campaigning. In a press conference announcing the lawsuit, McCain called the regulations "flawed and corrupt."
The lawsuit asks the court to extend the ban on soft money to Internet campaigning. Senators McCain and Feingold are also expected to submit a resolution to invoke the Congressional Review Act, which if approved by both houses of Congress and signed by President Bush, would overturn the FEC regulations.
The ACLU, the Libertarian Party, Senator Mitch McConnell (R-Ky), and Representative Bob Barr (R-Ga.) have filed a lawsuit, McConnell v. Federal Elections Commission, in the U.S. District Court for the District of Columbia, challenging the constitutionality of the BCRA. The plaintiffs argue that by limiting speech on television and radio, while allowing political speech in print and on the Internet, the law violates the First Amendment.