Adam Bonin has blogged in response to Mark Schmitt’s recent post regarding the campaign finance reform community’s purported hostility to the role of the Internet in building small-donor democracy.  Mr. Bonin explains that “By helping small donors aggregate and magnify their impact, the Internet levels the playing field in ways that law alone cannot,” and claims that “The reformers, so far as I can tell, still haven’t figured this out . . . .”  Mr. Bonin lists the Campaign Legal Center as one of these reform groups.  However, the Campaign Legal Center wholeheartedly supports the use of the Internet and other emerging technology in manners consistent with the principle of small-donor democracy—so  I feel compelled to set the record straight.

Perhaps the easiest way to set the record straight is to quote directly from the comments filed in the FEC’s Internet rulemaking proceedings in June 2005 by the Campaign Legal Center, together with Democracy 21 and the Center for Responsive Politics (two other reform organizations criticized by Mr. Bonin).  Either Mr. Bonin failed to read our comments, or he conveniently forgot about them. 

I apologize, in advance, for the length of these comments.  But the length of this piece is a testament to the extensiveness of our praise for the small-donor democracy enhancing virtues of the Internet in our FEC comments.  First, from the introduction to our comments:

“We are aware of the unique features of the Internet and the challenges posed in applying the campaign finance laws to this new medium.  We recognize that an aggressive reading of the law with regard to the Internet, as the Commission at times has done in the past, would result in the imposition of impractical and burdensome constraints on political discourse over the Internet, with few corresponding benefits to the underlying principles served by the campaign finance laws.

On the other hand, it is equally true that a per se exemption of the Internet from all applications of the campaign finance laws is a blunderbuss approach that invites obvious circumvention of important contribution and expenditure limitations in the law, especially in those rules governing political committees, corporations and labor unions.

The signature virtue of the Internet is that it allows individuals and groups of individuals to engage in robust and widespread, indeed global, discourse for little or no cost.  In this sense, the Internet is unlike any other medium that has come before, and it is having significant beneficial effects on our politics.

But it is a logical fallacy to assume that because political discourse can take place on the Internet for very little money, it follows that very large contributions or expenditures cannot or will not be used to finance communications over the Internet to influence elections.  They can; they have been, and they will continue to be.  And when this happens, the role played in campaigns by the Internet can be very much like that of traditional media – as a means to use large sums of money to finance various forms of communication to influence elections, either in coordination with or independently of a candidate.  When the Internet serves that function, the large sums used by a corporation, labor union or wealthy individual – sums that could be in the millions of dollars – pose precisely the same dangers of corruption and the appearance of corruption as large amounts used to finance communications through any other media, such as broadcast or print.  And the campaign finance laws should be given full force and effect to guard against these dangers in any form of media, including the Internet.

The challenge posed by this rulemaking, then, is to draw careful lines that strike the right balance, not only to avoid over-inclusive regulation that would chill the beneficial use of the Internet at little or no cost for political discourse by individuals, but also to avoid under-inclusive regulation that would allow the Internet to become an unregulated haven for unlimited soft money to be used in derogation of the campaign finance laws, and the principles underlying those laws.”

Then, after reviewing the procedural context of the FEC’s Internet rulemaking, as well as the agency’s historical approach to applying campaign finance laws to the Internet, we offered seven general principals we believed should guide the FEC’s regulation in this area.  The very first principle we articulated makes clear the degree to which Mr. Bonin has misrepresented our position: 

“1. The growth of the Internet is good for political activity and for increasing the number of small donors in politics.  The Internet has democratizing effects, and its growing role in political discourse should be fostered.  Widely available and inexpensive means of political discourse over the Internet, and the power of small donor political fundraising over the Internet, both serve to diminish the role of, and dependency on, big money in American politics.  In this sense, the development of the Internet for political discourse should be encouraged because it is consistent with, and furthers the goals of, the First Amendment, the campaign finance laws and our democratic form of government.”

The six other principles we articulated were:

“2. It makes no sense to say the Internet stands ‘outside the law’ as a whole, or more specifically, “outside” the campaign finance laws.  The ‘law’ generally does apply to activity on the Internet – e.g., copyright law, trademark law, contract law, and tax law.  . . .

3. The campaign finance laws regulate money, not speech per se.  Typically, money is related to speech because money is needed to facilitate or disseminate speech.  Congress has enacted laws – i.e, contribution limits, source prohibitions and disclosure requirements – to regulate the funds spent to disseminate campaign speech or for other federal campaign purposes.  The Supreme Court has repeatedly upheld such laws because that regulation of money serves compelling governmental interests.  E.g., Buckley v. Valeo, 424 U.S. 1 (1976).  Thus, if an individual stands on a soapbox in the town square and gives a speech containing express advocacy, he or she is not spending money, and is thus not subject to regulation under FECA.  But if that individual buys TV time to give the same speech, that expenditure of money is subject to regulation – at least, in that case, to disclosure as an independent expenditure, and if done in coordination with a candidate, to a contribution limit.

4. A distinctive aspect of the Internet is that, unlike other media, speech can be widely disseminated for little or (in some cases) virtually no cost.  Absolute costs for speaking on the Internet are very low; marginal costs are even lower.  The wide dissemination of speech thus can be far less closely related to money when it is distributed over the Internet than it is when disseminated by off-line forms of mass communications – broadcast, print, direct mail, phone banks, etc., all of which can entail substantial costs just for dissemination.  The Supreme Court’s underlying assumption in Buckley that “virtually every means of communicating ideas in today’s mass society requires the expenditure of money,” 424 U.S. at 19, is demonstrably less true with regard to the Internet than it is with traditional media.  By putting up a Web site, a speaker can disseminate his speech to the whole world – to anyone, anywhere, who calls up his Web site.  There is virtually no cost for this dissemination of speech.

5. Although it is possible to disseminate speech at little or no cost on the Internet, it is also possible to spend very large sums of money in producing or disseminating speech on the Internet.  Large sums can be spent on the Internet to influence elections and to benefit candidates such as, for example, for the production of video ads or other materials for distribution on the Internet, the purchase of e-mailing lists, the purchase of banner or pop-up ads on Web sites, campaign consultants, media advisers, etc.  Simply because these large expenditures occur in the context of Internet dissemination should not insulate them from the application of the campaign finance laws.

6. To exempt the Internet, across the board, from all applications of the campaign finance laws would open up the Internet to serve as the vehicle for the flow of soft money into federal elections, contrary to the language, structure and the underlying goals of the campaign finance laws.  . . .

7. The campaign finance laws should apply to the expenditures of large sums of money to communicate on the Internet, just as they do to expenditures of large sums of money to communicate by traditional media.  . . .

Given important aspects of the Internet which make it unique, widely available and relatively cheap, the campaign finance laws can and should be read to provide ample breathing room for Internet campaign activities by individuals, so as to not unreasonably burden or constrain such activities.  The focus of regulation instead should be on those activities which entail large disbursements of money and which thus – like the use of large sums of money in traditional forms of media – pose the greatest and most direct threats of corruption and the appearance of corruption that the campaign finance laws are intended to address.”

After offering these general guiding principles, we went on in our comments to address specific aspects of the Commission’s proposed Internet rules—which we largely supported, and then applauded when adopted by the Commission several months later.  We explicitly supported the proposed rule because it “would not impair ‘blogging’ activities by individuals, since such activities typically do not involve the expenditure of money in coordination with a candidate to purchase space on another person’s Web site.”  We further “recognize[d] the need to ensure that individuals who act as bloggers but incorporate for liability purposes are not thereby made subject to the panoply of campaign finance restrictions that apply to corporations,” and advised the FEC that ”[s]uch corporations could be treated as individuals for purposes of the campaign finance rules applicable to Internet activity.”

We also supported the FEC’s proposed exemption for Internet activities by individuals from the federal law definitions of “contribution” and “expenditure,” noting that “the Internet provides individuals with the ability to engage in widely disseminated political discourse without requiring the expenditure of large sums of money,” and advising that the “basic costs for individuals to communicate over the Internet should be deemed not to be ‘contributions’ or ‘expenditures’ within the scope of FECA.”  We explained our support of this proposed rule as follows: “Adoption of this rule would in itself address the vast majority of concerns and objections that have been expressed about this rulemaking.  This rule would make clear, appropriately so, that individuals engaging in unfettered political discourse over the Internet using their own computer facilities (or those publicly available) would not be subject to regulation under the campaign finance laws, whether or not such activities are coordinated with a candidate.  So too, this rule would make clear that the widespread practice of blogging by individuals, or responding to blogs, also would not be subject to any regulation under the campaign finance laws.”

And finally, in our conclusion, we stated plainly:

“We agree with the Commission that the adoption of the proposed rules ‘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.’  70 Fed. Reg. at 16969.  Subject to the modifications discussed above, we think the proposed rules strike the right balance in avoiding both over-inclusive regulation that would threaten the free flow of political discourse on the Internet, but also under-inclusive regulation that would open the Internet to the flow of soft money for the purpose of influencing federal elections.  Accordingly, and again subject to the changes discussed above, we urge the Commission to adopt the proposed rules set forth in the NPRM.”

In the end, the Commission did in large part adopt its proposed rules—to the approval of campaign finance reformers and Internet activists alike.  Yet, strangely, Mr. Bonin claims to have “achieved a major victory before the Federal Election Commission on behalf of leading political bloggers, securing significant new rights for speakers on the Internet to engage in online political speech and advocacy.”  A victory against whom, Mr. Bonin?  No one was opposing you!