Monday, March 27, 2006

We Won

I'll let Adam B explain below, but the short version is that the FEC has basically done nothing but bring in paid advertising on someone else's website under their current regulatory blanket. They've done nothing which could jeapordize the kinds of activities that go on in the blogosphere generally. I imagine there's a good chance the regulators or the reform community will sue the FEC again, but let's hope not. Here's Adam B:

The netroots have won.

Not an election, mind you - though those victories will come - but an official governmental recognition that what you all do is a valuable part of the democratic experiment, and one which should not be thwarted by the incursion of the federal government.

Today, the Federal Election Commission will vote to approve its final regulations regarding political activity on the Internet. As you know, we had dreaded these regulations for a year and did everything we could to influence or stop them altogether - submitting our own comments to the FEC and encouraging you to do the same (and you did, in the thousands), testifying before the FEC and Congress, and pressuring Capitol Hill to pass legislation protecting the medium.

Congress punted, but something remarkable happened -- though it's not something which ought to be remarkable: the Federal Election Commission reviewed all the comments, asked pointed questions during two days of hearings, deliberated for months . . . and ended up with the only logical conclusion that the facts, technology and law could warrant:
Through this rulemaking, the Commission recognizes the Internet as a unique and evolving mode of mass communication and political speech that is distinct from other media in a manner that warrants a restrained regulatory approach. ...

As a whole, these final rules will make plain that the vast majority of Internet communications are, and will remain, free from campaign finance regulation. To the greatest extent permitted ...the Commission is clarifying and affirming that Internet activities by individuals and groups of individuals face almost no regulatory burdens under the Federal Election Campaign Act. The need to safeguard Constitutionally-protected speech allows no other approach.

Over the next few weeks, I'll try to outline how the regulations will work, but here's the details:

What will be regulated: Paid advertising. If a communication is placed for a fee on someone else's website, the FEC rules regarding disclosure and coordination will apply.

What's protected: So much. It starts with explicit, broad protections for uncompensated individual or group activities for the purpose of influencing a federal election. In short, if you're using the Internet and aren't being paid by a campaign or party to do so, nothing you do will be considered a contribution to a campaign on an expenditure on its behalf. Even if you're in a group. Even if it's not a "blog" but some other form of internet participation, even ones that have yet to emerge. Even if it's not "news, media, or commentary" but just activism and organizing. Even if you've incorporated for liability purposes. Even if you're doing all that and are selling advertising space on your site to defray its costs. Even if you're making a profit. Even if you're using someone else's computer. Even if you're republishing a campaign's materials on your own site. All explicitly protected.

Oh, yeah: and websites are eligible for the same media exception available for print/radio/tv sources engaging in news, commentary and editorial activities. No matter how partisan, biased or imbalanced the site is. No matter - and they say this explicitly - if encourages readers to make donations to various candidates.

To be sure, there are still some details worthy of focus. For instance, the ad disclaimer requirements apply even to the tiniest Google AdWords purchase, though the FEC has promised that they will not seek enforcement against ads placed for a "nominal" fee.

Read the document, and don't be intimidated by its length. Most of it is a thoughtful review of each issue by the Commissioners, where they indicate the comments on each side, and explain their reasoning for each conclusion. This is how government agencies are supposed to function, and given the equal Republican/Democratic split on the FEC, its commissioners can.

Much thanks are due to our friends in Congress who raised and pressed these issues, and forced our opponents to show their hand; to the other committed advocates on our side, from Bob Bauer and Marc Elias at the Perkins Coie firm to John Morris and Leslie Harris at CDT, who did so much great organizing and advocacy from the early days (regardless of our differences on HR 4900); to Mike Krempasky of RedState, who despite what you might think is truly a decent guy (regardless of our differences on basically everything but this issue.)

Congress is set to reconsider HR 1606, the Online Freedom of Speech Act, this week. Honestly? I don't believe it's necessary now. These FEC regulations give as strong a set of legal protections as we could reasonably expect, and the best thing Congress can do now would be to find ways in the Record to simply affirm that the FEC approach reflects their beliefs, and that the regulations should be interpreted with a bent towards freedom.

As to those who opposed us along the way, know that we have long memories and vigilant friends. Nevermore will we abandon this turf to the "experts" who fear and criticize what they do not understand.

Markos, Duncan, Matt and I have fought this battle for a year because we believe that our ideas are better than our rivals', and that we will ultimately win in the ballot box so long as we're able to advocate freely on behalf of the candidates and positions we hold dear. Mike Krempasky and his conservative friends believe the same thing. Today's FEC vote allows us to prove it.

(Normally this would've just gone up on Kos, but Markos is in the middle of the book tour and Adam is on the road so I thought I'd get it out there now. Might be repeated on Kos later)