With election-campaign contributions and spending
reaching all-time highs, the question many ask is, “Where is all this money
coming from”? It’s coming from wealthy individuals, corporations and others who
hope that investing in candidates’ campaigns will bring returns in the form of
policy decisions or bills that will benefit them. And to reach them, politicians
are increasingly turning to the Internet to make their plea for campaign
With the continued rise in Internet use, more and more political candidates
are devoting more and more time to campaigning and getting their messages across
to potential voters online. Candidates have realized that the Net is a far
cheaper method of advertising and fundraising in their drive for political
office than more traditional methods. Former presidential hopeful Howard Dean,
for example, raised tens of millions of dollars on the Web in 2004.
The Federal Election Commission revised regulations in 2006 governing various
types of campaign advertising via the Internet. Before looking at these new
regulations, we need to understand how they were reached. The following article
will examine the Bipartisan Campaign Reform Act (otherwise known as the
McCain-Feingold Act), the important case of Shays v. Federal Election
Commission and the new federal regulations relating to the Internet.
In addition, a related compilation analyzes 10 states’ election-disclaimer laws —
laws that require political candidates and committees to disclose certain facts
about various aspects of their campaigns.
Bipartisan Campaign Reform Act
Campaign Reform Act (“McCain-Feingold”), was passed by Congress in 2002. For
purposes of this discussion, this act amended the Federal Election Campaign Act
of 1971 in various ways with regard to the definition of “public communication.”
Among these important changes:
Congress defined a “public communication” as a “communication by means of
any broadcast, cable, or satellite communication, newspaper, magazine, outdoor
advertising facility, mass mailing, or telephone bank to the general public, or
any other form of general public political advertising” 2 U.S.C. 431 (22)
Congress revised the “disclaimer” requirements by requiring a disclaimer on
an ad whenever a disbursement for “general public political advertising” is
either made by a political committee, expressly advocates the election or defeat
of a clearly identified candidate, or solicits any contribution.
In revising the disclaimer requirements, Congress relied upon the definition
of “public communication,” as defined above. Therefore, most Internet content
was excluded from the disclaimer requirements set forth by the Bipartisan
Campaign Reform Act. In 2003, the U.S. Supreme Court upheld BCRA in McConnell
v. Federal Election Commission.
Shays v. Federal Election Commission
Shays, R-Conn., and Martin Meehan, D-Mass., commenced a lawsuit in October 2002
against the FEC for purportedly implementing regulations not in compliance with
the McCain-Feingold act. Shays and Meehan argued that Internet material should
be subject to the regulations under the act and emphasized that the FEC must
create regulations controlling Internet content used for political purposes
(i.e., campaigning, fundraising, etc.). In 2004, Judge Colleen Kollar-Kotelly of
the U.S. District Court for the District of Columbia agreed with Shays and
Meehan in her opinion in Shays
v. Federal Election Commission. Kollar-Kotelly held that the previous
definition of “public communication” wrongfully excluded all Internet
communications. The court concluded that some Internet communications do fall
within the scope the definition of “public communication” in that they fall
under the category of “any other form of general public political advertising.”
Therefore, the court required the Federal Election Commission to determine which
types of Internet communications should be controlled by that phrase. Shays
v. Federal Election Commission, 337 F. Supp. 2d 28 (D.D.C. 2004), aff’d, 414
F.3d 76 (D.C. Cir. 2005)
Campaign ads and the Net
On March, 27, 2006, the Federal Election
Commission approved new
regulations governing various types of Internet communication. The rules
officially took effect on May 12, 2006. The new rules, amended in response to
Shays v. Federal Election Commission, attempt to ensure that political
committees properly finance and disclose their Internet communications and
advertisements — but without hampering individual citizens in using the Internet
to speak freely regarding candidates and elections. More specifically, the rules
make it clear, as the FEC stated, “that the vast majority of Internet
communications are, and will remain, free from campaign finance regulation ... .
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 political speech allows no other approach”
(as quoted in the Federal Register, p. 18590).
The FEC rules include paid advertising on the Internet within the definition
of “public communication.” The most relevant changes include:
When someone such as an individual, political committee, or corporation pays
a fee to place a political banner, video, or pop-up advertisement on another
person’s Web site, the “person paying makes a ‘public communication’” and is
thereby subject to the federal disclaimer requirements. Content one places on
his/her own Web site is not subject to the “personal communication” requirements
and is not subject to any disclaimer regulations.
Political committees must include disclaimers on their Web sites and e-mail
distributions sent to a mass audience (500 or more unsolicited ‘substantially
similar’ e-mails) if the e-mails expressly advocate the election or defeat of a
clearly identified candidate for federal office.
People and entities other than a political committee need to include
disclaimers only on paid Internet advertising that qualifies as a “public
communication” and if the communication is being used to advocate expressly an
election or defeat of a clearly identified federal candidate.
With the Internet becoming an integral part of today’s
society, politicians are seeking to use it to their advantage. Although the
FEC’s newly implemented Internet regulations do not place strict limitations on
political candidates and their organizations, they do alert political candidates
that the Internet is no longer an unrestricted area for advertising. The FEC
believes that the Internet will always be free from most campaign regulations;
however, it is yet to be seen if the FEC will tighten the Internet regulations
that were implemented in 2006.
Scott Felsenthal is a second-year law student at the Nashville School of
Law. He can be reached at firstname.lastname@example.org.
Court ruling may force FEC to regulate Web political activity