The US Federal Election Commission (FEC) is contemplating the regulation of online political activity to ensure compliance with recent campaign spending limits, the Associated Press reports.
US District Judge Colleen Kollar-Kotelly, of Microsoft anti-trust fame, said in a recent ruling that the FEC's exemptions for online political activity are wrong under current law.
She was ruling on the Bipartisan Campaign Reform Act of 2002, commonly called "McCain-Feingold" in reference to its sponsors, US Senators John McCain (Republican, Arizona) and Russ Feingold (Democrat, Wisconsin).
The Act places limits on generic "soft money" donations to political parties, and on so-called "issue ads" which subtly advocate a candidate or a party while appearing to be concerned with a specific political topic. The Act treats these as back doors to virtually unlimited campaign spending and advertising.
Judge CKK, apparently, sees the internet as another back door. Specifically, she struck down FEC exemptions for internet advertising and coordination among candidates, PACs (political action committees) and 527 political groups, that effectively permit candidates and party apparatchiks to collaborate with fundraising groups and online advertisers. The Judge said that this "severely undermines" McCain-Feingold.
The FEC is likely to appeal the ruling, and is in general reluctant to regulate political activity on the internet, presumably because it has no earthly idea how to go about it. The net is decentralized and international, and following the money is a good deal more difficult than it is in the broadcast and print world. The only practical approach to enforcement would be to penalize the candidates for infractions, even if they're not responsible for them. Of course, there is no guarantee that a group would observe online funding regulations, even if a candidate or party representative asked it to.
Investigating complaints will be extremely difficult. Torrents of political spam can be sent from anywhere in the world. Political blogs, and fundraising and advocacy sites, can be hosted anywhere. Campaigns will have to spend a good deal of time monitoring their opponents' web activities, and lodging complaints with the FEC, which in turn will have considerable difficulty verifying them. And the potential for abuse, by lodging frivolous claims, is greater with online politics than it is in the world of broadcast and print.
In short, Judge CKK is ordering the FEC to write regulations that it will hardly be able to enforce, but that will draw many complaints and partisan accusations. No doubt she's right about the law, but she doesn't seem to have given enough thought to the practical end of things. Instead of promoting fairness in campaigning, the regs will add more fuel to a fiercely dualistic, and increasingly bitter, political process. ®
Thomas C Greene is the author of Computer Security for the Home and Small Office, a comprehensive guide to system hardening, malware protection, online anonymity, encryption, and data hygiene for Windows and Linux.
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