FEC to Look into Web Political Ad Restrictions

The U.S. Federal Election Commission on Wednesday began two days of hearings to solicit opinions, in part, on how a controversial new campaign finance law applies to political ads on the Web.

The hearings are aimed at seeking public comment on its proposed implementation of the Bipartisan Campaign Reform Act of 2002, which was signed by President Bush in March and will go into effect after the Nov. 5 elections. The law prohibits funding of certain forms of mass advertising by companies or organizations that support or oppose a candidate immediately prior to an election. Other organizations, including individuals, are allowed to do so only if they disclose their spending to the FEC.

Earlier this month, the FEC proposed a draft of rules to spell out precisely how the statute would be implemented. Specifically, the draft places restrictions on paid television and radio political ads, as well as television and radio broadcasts that are simultaneously streamed, or downloadable online.

Regular online ads — email, banners, buttons, skyscrapers and the like — are exempted, because the FEC said it believes such forms of advertising could be beyond the spirit of the legislation.

“The Internet is included in the … list of exceptions because, in most instances, it is not a broadcast, cable, or satellite communication, and it is not sufficiently akin to television and radio,” the FEC said in its proposed rules. “During an early debate on the amendment, Senator [Olympia] Snowe [R-MN] was asked whether the definition of electioneering communication would ‘apply to the Internet.’ She replied, ‘No. Television and radio.'”

But Snowe and other legislators who were involved in supporting the bill, including Sens. John McCain (R-AZ) and Russell Feingold (D-WI), said, in response to the FEC’s proposed rules, they oppose a blanket exemption for the Internet.

“Internet communications, such as private email communications or conventional Web sites should clearly not be considered electioneering communications,” the group said in comments filed shortly after the FEC published its draft this month. “The Commission should leave open the possibility, however, of including communications that are, or may be in the future, the functional equivalent of radio and television broadcasts. A per se exemption for communications using ‘the Internet’ from the definition of electioneering communications is therefore not appropriate.”

In addition to seeking comment this week on whether to apply the law to the Internet, the FEC also said it aimed to solicit opinions on how to apply the rules to interactive TV, or Web-browsing via their television.

The hearing is also likely to delve further into the reasons behind the exclusion of the Internet, print, and other media from the rule — an exclusion that some have said is one reason why the law could be unconstitutional.

In March, the American Civil Liberties Union, Sen. Mitch McConnell (R-KY), Reps. Bob Bar (R-GA) and Mike Pence (R-IN) and others challenged the Act’s constitutionality with a lawsuit. In the suit, the plaintiffs charge that the law was invalid, in part, because it “arbitrarily” limited the restricted media to forms of broadcast. As a result, the critics maintain that the law violates the First Amendment and the equal protection portion of the Fifth Amendment’s Due Process Clause.