Lessons from the Clash between Campaign Finance Laws and the Blogosphere
Nexus Law Journal, Vol. 11, No. 23, 2006
9 Pages Posted: 3 Nov 2005 Last revised: 18 May 2014
In this essay prepared for a Nexus Law Journal symposium on blogging and the law, Professor Hasen examines the current controversy over whether campaign finance laws should extend to election-related activities conducted over the Internet. Until recently, Federal Election Commission (FEC) regulations exempted Internet-based election communications from the reach of much campaign finance law. The status quo changed when a federal district court recently held that the FEC must impose some regulations of these communications consistent with Congress's intent in passing the Bipartisan Campaign Reform Act of 2002. The FEC Internet rulemaking sparked a blogstorm of protest, and as of this writing the FEC had not yet promulgated a final rule. Whatever rule the FEC does promulgate is sure to be challenged by some aggrieved party in court, though it is possible that Congress will act first to exempt such communications, or at least attempt to do so, from the ambit of campaign finance laws.
Regardless of the final outcome of this rulemaking, the clash tells us some important things both about the nature of speech in the blogosphere and about the tenability of campaign finance laws in the era of cheap speech and shifting technology. First, the line between journalism and blogging is thin indeed. Second, many bloggers view their activities as more worthy of protection than traditional political communications, but they shouldn't. Third, the convergence of journalism and blogging, and of internet and television, will put pressure on rules limiting corporate and union participation in the election process. My main conclusion is that this debate will be fruitful only if one identifies the proper goals of campaign finance regulation. If we structured our campaign finance system to prevent corruption, promote equality, and provide valuable information to voters, we would do little to limit the political activities of bloggers, but we would impose some sensible disclosure rules. In implementing rules to meet these goals, we should be aware of the danger that the new sensible exemptions for blogging today can have unintended and far-reaching consequences tomorrow.
Keywords: campaign finance, election law, internet regulation
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