Election Law

No, but some very narrow restrictions regarding online political advertisements were recently passed. As a result of a federal district court ruling in the fall of 2004, the Federal Election Commission (FEC) was forced to reconsider how it implemented federal election laws regarding behavior on the Internet. When an FEC commissioner implied that new regulations could strongly impact the online community, bloggers took notice. After intense criticism from bloggers and First Amendment activists, the FEC in March of 2005 issued a series of relatively weak new proposed regulations that would place some limited new restrictions on blogging and other communications on the Internet. The final regulations, published in the Federal Register on April 12, 2006, were largely limited to online political advertising.

In 2002, the FEC promulgated regulations designed to implement new provisions of the Federal Election Campaign Act, as amended by the Bipartisan Campaign Reform Act of 2002. The FEC's 2002 regulations sought to shield online activities from campaign finance oversight. To that end, "public communications" and "generic campaign activity" were defined to exempt most Internet communications from coverage, as were regulations regarding coordinated activities with candidates and political parties.

In Shays v. FEC, issued on September 18, 2004, the DC federal district court struck down several portions of the 2004 regulations. The court found that the exclusion of all Internet communications from "public communications" and "generic campaign activity" conflicted with the statute that cast a broader regulatory net. Similarly, the court struck down exemptions for coordinated Internet-based political activities.

The FEC's new regulations were designed to fill the holes found by the Shays court. Primarily, the new FEC rules place restrictions on paid Internet political advertisements: paid political advertisements are now subject to campaign spending limits and other restrictions on candidates. In addition, paid political advertisements are required to carry disclaimers, informing readers that ads were paid for by a party or candidate. Other proposed regulations, such as disclosures for "political spam" and for blogging funded by federal candidates, were rejected. Bloggers wishing to promote one candidate or criticize another without compensation can continue to do so without any new restraints. Even bloggers who are paid by a candidate, party, or political action committee (PAC) to promote a candidate or cause — in non-advertisement form — are not be required to disclose this fact themselves. (The candidate or party, however, would.)

Also of interest to bloggers is the FEC's explicit extension of the "press exemption" to online activities. In the new regulations, the FEC has explicitly stated for the first time that costs incurred by online speakers in the course of covering political candidates, issues, or events do not ordinarily constitute "expenditures" or "contributions" under campaign finance rules.

Yes. The FEC is additionally seeking comments regarding the precise scope of the "press exemption," regulatory recognition that costs incurred by the news media in the course of covering political candidates, issues, or events do not constitute "expenditures" or "contributions" under campaign finance rules. The FEC is considering whether or not to amend existing regulations to specifically indicate that media activities that otherwise would be entitled to the statutory exemption are likewise exempt when they take place over the Internet.

May 12, 2006, 30 days after publication in the Federal Register.