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Election Law

The Bloggers' FAQ on Election Law addresses the legal issues regarding blogging about political campaigns.

Is it true that FEC rules from 2006 limit how I can blog about politics?

No, but there are some very narrow restrictions regarding online paid political advertisements. 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 proposed regulations that would place some limited 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. The regulations went into effect on May 12, 2006. 

What did the FEC's (previous) 2002 regulations do?

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.

What did the district court ruling on the FEC regulations do?

In Shays v. FEC, issued on September 18, 2004, the DC federal district court struck down several portions of the 2002 regulations. The court found that the exclusion of all Internet communications from "public communications" and "generic campaign activity" conflicted with the statute. Similarly, the court struck down exemptions for coordinated Internet-based political activities.

What do the 2006 FEC regulations do?

The FEC's 2006 regulations were designed to fill the holes found by the Shays court. Primarily, the FEC rules restrict paid Internet political advertisements. They are now subject to campaign spending limits and other restrictions. In addition, paid political advertisements must 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 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 2006 regulations, the FEC 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. In other words, bloggers and others who communicate on the Internet are entitled to the press exemption in the same way as traditional media entities.

Are the 2006 regulations still in effect?

Yes. Some FEC commissioners have indicated concern that the 2006 rules are outdated, but no new rules have been proposed. The FEC is taking comments on whether to re-examine the 2006 rules and will discuss the issue at a public hearing on February 11, 2015. The hearing will be streamed online.   

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