December 11, 1999
Political campaigns online: Beyond the law's reach?
by John Aravosis
THE Internet has come of age in this presidential campaign. Every candidate has his sophisticated website, and sets great store by it. But what about the hangers-on, who set up websites either to support a candidate or, more often, to ridicule him?
George W. Bush knows what should happen to the latter: they should be squashed. He has been suffering from the attentions of www.gwbush.com, a spoof site with an official-looking photograph of Mr Bush that proves, on closer inspection, to feature a straw stuck up the governor's nose. Mr Bush has sent a cease-and-desist letter to the site's creator, Zack Exley, accusing him of using pictures "borrowed" from his website. He has also complained to the Federal Election Commission (FEC) that the site constitutes "express advocacy", and violates the Federal Election Campaign Act's spending limits and registration requirements.
The FEC - the "Failure to Enforce Commission", its critics call it - is unsure what to do about this. It is seeking public comment over the next two months on how election law should apply to sites like Mr Exley's, and indeed how it applies to the Internet in general. It is a large problem. One voter in every ten surfs the net to find advice on how to vote. Lobbyists bombard Congress with electronic messages: the American Civil Liberties Union (ACLU) sent over 200,000 last year. Politicians raise big sums online (Bill Bradley has just passed $1m). And from RunHillary.com to AlBore.com, websites laud and lampoon nearly every candidate.
The FEC says it is "unquestionable" that federal election law applies to activity on the Internet. Critics such as the ACLU disagree. "Political speech deserves the highest protection of the first amendment and should only be regulated if there's a threat of corruption," says Laura Murphy, director of the organisation's office in Washington, DC. "The FEC has yet to demonstrate how this new web technology could have a corrupting influence on the political process." Yet an exceptionally large e-mail Christmas card list, or a highly-visited website, may be so influential - and even so corrupting - that it could draw the FEC's attention.
Others say money should be the criterion for FEC involvement. If people are not spending much money on their advocacy, they should stay unregulated. Yet on the Internet, partisans can build websites and send thousands of e-mails at a tiny cost.
David Mason, one of the FEC's six commissioners, said recently that the FEC would take a relatively permissive approach to Internet activity, exempting most private political speech. "It is my view", he said, "that someone who is operating on their own would be covered by an exemption in the act which applies to voluntary activity." On the other hand (considerable confusion here), "the volunteer exemption applies to someone who is volunteering on behalf of the campaign, and if you're out there on your own you may not be covered."
It appears, then, that the exemption may not cover volunteers who are truly independent of the candidates they support. Take the case of Noah Heller, a 19-year-old freshman student and co-owner of NetizensForBradley.org. Mr Heller has deliberately had no contact with the Bradley campaign, to avoid being labelled an in-kind contribution. Yet, by obeying the letter of the law, he is truly "on his own", and possibly not covered by the volunteer exemption.
Then there is the question of websites that generate revenue. "When you start taking money from somebody for what you're doing, that is a different sort of thing than volunteer activity in your home," says Mr Mason. But many personal websites, having almost no money behind them, try to offset costs with banner ads and other e-commerce. Mr Exley, for example, sells T-shirts and bumper stickers on gwbush.com to help maintain the site. He has also been soliciting online donations to create television and e-commercials critical of Mr Bush (he raised $2,500 in only five days). But the ads may very likely draw the FEC's attention.
A case last year gave some guidance on how the FEC might treat websites that do not merit a volunteer exemption. Leo Smith, a tax consultant in Connecticut, built a personal website advocating the defeat of a local congresswoman, Nancy Johnson. The FEC said the site constituted "express advocacy" that would trigger an independent-expenditure reporting requirement if its value rose above $250. However, if Mr Smith co-ordinated his activities with Ms Johnson's official opponent, it would become an "in-kind" contribution that could not exceed $1,000.
But how would the FEC put a value on the site? The commission said it would add the fee for registering the domain name (typically $70) to the overhead costs of the computer hardware and software (these could easily be over $1,000) and Internet services (perhaps $240 a year), then divide that sum by the total number of websites Mr Smith maintained. Such a formula could push most websites over the legal threshold. But the more an individual used the Internet to influence politics, the more likely he would be to avoid regulation, as total expenses (which are fixed) would be divided by a greater number of sites.
The finances of websites are often mysterious even to their creators. At NetizensForBradley.org, Greg Laynor, one of the site's founders (who also happens to be 14, and at school), explains that dozens of volunteers work on the site, but that they have not spoken to each other. They communicate only by e-mail. Even Greg and Mr Heller, the other founder of the site, have never spoken. There is no way for them to know what money the collective has spent on maintaining the site, and therefore whether they have passed the spending limits. And it is possible that the FEC might count the hardware and software costs of the volunteers.
Hyperlinks (a word, phrase or image on a web page that, when clicked, sends you elsewhere) are also tricky. Mr Mason says hyperlinks on personal websites should be exempt, and those on commercial sites regulated. But, again, everything depends on value; and how should hyperlinks be valued, when they can be created in seconds at no marginal cost, and are often paid for by barter (you link to me, I link to you)? It is also hard to see how anyone could spend $250 - the limit for unreported independent expenditure - on forwarding e-mails. But Mr Mason says that e-mail lists of a certain size, even if they did not surpass spending limits, may require regulation.
When does an e-mail list, or a website, get too large or influential? Even a handful of e-mails can have a disproportionate impact. In 1996, the Children's Defence Fund's 2,000 e-mail subscribers regularly forwarded alerts to another 200,000 people. And a high-profile complaint can propel a previously obscure website to fame, attracting the eye of the regulators. (Visitors to gwbush.com soared from 30 to around 500,000 a month after Mr Bush filed his complaint.) How will the FEC know when such a nebulous line is crossed, and, more important, how will the Internet advocates know?
Roger Stone, a former election lawyer who is director of political advocacy for Juno Online Services, says the rules are now so confusing that "even lawyers call specialists." In the case of NetizensForBradley.org, the specialist is the young Greg Laynor, who has read all the FEC literature but still concludes that "it's not clear if we're doing something wrong." Mr Stone says the commission must tailor its rules to non-lawyers like Greg, lest frustrated netizens "ignore the law and act at their peril, or throw up their hands and decide it's not worth becoming politically involved."
The beginnings of a chill are already in the air. At the end of November Mr Mason complained that the FEC had received only 24 e-mails during the first two weeks of public comment. And at least one big political website said it would not submit comments for fear of attracting the regulators' attention.
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