A curious thing happened on the way to protecting online speech. Last week, a congressional committee put off for another day how it would handle competing proposals said to protect bloggers from regulation under campaign finance laws The two bills are very different and free speech supporters should tune in to how this battle plays out when the bills come back to the floor in the next few weeks. The outcome may well determine what rules we all have to follow when writing about campaigns online.
The first bill, HR 1606 offered by Rep. Jeb Hensarling (TX), would exempt online 'public communications' which sounds better than what it means. Public communications in the legal jargon of campaign finance law refers to the actions of state political parties and coordination rules between political committees. It does not refer to blogs (this post, for example, is not a public communication under the law and would have no protection under HR 1606). The bill offers false hope to those who seek protections for the independent opinions of online speakers.
The second bill, HR 4900 drafted by the Center for Democracy and Technology (CDT), would specifically exempt bloggers without mucking up the campaign finance rules. In addition, the bill would write into law an extension of the same press exemption to online media that is currently enjoyed by the offline, mainstream media. HR 1606 provides no such guarantee. CDT has an excellent comparison of the two proposals.
Despite several analyses clearly explaining the differences and the benefits to the blogging community of HR 4900 over HR 1606, opponents of the stronger protections say it is now a matter of trust -- they just don't trust those supporting HR 4900, specifically the campaign finance reform groups who they say are working to deny free speech rights to online speakers. With all the information circulating on this issue, it may be helpful to consider who is behind the information you read.
Before putting faith in Mr. Hensarling's interest in protecting free speech, one should consider that his rating by the ALCU is zero. His rating from the Christian Coalition, a leading proponent of regulating online content, is 91%. Prior to this debate, he has not stood up to protect an open Internet when given the chance and his positions strongly suggest he supports measures like the Child Online Protection Act (he was not in Congress when they were passed). His opposition to campaign finance laws seems more central to his beliefs than his desire to protect free access to all content on the Internet. In short, his interests are not in line with those of the blogging community. Nor are the free speech interests of bloggers necessarily the same as some of the partisan lawyers who have spent careers attacking campaign finance law and are now freely offering advice on what these proposals would accomplish.
On the other hand, Nicco Mele recently spoke out in support HR 4900 because he believes it offers stronger protection to the vast majority of bloggers. While DailyKos posts support the Hensarling bill, they have also described HR 4900 as "thoughtful" and "worthy". The Center for Democracy and Technology, the author of the stronger proposal, has no particular interest in campaign finance laws, but has an extremely strong track record as a watchdog of an open and robust Internet. The congressional sponsors of the stronger bill, Reps. Bass and Allen, both are more trusted advocates of free speech than Mr. Hensarling. And, while the campaign finance reform groups like U.S. PIRG are concerned about opening up loopholes in the law, we are also working to level the playing for all candidates and speakers.
Mr. Hesarling's supporters have argued that online speech is not corrupting and therefore there's no reason for campaign finance laws to apply to the Internet. As former staff for the ACLU, I don't believe any speech in a free society is corrupting - online or offline. It is the large contributions that buy elections that harm our democracy. Campaign finance laws should help raise the voices of regular Americans, like the growing number of bloggers, and let all of us compete with well-financed powerful interests. HR 4900 explicitly exempts individuals who spend less than $5,000 a year and groups that spend less than $10,000. Supporters of HR 4900 agree with the vast majority bloggers who rightfully argue that for millions of independent voices the low cost of entry on the Internet must be protected. Given the narrow way in which his bill was written as well as his track record, I don't know that the same can be said of Mr. Hensarling.