The FEC, the Internet Squabble and the February Hearing

October 31, 2014
posted by Bob Bauer

The Commission seems to be back at it again: quarreling publicly over disclosure rules and policy applied to the Internet advertising. The Republican Commissioners are calling for a public uprising of sorts against Commissioner Ravel’s call for reconsidering those rules and policy as part of an Advanced Notice of Proposed Rulemaking. They are urging public comments—they have in mind protests—attacking tighter reporting requirements. The Internet has been provided with lenient regulatory treatment, a choice for which the Commission has been generally applauded, and the Republican Commissioners want to keep things that way. Commissioner Ravel has both moved to reopen the question and indicated her view that more regulation may be in order—that significant sums spent for political advertising on the Internet should be viewed, for disclosure purposes, as no different than broadcast, cable or satellite communications.

Those who are rooting for a Commission that works better and more collaboratively across the partisan divide have reason for concern. Only a few weeks ago, the Commissioner managed to approve rulemakings to take account of recent Supreme Court decisions. The vote was not unanimous, but a 4-2 decision was progress, and at the Commission table, there was hope expressed that the agreement reached that day marked a fresh commitment among Commissioners to explore additional areas for agreement. It would be a shame if now, in the flap over Internet regulation, the Commission quickly regressed to caustic exchange and administrative stalemate.

All this excitement seems especially unnecessarily in light of the very preliminary discussion represented by the ANPRM.   Nothing immediate, let alone dramatic, is about to happen. The agency has created an opportunity for written comment and then discussion at a February hearing. The time does not seem right for any one side to take up arms and man their battle stations.

And the issues before the Commission, drawn from the McCutcheon opinion, are not necessarily in all cases appropriately resolved, if addressed at all, by agency action. The Court suggested that if the question was how best to enforce the contribution limits, the “alternatives” in a number of cases were ones that Congress might consider. 134 S. Ct, 1434, 1458 (2014)(“Importantly, there are multiple alternatives available to Congress that would serve the Government’s interest in preventing circumvention while avoiding ‘unnecessary abridgment’ of First Amendment rights.” ) (citation omitted and emphasis added). So whether it is disclosure or the further regulation of joint fundraising arrangements, the Commission’s proceeding could be useful in airing views and creating a record helpful to legislators, even if the agency out of prudence or lack of agreement would not, or could not, act on its own. Major changes to the disclosure rules affecting Internet communications may well fall into this category.

It is good that the FEC has arranged for this hearing process. It should be allowed to proceed without the Commissioners’ own disagreements overshadowing it, or getting completely in the way.


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