Representatives Shays and Meehan yesterday offered a defense of HR 4194, their alternative to a broad exemption for the Internet from the regulation of "public communications."  They are concerned that their measure has given rise to "misconceptions," including misconceptions about their true purpose, which they claim to be a largely limited one of avoiding corporate paid advertising on the Internet.

      The threat of "campaign ads on the Internet"  is the principal "soft money loophole" that Messrs. Shays and Meehan have found in the full exemption.  And they appeal to the authority of the district court in Shays v. FEC, which overturned the original FEC rule, arguing as follows:

In the court case reviewing [the original exemption], Judge Colleen Kollar Kotelly wrote that the language "severely undermines" federal election law, would "permit rampant circumvention," as well as "foster corruption or the appearance of corruption."

     This quotation might suggest that Judge Kollar-Kotelly worried about paid Internet advertising, but there is no mention of it in her opinion.  This is in part the result of the way that Shays and Meehan argued their case.  The concerns they brought before the Court were in no way limited to "campaign ads on the Internet," though this is the line of argument they favor today.  They instead sounded the alarm over a "loophole" that would more generally "enable candidates, parties and outside spenders to engage in unregulated and unrestricted coordination via the Internet." Mot. Summ. J. at 20.  

     To be sure, the case of paid campaign ads was one example they used, but it was not the heart of their claim.  It was a helpful example, moreover, because they were arguing that Internet communications should be read into the term "general public political advertising" contained within the definition of "public communication."  2 U.S.C. § 431(22).  Thus they pointed out that "[T]here can be no question that ‘political advertising’ takes place on the Internet…."  Mot. Summ. J. at 22.  This was a significant move in their claim, but its purpose was to show that the Internet was a regulated form of "public communication":  Shays and Meehan’s intention was decidedly not to limit the term’s reach to "paid campaign ads."  Indeed, they argued that "this new technology must remain subject to the basic architecture of the federal campaign finance laws, including when used for coordinated communications."  Id. at 24.  They referred to paid ads, but also, and separately, to "mass distribution efforts."  Id. at 29. 

     It is not surprising then that Shays and Meehan contrasted their position with that of Senator Bob Bennett’s, in the "Internet Freedom Protection Act."  His bill, they told the Court, "would have exempted many individual Internet political activities  while continuing to regulated paid advertising, solicitation, and corporate and union activities over the new medium."  Id. at 25.  And yet it "died in committee," which suggested to them that this was not an approach that Congress favored, nor one that the Court should allow the FEC to adopt. 

     In other words, Messrs Shays and Meehan did not approve of exempting "many individual Internet political activities while continuing to regulated paid advertising…."  This was not their program at all.  It was—as they were then, if not now, prepared to openly avow—to ensure that "this new technology …remains subject to the basic architecture of the federal campaign finance laws…."

  
Bob Bauer