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Rudy Takala's Columns

FEC Urged to ‘Push the Limit’ in Expanding Oversight of YouTube, Facebook, Instagram

This contains more of my interview with FEC Commissioner Lee Goodman.

(CNSNews.com) -- A former elections official from California testified at a Federal Election Commission (FEC) hearing last week that the federal government should “push the limit” to increase federal oversight of political ads placed on Facebook, Instagram, and YouTube.

“Disclosure on the Internet needs to move quickly,” said Karen Getman, a Democrat who served as chairman of the California Fair Political Practices Commission (FPPC) from 1999 to 2003.

“It's okay to get it wrong and do it again. It's okay to be brave. It is okay to push the limit,” Getman testified at a standing-room-only public hearing in Washington.

Paid online ads that advocate for the election or defeat of particular political candidates are already subject to financial disclosure requirements. However, the FEC does not currently regulate online issue advocacy.

Getman was not specific in describing the new regulations that she was advocating, closing her testimony only by saying that the FEC should "push the limit" of what was legally possible.

“Campaign activities have rapidly moved to the Internet as we all had hoped. And as a result, it does take less money and less time for a candidate, an independent expenditure, [or] an issue campaign to spread their message widely. That's not going to stop simply because you let people know who is paying to produce the message that you're seeing on YouTube or Facebook or Instagram,” Getman testified at the hearing.

Getman was not specific in describing the new regulations that she was advocating, closing her testimony only by saying that the FEC should “push the limit” of what was possible.

“No one should get a carte blanche to put money in a campaign and not tell where that money is coming from,” she testified.

However, Shaun McCutcheon, an electrical engineer from Alabama who successfully sought to overturn aggregate campaign contribution limits in last year’s Supreme Court case McCutcheon v. FEC, testified against further regulation of online political ads.

"If Thomas Paine was alive today he would be using Twitter, Facebook, and Instagram to promote Common Sense,” said McCutcheon, founder of the Coolidge Reagan Foundation.

“Imagine the opportunity and prosperity that we could be enjoying if we had aggregate limits on government spending instead of limits on the people,” McCutcheon said.

The FEC currently regulates paid express advocacy online, which is defined as content that “includes a message that unmistakably urges the election or defeat of a clearly identified candidate.” Such ads fall under FEC's existing disclosure rules.

However, the commission does not regulate online issue advocacy ads, defined as an “electioneering communication” that: 1) references a candidate’s name "without specifically advocating [their] election or defeat"; 2) talks about candidates in the context of certain policy issues; and 3) are aired 60 days prior to a general election or 30 days before a primary election.

Prior to the hearing, Democrats such as Zephyr Teachout tried to dissuade First Amendment advocates from assuming that Internet freedom was at stake if the FEC started regulating online issue advocacy ads as well as paid express advocacy.

“This seems to me to be a major and silly political distraction, because this hearing is about what the FEC should be doing around McCutcheon,” said Teachout, a Fordham University professor who also testified at the hearing.

But FEC Commissioner Lee Goodman, who served as the commission’s chairman last year, said that Teachout was wrong to discount the risk of more regulation.

“Regulation of the Internet is a highly relevant topic,” Goodman told CNSNews.com. “[FEC] Chair [and former FPPC head Ann] Ravel continues to vote to regulate the Internet in case by case analyses. Chair Ravel has recommended that we regulate even free postings on YouTube, and [others who have testified] recommend that we regulate issue advocacy posted online.”

The FEC did not regulate issue advocacy from its creation in 1975 until the 2002 passage of the Bipartisan Campaign Reform Act (BCRA) – better known as McCain-Feingold – which restricted so-called issue ads and made it possible for them to be considered "electioneering communications".

According to FEC regulations, individuals who spend more than $10,000 on electioneering communications in a calendar year are subject to federal disclosure requirements.

To date, online content has not been considered electioneering communication because the Internet has not been defined as a "broadcast, cable or satellite" medium. "A communication that is disseminated through a means other than a broadcast station, radio station, cable television system or satellite system" is currently exempt, according to the FEC.

However, Goodman told CNSNews.com that some groups - such as Citizens for Responsibility and Ethics in Washington (CREW) - have been pushing the FEC to apply disclosure requirements designed for radio and television to content on the Internet.

Under such proposals, individuals who communicate about issues on the Internet could be restricted by campaign finance laws in the future.

“Their legal justification for that is that most citizens gain Internet access via cable or satellite technology,” Goodman told CNSNews. “Do you know how much issue advocacy discussing federal candidates occurs on the Internet?” he asked. “All of it.”

CREW said that "Goodman is mistaken about the intent of CREW's proposal. The goal is to close a loophole in disclosure laws, not censor speech about issues on the Internet."

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