May 16, 1999
Small Campaign Web Sites May Collide With Election Laws
By REBECCA FAIRLEY RANEY 
hen Jonathan Prince heard that former Senator Bill Bradley of New Jersey was running for President, he wished that he had the money to contribute to the campaign. But he didn't. So Prince, a free-lance Web site designer in Washington, did what he could by building the Bill Bradley For President 2000 unofficial Web site.
Prince, who has had little contact with the campaign, saw himself as an independent advocate. But under a recent interpretation of election law by Federal regulators, his activities could be the legal equivalent of the work of a professional political consultant.
In the same spirit, dozens of fans and detractors of Presidential candidates are building Web sites these days independently of campaigns. But if the unofficial sites encourage people to vote for or against candidates, they could run afoul of Federal election laws. Under those laws, which have been interpreted by Federal regulators to apply to Web sites just as they apply to television ads, even lone advocates are required to post disclaimers that identify who built their Web sites and to file expenditure reports with the Federal Election Commission to account for donations to campaigns.
With this issue, the Internet pushes two essential democratic practices into conflict: the need to require campaign contributors to disclose their donations, and the need to encourage political expression. Critics of the FEC argue that applying existing election law to the Internet will stanch the cascade of political expression that the medium makes possible.
"If a citizen cannot express an opinion without regulation of a Federal agency, then grass- roots advocacy is in peril," Prince said. "That's quite ridiculous. It completely goes against the spirit of the Internet."
FEC officials are well aware of the conflict.
"One of my concerns is the chilling effect. That obviously is a bad outcome," said David M. Mason, a commissioner with the FEC. "There may be a lot of activity we would want to protect carried on by individuals."
Mason has asked the commission to fully consider how to apply election laws to Internet campaigning. One topic for consideration is whether the FEC's so-called "media exemption" can be applied to Web sites. The exemption allows news organizations to endorse candidates without filing disclosure forms.
Federal regulators' current interpretation of the law, which makes individual Web publishers the equivalent of political action committees, was issued as an FEC advisory opinion in November. The opinion was requested by Leo Smith, an individual who had built a Web site expressing his support for Charlotte Koskoff, a Democrat running for Congress in Connecticut. Smith was not affiliated with the campaign, but was soliciting contributions and volunteer time for Koskoff on his Web site. Lawyers for the FEC found that the same law that applies to disclosure on mailings, billboards and television advertisements applies to Web sites, and that Smith was required to post a disclaimer on the site and file a form disclosing the amount of his contribution.
Of course, the existing election law contains some loopholes for online political sites. Sites that express opinions about candidates' positions without encouraging people to vote for or against the candidates do not cross the legal line. Material that does cross the line includes key words like "vote for," "elect," "defeat" or "reject." Web site operators who use those words, Mason said, "would be well-advised to put up a disclaimer."
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Still, the chance of Web publishers being taken to task is slim. | |
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On the other hand, sites that engage even in strong criticism, like "Bush Watch", or intense parody, like "All Gore", are less likely to run afoul of election law because they do not specifically direct people to vote a certain way.
"If people have something to say about a candidate that doesn't say vote for or against the candidate, that's another option," Mason said. "If you are just critical of a candidate for a policy position, then you're pretty much free to do what you want."
In the current interpretation of the law, Web publishers working independently of campaigns do not have to file disclosure forms if they spend less than $250 on the site. However, tallying the costs can be complicated. In a summary of its advisory opinion, the FEC reported that costs include "the domain name registration fee, the amount invested in the hardware (computer and peripherals) that created the Web site and the utility costs associated with creating and maintaining the site."
Also, if an independent Web site operator downloads a speech or images of a button or a banner from an official campaign site and posts it, he could be considered to be making a contribution even if campaign officials are unaware that the material is being used. In those cases, reporting is required for all contributions.
Without question, the chance of Web publishers being taken to task is slim. FEC officials generally react to complaints instead of actively policing campaign practices. Considering this, the entire election cycle could pass without most online advocates having ever heard about the election law.
Still, Michael Cornfield, a political scientist who specializes in online politics at George Washington University, said formal distinctions need to be made between political professionals and individual advocates.
Under the current interpretation, he said, "any citizen who wants to express himself on a campaign has to have an accountant and a lawyer. It's just awful. That should not hold water in a country where the citizens are asked to educate themselves."
The application of the law is likely to encounter resistance from Web publishers. Michele Hoferitza, who runs a Web ring for sites that support Governor George W. Bush of Texas, said her fellow site publishers have scoffed at the notion that Federal regulators would take any interest in their campaigning. Hoferitza raised the question with them because of her background as a Congressional staff member in Washington before moving to her current home in Syracuse, Utah.
"You're going to get into a definition of what a Web site is," she said. "If I had a room in my house where I posted up information about a candidate and invited a few people to come over and look at it, then I'm not making a contribution. That's how a lot of people are looking at it."
Hoferitza said old regulations would not fit the new medium. She compared it to applying postal regulations to e-mail.
"Attempts to tightly control it are going to be difficult," she said. "The FEC comes along and tells us we need to file an independent expenditure, and a lot of them are going to go, 'Yeah, right.' "
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