Will Big Money Corrupt Online Politics?

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Author: Cornfield, Michael1,2 corn@gwu.edu

This fall, the Federal Election Commission will comply with a U.S. District Court ruling (Shays v. FEC) that tossed out the agency's hands-off the-Net interpretation of the Bipartisan Campaign Reform Act. Online communications, said the court, cannot be completely unregulated; paid political advertising on the Web, especially when it involves coordination among certain players, cannot proceed without government limits and requirements.

On April 4, the FEC issued a Notice of Public Rulemaking (NPRM 2005-10) containing dozens of propositions and proposals about online campaigning.

Public comment fell into three camps: the regulators, the rationalists and the rebels.

The regulators, epitomized by a joint submission from the Campaign Legal Center, Democracy 21 and the Center for Responsive Politics, contend that the FEC should include the Internet in the legal system of blocks, filters and searchlights that applies to broadcast and print campaigning. In their view, big campaign money from a corporation, labor union or wealthy individual presents "precisely the same dangers of corruption and the appearance of corruption" online as offline.

Therefore, when someone buys an ad on a Web site in coordination with a candidate, the spending should be treated as an in-kind contribution to that candidate's campaign. Costs incurred by an online "periodical publication" in putting together campaign news, commentary and editorials should be as exempt from expenditure regulations as their offline counterparts.

The rationalists see crucial differences between the Internet and other media. They urge the FEC to acknowledge those differences through special declarations and rules. The Center for Democracy and Technology (CDT) and the Institute for Politics, Democracy, and the Internet posted 11 "Principles to Protect Individuals' Online Political Speech" that garnered more than 1,100 online signatures.

Political speech on the Internet is special because this medium facilitates a "robust political conversation" that not only enhances campaign discourse, but also serves to check the power of big money on its own. On the Internet, no one can shield public disclosure of shady alliances between well-heeled interests and candidates. On the Internet, large sums of money can be raised in small amounts from millions of citizens -- at little cost to the campaign.

In its submission, the CDT urged the Commission to write a clear, simple rule for individuals so they would not have to hold back or hire a lawyer before talking, donating and associating online. Furthermore, to prevent one side in a campaign from intimidating another by mischievously filing complaints, "the Commission should declare that as a matter of general enforcement policy, the Commission will not investigate or penalize the un coordinated online activity of individual speakers."

Political bloggers lead the rebel camp. They see no rationale for regulation and predict that some in their ranks will go underground if the government tries, setting up a fruitless cat-and-mouse game which the mice will win because they can operate online anonymously, pseudonymously and from abroad. They do not see advocates in other media being forced to disclose payments from campaigns, and resent being singled out in a proposed regulation to that end. They know from experience that blogs do not fit the "periodical publication" category as neatly as political information purveyors in other media. As the ad hoc Online Coalition submission (with more than 1,500 signatories) notes, the power to decide who gets an exemption and who does not "invites abuse and censorship."

At this moment, I find myself between the rationalists and the rebels. I signed both online petitions, and was perturbed that a pro-regulatory coalition including an organization calling itself "Democracy 21" did not seek public support for its position. I do not dismiss the regulators' concerns outright. I am particularly interested in the behavior of the big four companies whose home pages so many people pass through on their way to online politics: AOL, Google, MSN and Yahoo! Those pages could become sites for big money to interfere with the discourse, should one or more of those companies decide to take sides, surreptitiously and discriminatorily in how they accept and frame ads. It was not a good sign recently when Google said yes to an anti-Tom DeLay ad and no to an anti-Nancy Pelosi ad. Legal, but not good.

Still, big money corrupting online politics remains largely a hypothetical, and I do not believe in preemptive regulation, especially when it might do more harm than good. Like Reno vs. U.S., the landmark court case that overturned a congressional law regulating the Internet with respect to pornography, the FEC's decision will send a message to online politickers above and beyond the confines of its decision. There are almost no scarcities or monopolies online to justify government intervention beyond cases of fraud or collusion. Consumers have plenty of options and controls. So the Commission should fix the absolute minimum of what must be fixed, and let online campaigning continue to run free.

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Advice by Michael Cornfield

Michael Cornfield is senior research consultant at the Pew Internet & American Life Project and adjunct professor at George Washington University's Graduate School of Political Management.