The FEC’s War on Free Speech and the Coming Battle for the Web

“Congress shall make no law … prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress
of grievances.”
������-First Amendment, Constitution of
the United States

�������Both the current scheme and
alternatives proposed by candidates this election cycle to “reform”
campaign finance violate the rights spelled out in the First Amendment.
The Federal Elections Commission should be abolished and political freedom
restored to U.S. elections.

�������Unfortunately, the FEC appears
to be headed toward regulating the web with its brand of censorship.

Campaign Finance Myths

�������Much of the hype surrounding
campaign finance reform rests on ignorance of how much is spent on political
campaigns and how campaign finance regulations effect such spending.

�������The first myth is that obscenely
large sums are spent on elections. In fact total political campaign spending
during elections works out to a mere $10 per voter every two years. If
anything, that’s a steeply discounted sum considering the economic, political
and military might of the United States; a vote for a U.S. politician
has much more worldwide impact than a vote in, say, Italy’s elections.

�������The second myth is that campaign
finance reform keeps big money donors such as corporations, unions and
other special interest groups from influencing elections, while “empowering”
the average voter.

�������In fact, donation limits do
just the opposite. Because of the massive amount of paper work required
by the FEC, lots of small donations can nickel and dime a campaign to
death. It becomes much more cost effective to seek large donations from
big donors than bother with the little people who might only be able to
give $20 or $50 at a pop.

�������In addition, because the Supreme
Court has ruled restrictions on spending independent of campaign organizations
violates Constitutional guarantees of free speech, large donors can and
do bankroll independent organizations to get their views across. Groups
such as labor unions and the Christian Coalition have done this most visibly
this year, garnering the wrath of those opposed to their respective political
goals.

Real Effect of Campaign Finance Laws

�������The main effect, then, of the
FEC has not been to freeze out large corporations or special interests
groups such as unions, but instead to lower competition from challengers
and third parties and punish genuinely grassroots organizations.

�������Passed in 1971 and revised
several times since, the Federal Election Campaign Act has clearly been
used to prevent third party challenges to the Republican/Democrat hegemony.
When the FEC was established in 1974, Representative David R. Obey (D-Wis.),
put it bluntly when he testified, “We should not be in the business
of encouraging minority parties. The two-party system has been the basic
strength of American democracy.”

�������Historically, new and innovative
political ideas have benefited from wealthy benefactors willing to underwrite
various causes. One can easily imagine a wealthy individual concerned
about the environment donating millions of dollars to give a party advocating
pro-environmental ideas a competitive shot in elections. Current FEC guidelines
outlaw such donations, ensuring the Democrats and Republicans have no
real challengers.

�������FEC regulations and investigations
also hurt grassroots campaigns tremendously, chilling free speech. It
is currently legal for groups to independently distribute information
about their views, but it is illegal for them to do so in coordinate with
a political campaign.

�������Unfortunately, the line distinguishing
between what is and is not a campaign effort is a hard one to draw. The
current complaints against the Christian Coalition and various unions
is that they illegally coordinated their publications with the Republican
and Democrat parties respectively.

�������Large organizations such as
these can generally afford the risk of retaining lawyers for yet another
FEC inquisition, but small groups cannot. So rather than risk the wrath
of the FEC, many of these instead simply curtail what they say and how
they say it around election time. The cost for those who don’t can be
prohibitive.

FEC’s Inquistions

�������The October issue of Reason
magazine highlighted the vindictive investigation by the FEC into two
ACT-UP chapter which spent more than $5,000 organizing a 1990 boycott
of Phillip Morris for its support of Sen. Jesse Helms (R-North Carolina).
Helmes claimed the boycott was an illegal contribution to his opponent’s
campaign.

�������According to Reason, the FEC
spent more than two years investigating the ACT-UP chapters, finally pulling
the plug in 1994 after the groups had already went out of business.

�������The Cato Institute documented
similar instances of investigations and fines of grassroots organizations
involved in politically unpopular causes in the early and mid-1980s.

Today the Nation, Tomorrow the Web

�������Now thee first rumbles are
being heard of extending the FEC’s war on free speech to the web. Both
the San Jose Mercury News and Mother Jones recently published articles
raising the specter of FEC regulation of the net.

�������The current debate centers
around California’s Proposition 211, a ballot initiative which would make
it easier for investors to sue companies for securities fraud. The Mercury
news wonders whether or not it is legal for popular web sites such as
Netscape and Yahoo! to refuse to run ads in favor of Proposition 211,
which both companies oppose.

�������Yahoo! finally agreed to run
a pro-211 ad, while Netscape claims it was never asked to run such an
ad.

�������Kevin Lee Thomason, who created
the pro-211 Internet site, seems to believe that popular web sites might
eventually face the same regulations that television stations do. Thomason
told the Mercury News, “When certain companies have a large market
share, they create an obligation to exhibit fairness when it comes to
political issues.”

�������Mother Jones writer Eric Umansky
outlines the more important, and potentially more volatile, issue of whether
or not the small icons on Microsoft, Netscape and other sites which link
to anti-211 sites aren’t actually contributions which must be reported
as such.

�������There is some precedent for
thinking they might be. Earlier this year Compuserve offered to give free
web space to political candidates, but was forced to withdraw the offer
after the FEC ruled it constituted an in-kind donation which is illegal.

�������This incident clearly illustrates
just how much FEC actions can diminish rather than enhance the level and
quality of political discourse. Although much of the concern about censorship
on the net has been reserved for the most blatant attempt at censorship,
such as the Communications Decency Act, little activity has focused on
how agencies such as the FEC might impact free speech on the net. Unlike
the CDA, the Supreme Court has upheld the FEC’s right to tinker with free
speech, and if it decides to start going after political speech on the
net it is much more likely to be successful than laws like the CDA.

�������Any political site which mentions
candidates, positively or negatively, could face a series of increasingly
stringent regulations, restrictions and filing requirements to meet the
FEC’s Byzantine rules.

Time to Get Rid of the FEC

�������After a series of investigations
of both parties in the early and mid-1980s, the Republican platform in
1984 included a plank to get rid of the FEC. Now it is imperative that
the FEC either be abolished or restrained before it starts limiting political
discourse on the web. The problem with the FEC is it fundamentally limits
the range and extent of political discussion, favoring entrenched political
interests at the expense of outsiders and challengers.

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