From Banning Books to Banning Blogs

How the DISCLOSE Act will restrict free speech

The Obama administration has announced plans to regulate the Internet through the Federal Communications Commission, extending its authority over broadband providers to police web traffic, enforcing "net neutrality."

Last week, a congressional hearing exposed an effort to give another agency—the Federal Election Commission—unprecedented power to regulate political speech online. At a House Administration Committee hearing last Tuesday, Patton Boggs attorney William McGinley explained that the sloppy statutory language in the "DISCLOSE Act" would extend the FEC's control over broadcast communications to all "covered communications," including the blogosphere.

The DISCLOSE Act's purpose, according to Democratic Congressional Campaign Committee chair Chris Van Hollen and other "reformers," is simply to require disclosure of corporate and union political speech after the Supreme Court's January decision in Citizens United v. Federal Election Commission held that the government could not ban political expenditures by companies, nonprofit groups, and labor unions.

The bill, however, would radically redefine how the FEC regulates political commentary. A section of the DISCLOSE Act would exempt traditional media outlets from coordination regulations, but the exemption does not include bloggers, only "a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication…"

In Citizens United, the Supreme Court explicitly rejected disparate treatment of media corporations and other corporations (including nonprofit groups) in campaign finance law. "Differential treatment of media corporations and other corporations cannot be squared with the First Amendment," Supreme Court Justice Anthony Kennedy wrote for the majority.

No legitimate justification exists for excluding media corporations from regulations on political speech applicable to other corporations, unless the goal is to gain the support of editorial boards funded by the New York Times Co.

The DISCLOSE Act would ban U.S. subsidiaries from speaking if foreign nationals own 20 percent of a company's voting shares. Mexican billionaire Carlos Slim owns a 7 percent stake in The New York Times Co.—yet the New York Times would not be restricted if other non-citizens owned 13 percent of the company's stock.

The Times editorial board expressly advocates the election or defeat of candidates, acts of political speech worth thousands of dollars, yet it is exempted from similar regulations imposed on other companies wishing to speak out about candidates. The Times also writes unsigned, anonymous attacks, yet the DISCLOSE Act would compel the political speech and identification of nonprofit groups: a bulky, filmed disclaimer estimated to be 2-3 times longer than candidates' disclaimers.

All this hasn't stopped the Times and other dead-tree media outlets from enthusiastically endorsing the DISCLOSE Act. Perhaps the Times scribes wouldn't be so rah-rah about these regulations if they realized they would give government the power to regulate political speech on the Web and determine which companies are "media"—meaning exempt from regulation—and which are "political"—meaning heavily regulated.

The House version of the DISCLOSE Act, expected to be marked-up next week, includes the definitions "communication" and "covered communication," which differs from the term "public communication" adopted by the FEC in a 2006 rule exempting online speech from government control.

When McGinley and the Center for Competitive Politics pointed this out amid the Democrats' rush to pass this poorly-written bill, "reformers" attacked the messengers. In a post called "Who would've known that the DISCLOSE Act calls for burning books, regulating the Internet—and even creates death panels?" Public Citizen lobbyist Craig Holman compared pointing out a serious consequence of sloppy statutory language in this campaign finance bill to "invent[ing] the myth that the [health care bill] would create the infamous 'death panels.'"

The Brennan Center for Justice's Ciara Torres-Spelliscy accused us of "a blatant attempt to kick sand in the eyes of lawmakers," and attempted to deny the plain meaning of the statutory language. Nonetheless, she admitted that "the FEC is most likely to stand by the 2006 Internet rules and only reach PAID political banner ads; not bloggers." (Emphasis added.)

The response of "reformers" to serious questions about a bill imposing civil and criminal penalties for engaging in political speech would be shocking if it wasn't so typical. Most likely isn't good enough for people who want to speak out in politics without threat of jail time and hefty fines.

There's little reason to trust the "good government" crowd on this. When the issue of internet regulation first came up after passage of the McCain-Feingold law in 2002, the goo-goos denounced a deregulated Internet as a "loophole" in campaign finance law, a "poison pill," "anti-reform," and a "step backwards." In court filings, they called the Internet "a favored conduit for special interests to fund soft money and stealth issue ads into federal campaigns." While most pro-regulation groups eventually endorsed the FEC regulations exempting the Internet amidst a public backlash, this was simply a tactical consideration to head off passage of the Online Freedom of Speech Act of 2006, which would have codified a broad exemption for political speech online ("reformers" unanimously opposed the bill).

Solicitor General Elena Kagan, who President Barack Obama nominated to the Supreme Court last week, argued at the rehearing of Citizens United that "the FEC has never applied this statute to a book," referring to the now-abolished corporate source prohibition on independent speech. The FEC, though, launched an investigation into a book George Soros wrote in 2004 advocating the defeat of President George W. Bush.

Chief Justice John Roberts didn't find Kagan's argument convincing: "We don't put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?" Kagan responded that political pamphlets could be banned.

Last Thursday, after meeting with the newly-minted nominee, Sen. Arlen Specter (D-Penn.) told reporters that he felt more comfortable about Kagan's views because "we talked about the Citizens United case and she said she thought the court was not sufficiently deferential to Congress."

Now that Democrats in Congress seek to ram through an expansive regulatory regime for regulating political speech by Independence Day (no joke), it seems Kagan would defer to Congress's wisdom on such restrictions rather than the plain text of the First Amendment: "Congress shall make no law… abridging the freedom of speech, or of the press."

If Congress can ban political TV ads and pamphlets, why not blogs?

Bradley A. Smith, a former chairman of the Federal Election Commission, heads the Center for Competitive Politics. Jeff Patch is the Center's communications director.