Regulating Blog Campaign Advocacy

Allison Hayward, an assistant professor of law at George Mason University, has a new article coming out entitled Regulation of Blog Campaign Advocacy on the Internet: Comparing U.S., German, and EU Approaches. (Credit to Todd Zywicki at the Volokh Conspiracy for the tip.) Hayward writes in her abstract:

In brief, U.S. law protects blogging content, but may impose restrictions on the source of political commentary by barring certain funding sources. German law imposes stricter limits on the content of blogging, but does not regulate financial sources to the same degree. European court rulings may offer greater protection than domestic German law, but seem inconsistent and thus add uncertainty and ambiguity to the situation. In the end, bloggers may avoid legal entanglement because they enjoy public sympathy and support, but better still would be an international agreement to spare blogging from prosecution.

This is a subject we are working on for the CMLP Legal Guide, so I eagerly printed her excellent article (yes, I prefer to read things in hard copy). I'll touch on a few of the more important issues in this post.

At the outset, it's important to keep in mind that "political blogs" don't fit into one neat regulatory box. Rather, their varied content cuts across conventional regulatory schemes that were created to deal with an entirely different landscape of communications media. Not surprisingly, they haven't done a very good job even within the limited context they were created for.

In the U.S., the primary law at issue is the Bipartisan Campaign Reform Act (often referred to as "McCain Feingold"), which imposes limitations on political parties, candidates, and coordinated expenditures, and requires disclaimers on advocacy materials if the spending is for "public communications." After several failed attempts, the Federal Election Commission (FEC), which is charged with interpreting and enforcing McCain Feingold, issued final rules in 2005 that define the activities covered by the Act.

Under the FEC's rules, "uncompensated Internet activity" by individuals or groups of individuals, whether acting independently or in coordination with a candidate, are exempt from the law. See 11 CFR 100.94 and 11 CFR 100.155. The term "Internet activities" includes, but is not limited to: "sending or forwarding electronic messages; providing a hyperlink or other direct access to another person's Web site; blogging; creating, maintaining or hosting a Web site; paying a nominal fee for the use of another person's Web site; and any other form of communication distributed over the Internet."

Does this mean that all political blogs are in the clear? Not exactly.

  • If your "major purpose" is to influence elections and you spend $1,000 or more on expenditures, including money paid for political ads, you may be deemed to be a political committee subject to a set of complex FEC regulations. See 11 CFR 100.5; FEC Advisory Opinion 2006-20 (Oct. 10, 2006). (In June 2007, conservative blogger John Bambenek filed a complaint with the FEC, alleging that the liberal website Daily Kos operates as a "political committee" and therefore should be subject to FEC rules. This is a debatable position -- and has been hotly debated.)

  • If you accept political advertisements from a candidate on your site gratis or pay for ads on another site that specifically call for the election or defeat of a clearly identified candidate, you will need to comply with the FEC's reporting and disclosure requirements. See 11 CFR 109.10.

  • If you solicit -- and collect -- financial contributions for a candidate, you may fall afoul of the FEC's rules regarding "bundling." See 11 CFR 110.6.

We will go into each of these issues in much greater detail in our forthcoming Legal Guide. In the meantime, for more information on U.S. campaign finance laws, see the Center for Democracy & Technology's Net Democracy Guide. As for the German and EU approaches, you'll find a thorough review in Hayward's article.


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