On June 3, the James Madison Center for Free Speech submitted written comments on a proposed rulemaking by the Federal Election Commission concerning regulation of the Internet. The proposed rules focus on definitions of "public communication" and "generic campaign activity" and disclaimers and sought comments on such issues as whether bloggers should be recognized under the media exception (which among other things permits news media corporations to make communications barred to other corporations).

The FEC had earlier promulgated a rule exempting Internet communications from the definition of "public communications" (which definition has various applications in the FEC regulations). But that rule was challenged by congressional sponsors of the McCain-Feingold law (the Bipartisan Campaign Reform Act of 2002, aka BCRA) as being beyond the intent of Congress. A federal judge declared that the FEC had to somehow include the Internet in its rules. Instead of appealing the district court decision, the FEC instituted the present rulemaking to comply.

In its 27-page comments, the Madison Center described the Internet as the People's Press and urged the FEC to leave it alone to the greatest extent possible. The comments argued that any new regulations must be justified on the basis of the first principles of citizen sovereignty and self-government and the concomitant liberties of speech, press, and association, not on the basis of mere creeping incrementalism. Any regulation must be capable of withstanding the strictest judicial scrutiny, with a clear explanation of how the rule is narrowly tailored to compelling governmental interests.

The comments argued that the corruption originally recognized by the U.S. Supreme Court as justifying regulation of speech that touches on elections was the fear of quid pro quo exchanges of money for political favors, but that this does not apply to much Internet activity because the extreme low cost eliminates any quid for which there could be a quo. Where there is no cognizable "value," based on objective criteria, there is no potential for corruption and no basis for regulation. The Madison Center counseled the FEC to create a bright-line rule, readily understood by all, so that citizens would neither have to learn legalese to understand the rule nor think twice about publishing their thoughts without hiring a legal expert.

James Bopp, Jr., Madison Center General Counsel, plans to give oral testimony on the FEC's proposed rules at a public hearing in Washington, DC, scheduled by the FEC for June 28-29, 2005. Mr. Bopp stated, "The history of the freedom of the press shows that it was a right for everyman, not just the institutionalized news media. The Internet permits ordinary people to realize that freedom by publishing their thoughts on political issues, just like the founding fathers did in the Federalist Papers. Only now publication happens instantaneously, at almost no cost, and it can reach millions around the globe."

The Madison Center's comments are available in .pdf format under the "Campaign Finance Reform" link in the menu on the Madison Center's website at www.jamesmadisoncenter.org. The FEC's notice of proposed rulemaking is available on the FEC's website at http://www.fec.gov/pdf/nprm/internet_comm/notice_2005-10.pdf.

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