The Federal Election Commission, which hasn’t updated internet regulations significantly since 2006, is eyeing new rules that a key member has warned will crush online political speech.
“If adopted, this proposed final rule would be the biggest expansion of FEC regulation over the internet in decades,” Republican Commissioner Sean Cooksey warned.
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At issue is a plan to adopt disclaimer requirements for small digital advertisements, expanding full regulation to all online political messages “promoted” even when no money is involved.
For years, some members of the FEC have tried to crack down on internet messaging, defying the platform’s freewheeling nature. Republicans have seen the efforts over the past decade as regulatory overreach and a liberal bid to curb conservative messaging and even attack conservative media.
In his warning about the proposal, set for an FEC vote next month, Cooksey aligned with the GOP’s record of allowing free political speech on the internet by both sides.
“This regulation will scale back significant portions of the commission’s long standing exemption for political activity on the internet, which allows individuals and campaigns to engage freely and share their messages on websites, social media, mobile applications, and other platforms,” he said in a statement shared with Secrets.
“It will also impose burdensome and confusing new disclaimer requirements on candidates, political groups, and internet users who work with them to campaign, organize, and engage with voters online,” he added.
Former FEC Chairman Lee Goodman, who in 2014 first raised concerns about online freedom and liberal censorship of conservatives online, told us the new rule puts a spotlight on promoting online political messages, not just paying for them.
He added that the word “promoting” is not defined, giving the agency wide latitude to regulate. That could include simply groups asking staff to promote YouTube videos or other content, actions no government agency would consider regulating — until now.
Regulation of promoting costs could extend beyond disclaimers and force reporting of expenditures on YouTube videos, election experts said.
It could also put regulations on coordinated communications if a nonprofit organization reprints candidate information online or has any discussion with a candidate.
“The proposal could be read to expand the regulation of free online content if a nonprofit organization pays its own staff to disseminate or ‘promote’ the content. Think of a nonprofit organization that posts a political video for free on YouTube while its staff pushes the video out across the internet — all for free. This proposal might regulate that for the first time in history. The FEC needs to define what it means to promote a free YouTube video before adopting this proposal,” said Goodman, a longtime elections lawyer.
Another former FEC member, Brad Smith, agreed. He and David Keating, writing for the Institute for Free Speech, said the new rules are too vague and could end the use of internet influencers by campaigns.
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The duo also said the new rules and disclaimer requirements could mess up short ads. How, for example, would a disclaimer work on a four-second internet ad? The two called on the FEC to clean up the vagueness. “The potential costs to internet communications loom too large to make an unnecessary error,” they said.
In his statement, Cooksey said he would fight the change and warned that the agency has not given the public time to consider the impact.
“I am concerned that the commission is moving forward with this final rule with little notice to the regulated community and no meaningful opportunity for public comment. Without additional public input — and major revisions — I cannot support increasing government regulation over political speech online,” he said.
