[House Report 109-389]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-389
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ONLINE FREEDOM OF SPEECH ACT
_______
March 13, 2006.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Ehlers, from the Committee on House Administration, submitted the
following
R E P O R T
[To accompany H.R. 1606]
[Including cost estimate of the Congressional Budget Office]
The Committee on House Administration, to whom was referred
the bill (H.R. 1606) to amend the Federal Election Campaign Act
of 1971 to exclude communications over the Internet from the
definition of public communication, having considered the same,
report favorably thereon without amendment and recommend that
the bill do pass.
Purpose of the Legislation
H.R. 1606 would exempt communications made over the
Internet from the definition of a ``public communication'' in
the Bipartisan Campaign Reform Act (``BCRA'') (Public Law 107-
155). The purpose of this legislation is to ensure the Internet
can continue to grow and continue to be a free and positive
force in our political system. H.R. 1606 would allow bloggers
and other online activists to express their view on the
Internet without having to fear they might run afoul of our
campaign finance laws.
Background and Need for Legislation
After BCRA passed in 2002, the Federal Election Commission
(``FEC'') was required to develop regulations to implement the
Act. The Commission determined that Congress did not intend for
BCRA to cover Internet communications and, therefore, adopted
regulations that exempted them.
Congressmen Christopher Shays (R-CT) and Marty Meehan (D-
MA), concerned about this and other post-BCRA regulations
adopted by the FEC, sued the Commission. The suit argued that
the FEC regulations did not follow Congress' intent in enacting
BCRA. Over a year ago, U.S. District Judge Colleen Kollar-
Kotelly agreed with Messrs. Shays and Meehan, and ordered the
FEC to rewrite many of its rules, including the rule exempting
Internet communications from regulation.\1\
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\1\ Shays v. FEC, 337 F.Supp 2d 28 (2004). Judge Kollar-Kotelly of
the DC District Court struck down 15 of the 19 regulations challenged
by Shays and Meehan.
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A new FEC rulemaking to cover the Internet began in March
2005, and the Commission has scheduled a meeting to vote on
these new rules on March 16, 2006. Unless Congress acts quickly
to prevent it, the FEC will be required to issue a new
regulation to cover Internet communications.
Historically, Congress has regulated political speech only
where it has the potential to cause corruption or the
appearance of the corruption. There has been no demonstration
that the growth of the Internet has had a corruptive influence
on politics. There is, however, ample evidence that the
Internet has had a positive, democratizing effect on our
system.
The Internet has had a positive influence on our politics
and engaged thousands of people as never before. It has allowed
individuals of limited means to become involved in the
political process because, unlike other forms of media such as
television and radio, there are few barriers to entry. The
Internet allows for communication with millions of people for
little or no cost. Imposing regulations would stifle this
activity.
The Internet achieves through technology what BCRA seeks to
achieve by law. It levels the playing field, empowers ordinary
citizens, minimizes the influence of wealth and enhances the
voice of those of lesser means. Imposition of a regulatory
scheme on this medium will stifle this activity and discourage
participation, thereby enhancing theinfluence of the wealthy
and connected, contrary to the stated purpose of our campaign finance
laws.
The chilling effect of a regulatory scheme would be
exacerbated by its arbitrariness--for example, the FEC trying
to determine on a case-by-case basis which bloggers should be
considered ``news'' organizations and be granted a media
exemption and be taken out of the realm of regulated
organizations, and which should not. This arbitrariness would
negatively impact bloggers in particular because their sites
often meld news and advocacy.
Instead of constantly drawing arbitrary lines and hard to
follow rules for Internet activists to abide by, the FEC should
just leave the Internet alone. H.R. 1606 would tell the FEC
that it was right the first time--the Internet should be left
alone to flourish and not be burdened by regulation.
Those who favor regulation, the so-called ``reform
community,'' believe that Internet speech must be regulated in
the same manner as all other speech, lest we create a
``loophole'' that will allow people to evade BCRA. They are not
deterred by the fact that none of the grim scenarios they
predict will ensue have been seen in the past four years. The
2004 election was conducted with the rule H.R. 1606 would
codify in place, and none of the ill effects predicted were
seen.
While there has been no evidence of corruption resulting
from the Internet exemption there has been ample evidence of
the positive effects of a deregulated Internet. There was 42%
growth from 2000 to 2004 in the number of people using the
Internet to research candidates' issues positions.\2\ About 44%
of online political activists have not been politically
involved in the past in typical ways--they have not previously
worked for a campaign, made a campaign donation or attended a
campaign event.\3\ Technorati, a popular blog search engine, is
now tracking 30.4 million blogs and reports that every day,
70,000 new blogs are created.\4\
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\2\ Lee Ranie, Michael Cornfield, and John Horrigan, ``The Internet
and Campaign 2004,'' Pew Internet and American Life Project, March 6,
2005 at iv.
\3\ As of February 2004. See ``Political Influentials Online in the
2004 Presidential Campaign,'' Institute for Politics, Democracy & the
Internet, Graduate School of Political Management, George Washington
University, February 5, 2004 at 5.
\4\ As of March 13, 2006. See http://www.technorati.com/about/.
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H.R. 1606 would make sure bloggers do not have to check
with a federal agency before they go online. It would protect
bloggers from being forced to constantly read FEC advisory
opinions, or to hire federal election lawyers to make sure what
they are doing is legal. This bill would allow bloggers to
express their views on politics and politicians without having
to worry about running afoul of federal election laws.
Summary of the Legislation
Section 1.--Short title: the ``Online Freedom of Speech Act''
Section 2.--Modification of definition of public communication
--Excludes communications made over the Internet from being
considered ``public communications.''
Under current law, a regulated ``federal election
activity'' includes ``public communications,'' such as
broadcast, cable, satellite, or newspaper communication to the
general public. In October 2002, the Federal Election
Commission promulgated regulations to exempt communications
over the Internet from the definition of ``public
communications.'' H.R. 1606 would amend federal law to codify
the current exemption of Internet communications from the
definition of public communications.
COMMITTEE CONSIDERATION OF THE LEGISLATION
Introduction and Referral
On April 13, 2005, Mr. Hensarling introduced H.R. 1606, the
``Online Freedom of Speech Act,'' which was referred to the
Committee on House Administration.
Hearings
The Committee on House Administration held a hearing on
H.R. 1606 on September 22, 2005.
Members present: Mr. Ney, Mr. Ehlers, Ms. Miller, Ms.
Millender-McDonald, and Ms. Lofgren.
Witnesses: The Honorable Scott E. Thomas, Chairman, FEC;
The Honorable Michael E. Toner, Vice Chairman, FEC; The
Honorable Ellen L. Weintraub, Commissioner, FEC; Michael
Krempasky, blogger, RedState.org; Duncan Black, blogger,
Eschaton; Bradley Smith, Professor, Capital University Law
School; Lawrence Noble, Executive Director, Center for
Responsive Politics; and Karl Sandstrom, Of Counsel, Perkins
Coie LLP.
Markup
On March 9, 2006, the Committee met to mark up H.R. 1606.
Members Present: Mr. Ehlers, Mr. Mica, Mr. Reynolds, Ms.
Miller, Ms. Millender-McDonald, Mr. Brady, Ms. Lofgren.
The Committee favorably reported H.R. 1606, by a voice
vote, a quorum being present.
MATTERS REQUIRED UNDER THE RULES OF THE HOUSE
Committee Record Votes
Clause 3(b) of House rule XIII requires the results of each
record vote on an amendment or motion to report, together with
the names of those voting for and against, to be printed in the
committee report.
The Committee voted to favorably report H.R. 1606. The vote
to report favorably was approved by a voice vote.
Committee Oversight Findings
In compliance with clause 3(c)(1) rule XIII of the Rules of
the House of Representatives, the Committee states that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
House of Representatives, are incorporated in the descriptive
portions of this report.
General Performance Goals and Objectives
The Committee states, with respect to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, that
the goal and objective of H.R. 1606 is to ensure the Internet
can continue to grow and continue to be a free and positive
force in the political system. H.R. 1606 will allow bloggers
and other online activists to express their view on the
Internet without fear of running afoul of campaign finance
laws.
Constitutional Authority
In compliance with clause 3(c)(1) of rule XIII, the
Committee states that Article 1, Section 4 of the U.S.
Constitution grants Congress the authority to make law
governing the time, place and manner of holding Federal
elections.
Federal Mandates
The Committee states, with respect to section 423 of the
Congressional Budget Act of 1974, that the bill does not
include any significant federal mandate.
Preemption Clarification
Section 423 of the Congressional Budget Act of 1974
requires the report of any committee on a bill or joint
resolution to include a committee statement on the extent to
which the bill or joint resolution is intended to preempt state
or local law. The Committee states that H.R. 1606 does not
preempt any state or local law.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, the following estimate and comparison
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 10, 2006.
Hon. Vernon J. Ehlers,
Chairman, Committee on House Administration,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1606, the Online
Freedom of Speech Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Donald B. Marron,
Acting Director.
Enclosure.
H.R. 1606--Online Freedom of Speech Act
CBO estimates that enacting H.R. 1606 would have no
significant impact on the federal budget. Enacting the bill
would not affect direct spending or revenues. H.R. 1606
contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act and would not
affect the budgets of state, local, or tribal governments.
Under the Federal Election Campaign Act, a regulated
``federal election activity'' includes ``public
communications,'' such as broadcast, cable, satellite, or
newspaper communication to the general public. In October 2002,
the Federal Election Commission promulgated regulations to
exempt communications over the Internet from the definition of
``public communications.'' H.R. 1606 would amend federal law to
codify the current exemption of Internet communications from
the definition of public communications. Because the
legislation would not change any current policy or practice,
CBO estimates that implementing H.R. 1606 would have no
significant impact on the budget.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by Peter H. Fontaine,
Deputy Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
FEDERAL ELECTION CAMPAIGN ACT OF 1971
TITLE III--DISCLOSURE OF FEDERAL CAMPAIGN FUNDS DEFINITIONS
Sec. 301. When used in this Act:
(1) * * *
* * * * * * *
(22) Public communication.--The term ``public
communication'' means a communication by means of any
broadcast, cable, or satellite communication,
newspaper, magazine, outdoor advertising facility, mass
mailing, or telephone bank to the general public, or
any other form of general public political advertising.
Such term shall not include communications over the
Internet.
* * * * * * *