The House of Representatives is expected to vote today on the Online Freedom of Speech Act (H.R. 1606) introduced by Jeb Hensarling (R-TX). The bill alters federal election law to exclude Internet communications from the definition of “public communication.” In practice, the Online Freedom of Speech Act will complicate if not prevent government control over the Internet through campaign finance law.
Advocates say campaign finance restrictions are necessary to prevent corruption of government. They add that the Internet may offer a way around existing campaign finance restrictions, in their parlance a “loophole” that must be closed by Congress or the Federal Election Commission.
In truth restrictions on campaign finance have little to do with corruption but serve well as limits on electoral competition. After all, if members of Congress can make it harder to raise money to fund challengers, fewer challengers will end up running for office and fewer incumbents will lose their bids for re‐election.
In particular, money in politics funds new technologies that make it easier to challenge the political status quo. For example, in 1968, three candidates for the presidency — Eugene McCarthy, George Wallace, and Richard Nixon — spent significant sums on television advertising. It was the first time television had played such an important role throughout a presidential election.
Those three candidates’ spending shook the status quo. McCarthy’s showing in the New Hampshire primary drove the incumbent president Lyndon Johnson out of the race. George Wallace ran well in the Democratic party primaries and ultimately led one of the most successful third party bid for the presidency. Nixon narrowly won the presidency by spending big on television. No one needed to be told that the new technology of television could upend the electoral status quo in Congress too.
In early 1969, Congress began considering campaign finance laws directed primarily at broadcast spending. Two years later Congress passed spending limits on television ads, limits that directly sought to head off challenges similar to the 1968 efforts. The TV monster had been tamed, as one member of Congress put it.
History now seems ready to repeat itself. A new technology — the Internet — made an impact in 2004. Howard Dean used the new technology to raise money quickly and challenge the more established Democratic candidates. The eventual Democratic candidate, John Kerry, used the medium to raise record sums and mount a successful effort against a sitting president. The Internet also fostered new entries into the political marketplace of ideas, new voices that threatened the political status quo. Bloggers of all political stripes assessed and assailed their candidates and causes of choice. Their criticisms of CBS News and its faulty reporting on President Bush’s National Guard service ultimately drove Dan Rather from office.
Absent affirmative protections for free speech, it seems inevitable that campaign finance laws will once again be used to control and neuter a technology that threatens the political status quo. The danger to free speech is real and requires action.
Considerations of political interest support free speech in this case. Neither of the major parties has a clear advantage in fundraising through the Internet. Hence, neither party will gain an advantage by restricting political speech or fundraising on the Internet. (In fact, Sen. Harry Reid (D-NV) has introduced a companion bill to the Online Freedom of Speech Act in the U.S. Senate). Bloggers articulate liberalism, conservatism and all views in between. Suppressing Internet speech will not offer anyone a clear advantage in the struggle of ideas.
Finally, as Rep. Hensarling’s bill suggests, not every member of Congress sees campaign finance restrictions as a good way to make life easier come election time. Some are willing to stand up for the First Amendment. This time their courage should be strengthened by the popularity of the Internet. Americans love the new medium and correctly expect they have a right to use the Internet for whatever political activities they might undertake. The question remains whether enough members of Congress will vote for what the Constitution demands and their constituents desire.