Fans of the deluge of political advertising that always occurs around election time may have something extra to look forward to: spam from your elected representatives and those looking to replace them, courtesy of the Federal Election Commission (FEC) and a decision by the District Court of the District of Columbia.
The source of contention is the Bipartisan Campaign Reform Act of 2002 (PDF), known more commonly by the slightly less-hefty moniker of McCain-Feingold. McCain-Feingold was enacted to control how and how much money could be donated and spent on political campaigns. In so doing, the Act regulated certain activities, among them, so-called "public communication," which it defines as:
"…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."
Sharp readers will note a rather spectacular omission from that list: the Internet.
The question arises as to whether Congress meant to specifically exclude the Internet from election reform, or if its direct omission merely makes it fall to the phrase "general public political advertising." According to the District Court, it’s the former, although certain forms of spending such as buying ads on web sites can still be regulated. From a logical standpoint, this makes a degree of sense, since the law was written in 2002—not 1992—making it likely that the omission of the Internet from that section of McCain-Feingold something of a convenient oversight at best.
The FEC, amid the reluctance (PDF) of some members, backed the court’s decision with a similar one of its own. Interestingly, the reluctance on the part of the FEC was not due to the fact that the court decided to exclude the Internet from regulation, but the fact that the court included web advertising on its list of controlled substances. In essence, the FEC rubber-stamped the court outcome because it had no choice, with the net result that we can almost certainly look forward to plenty of political spam as the elections become more contentious.
Unfortunately for us, there is something to be said for the court’s decision on this matter. The Internet has become something of a force for democracy over the last several years. Much as one might have taken to a soapbox in the public square years ago, the ‘Net has become a haven for anyone with an axe to grind or a point to make. As opinions go, there is certainly plenty of chaff among the wheat out there, but nothing can be more democratic than everyone being given a chance to engage in free discourse.
While the Internet has given people that chance, it has also begun to blur the lines between personal opinions, grass roots movements, political organizations, and outright fundraising and promotion. Should Congress ever decide to genuinely limit how political discourse can be engaged in on the ‘Net, it will be faced with the difficult task of defining just what actions are regulated. It may be relatively simple to define the difference between two friends e-mailing political commentary to each other and a mass e-mail campaign funded by a major party, but there exists plenty of grey area between those extremes. Regulation means that someone may be prevented from fairly expressing their beliefs, and it is arguable that freedom of speech is our single most important right.
In short, we probably need to brace ourselves for the onslaught of political ads. The good news is that—unlike the ads for pharmaceuticals, home mortgages, and Nigerian bankers that fill our inboxes—we have the ability to do something about this. I’ve already made it a habit to look with suspicion upon any candidate who believes it helpful to call my house and leave recorded messages on my answering machine. It doesn’t take much to extend that concept to the candidate that bogs down my e-mail account. Perhaps a drop of a few points in the polls after each spam campaign will be enough to curb most candidates’ enthusiasm for the concept.