EFF: Bloggers' FAQ: Election Law

The Bloggers' FAQ on Election Law addresses the legal issues regarding blogging about political campaigns.
Is it true that new rules limit how I can blog about politics?

No, but some very narrow restrictions regarding online political advertisements were recently passed. As a result of a federal district court ruling in the fall of 2004, the Federal Election Commission (FEC) was forced to reconsider how it implemented federal election laws regarding behavior on the Internet. When an FEC commissioner implied that new regulations could strongly impact the online community, bloggers took notice. After intense criticism from bloggers and First Amendment activists, the FEC in March of 2005 issued a series of relatively weak new proposed regulations that would place some limited new restrictions on blogging and other communications on the Internet. The final regulations, published in the Federal Register on April 12, 2006, were largely limited to online political advertising.

What did the FEC's (previous) 2002 regulations do?

In 2002, the FEC promulgated regulations designed to implement new provisions of the Federal Election Campaign Act, as amended by the Bipartisan Campaign Reform Act of 2002. The FEC's 2002 regulations sought to shield online activities from campaign finance oversight. To that end, "public communications" and "generic campaign activity" were defined to exempt most Internet communications from coverage, as were regulations regarding coordinated activities with candidates and political parties.

What did the district court ruling on the FEC regulations do?

In Shays v. FEC, issued on September 18, 2004, the DC federal district court struck down several portions of the 2004 regulations. The court found that the exclusion of all Internet communications from "public communications" and "generic campaign activity" conflicted with the statute that cast a broader regulatory net. Similarly, the court struck down exemptions for coordinated Internet-based political activities.

What do the new FEC regulations do?

The FEC's new regulations were to designed to fill the holes found by the Shays court. Primarily, the new FEC rules place restrictions on paid Internet political advertisements: paid political advertisements are now subject to campaign spending limits and other restrictions on candidates. In addition, paid political advertisements are required to carry disclaimers, informing readers that ads were paid for by a party or candidate. Other proposed regulations, such as disclosures for "political spam" and for blogging funded by federal candidates, were rejected. Bloggers wishing to promote one candidate or criticize another without compensation can continue to do so without any new restraints. Even bloggers who are paid by a candidate, party, or political action committee (PAC) to promote a candidate or cause - in non-advertisement form - are not be required to disclose this fact themselves. (The candidate or party, however, would.)

Also of interest to bloggers is the FEC's explicit extension of the "press exemption" to online activities. In the new regulations, the FEC has explicitly stated for the first time that costs incurred by online speakers in the course of covering political candidates, issues, or events do not ordinarily constitute "expenditures" or "contributions" under campaign finance rules.

Do the new proposed regulations seek to make any other changes of interest to bloggers?

Yes. The FEC is additionally seeking comments regarding the precise scope of the "press exemption," regulatory recognition that costs incurred by the news media in the course of covering political candidates, issues, or events do not constitute "expenditures" or "contributions" under campaign finance rules. The FEC is considering whether or not to amend existing regulations to specifically indicate that media activities that otherwise would be entitled to the statutory exemption are likewise exempt when they take place over the Internet.

When do these regulations go into effect?

May 12, 2006, 30 days after publication in the Federal Register.

EFF: Breaking News

EFF Battles to Save Critical Ohio E-Voting Case

Court Fight Continues As Princeton Researchers Demonstrate 'Vote Stealing'

San Francisco - The Electronic Frontier Foundation (EFF) has asked the 6th U.S. Circuit Court of Appeals to reject Ohio's latest attempt to dismiss a critical electronic voting case -- the final legal hurdle in the path to a thorough investigation of the state's widely criticized 2004 election and much needed reform.

"Ohio's procedures, like many used elsewhere across the country, simply don't do enough to protect voters from the serious vulnerabilities in the current generation of electronic voting equipment," said EFF Staff Attorney Matt Zimmerman. "It's time to let this important case go forward so that these critical problems can finally be resolved."

Last fall, EFF filed suit on behalf of voter Jeanne White against Ohio Secretary of State J. Kenneth Blackwell and Governor Bob Taft, alleging that they had abdicated their responsibilities to protect the fundamental right to vote of Ohio residents. When White voted on Election Day in 2004, the electronic voting machine she used malfunctioned, causing her vote to toggle from one candidate to another. White's problems were not isolated: other voters reported unacceptably long lines, inadequately trained pollworkers, and voting machines that failed to record their votes correctly. Similar problems were reported in the 2005 elections and in the May 2, 2006, primary, including a chaotic election in Cuyahoga County where election officials have launched a formal investigation.

In its brief, EFF argues that the widespread and deeply rooted failings in Ohio's voting system stem from incoherent and inadequate procedures, inconsistent standards, and lack of planning and training -- all of which raise serious questions about the basic fairness of the state's elections. The suit aims to require the state to dramatically increase the security and accuracy of its voting technology and related election procedures.

"The state claims that its election system merely exhibits 'garden variety' problems and that the blame for those should rest on pollworkers and other officials," said Zimmerman. "The governor and secretary of state of Ohio, however, have the ultimate duty of protecting citizens' fundamental right to vote. Instead of trying to avoid responsibility for a system in crisis, these officials need to step up to their responsibilities."

The lawsuit will also provide the best chance yet to demonstrate the true "in the field" performance record of electronic voting equipment, details of which are carefully controlled by election officials and voting equipment vendors. EFF's brief was filed on the same day that researchers at Princeton University released a critical new report demonstrating the ability to manipulate results on a Diebold electronic voting machine. The study, led by Professor Edward W. Felten, found that the machine was extremely vulnerable to "vote-stealing" attacks that would undermine the accuracy of vote counts.

EFF is working with co-counsel Kerger and Associates; Zuckerman, Spaeder, Goldstein, Taylor & Kolker; and Heller, Ehrman, White and McAuliffe, LLP, as it pursues this case.

For the full appellate brief:
http://www.eff.org/Activism/E-voting/ohio/intervenorsappellatebrief.pdf

For more on the Ohio suit:
http://www.eff.org/Activism/E-voting/ohio/

For more on the Professor Felten's research:
http://www.businessweek.com/ap/tech/D8K48IU80.htm