Social Media and Independent Campaign Expenditures

State Rep. Tim O’Brien has created a blog post entitled State Elections Enforcement Commission FAIL in which starts:

The staff at the State Elections Enforcement Commission (SEEC) has just told me that they consider the use of this site and other social networking websites, like Facebook, to be campaign expenditures.

For the record, the SEEC staff are completely wrong.

He starts off by talking about the definition of campaign contributions and expenditures, noting that it costs nothing for him to post to his blog, or to Facebook. He notes that

The SEEC staff counter that the use of free internet services for the expression of political opinions are still regulated under campaign finance laws because, to access these websites, you still have to the use of your home computer and internet service, which both cost money.

The SEEC is wrong in this in a couple aspects. First, it is possible to post to websites from public computers such as those made available at public libraries. Beyond that, for those that might end up using their personal computers and internet service to post to websites, the cost is minimal. For example, if a person is paying $30/month for home Internet access and spends 5% of their time posting about campaigns, that is an ‘expenditure’ of $1.50 per month.

In fact, in federal elections, the FEC looked at this issue in 2006 and issued 11 CFR 100.155

The Commission proposed new rules to extend explicitly the existing individual activity exceptions to the Internet to remove any potential restrictions on the ability of individuals to use the Internet as a generally free or low-cost means of civic engagement and political advocacy.

In MUR 5853, they went on to state

Any individual who, without compensation, uses equipment and personal services related to Internet activities (including blogging and creating, maintaining, or hosting a website) for the purpose of influencing a Federal election does not make an expenditure under the Commission’s regulations.

It is also interesting to consider 11 CFR 100.73 which states:

Any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication is not a contribution unless the facility is owned or controlled by any political party, political committee, or candidate, in which case the costs for a news story: (a) That represents a bona fide news account communicated in a publication of general circulation or on a licensed broadcasting facility; and (b) That is part of a general pattern of campaign-related news accounts that give reasonably equal coverage to all opposing candidates in the circulation or listening area, is not a contribution.

In MUR 2928 the FEC held that “that the media exemption applies to media entities that cover or carry news stories, commentary and editorials on the Internet.” In this case, they were specifically focusing on a complaint about the website DailyKos. This gets to a particularly complicated issue of how campaign finance laws relate to freedom of the press.

It does become more complicated in a case like Rep. O’Brien, where he is a candidate. Yet according to Rep. O’Brien, he asked the SEEC

how this rule would affect people who are not candidates for office - the general public. Their answer is that using free internet services like Facebook to advocate in favor of or against a candidate would count as small "independent expenditures"

According to Rep. O’Brien the SEEC went on to suggest that “these might count as very small ‘independent expenditures’ that would not require attribution and legal reporting”. The question becomes, how do the approximately 1.2 million Facebook users in Connecticut determine whether or not their liking a comment by their State Representative constitutes an independent expenditure that does require attribution and legal reporting? A traditional response is that it is better to be safe than sorry and to attribute and report. However, I suspect that the SEEC is unprepared for hundreds of thousands of reports of independent expenditures as well as the issue of whether or not a member of the family of a state contractor can ‘like’ a comment by a State Representative on Facebook.

I believe it is in the State and the SEEC’s best interest to rethink their positions on what people can and cannot say online. As a final note, I am the spouse of a lobbyist. As I understand current campaign finance laws, I am prohibited from making independent expenditures. Yet as a journalist, I am protected by the First Amendment. This post was not paid for by anyone and is not intended to advocate for Rep. O’Brien or any other candidate.

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