This is one of my favorite laws, and I take it very seriously.
Our history with it, of course, is imperfect. If you think the government is restricting free speech today you should look back into history a bit. Consider the role of the Committee on Public Information, which administered strict but “voluntary” press censorship during World War I.
Ive always thought that political speech is good and that more is better, but ever since we started, in the post-Watergate era, to restrict it, many assume that political speech is somehow a corrupt thing, especially if money is spent in order to engage in it.
Now we hear that a “loophole” in electoral law will likely lead to a deluge of political spam this coming election season, according to the Washington Post, which mostly cites political consultants, including Advocacy Inc., a K Street political consulting firm specializing in “developing Internet and e-mail broadcast solutions for candidate and issue advocacy campaigns and elected officials.” Also cited was Max Fose of Integrated Web Strategy which works with clients to build e-mail lists and campaigns to use them.
The “loophole” arises out of the fact that the FEC voted unanimously in March to exempt political communication on the Internet, including blogs, e-mail and Web sites, from regulation. This exemption extends not just to spending limits, but to reporting as well.
In other words, you can spend millions on Internet campaigning and not even have to report what youre spending and on whom. Thank goodness for John McCain, co-author of the the McCain-Feingold Bill that did away with “soft money” (and a client of Integrated Web Strategy, according to IWS Web site).
In fact, the FEC rules arent entirely laissez-faire, only effectively so. For instance, politically focused e-mails sent to fewer than 500 addresses at a time are not subject to reporting requirements. Wow, I wonder how theyll get around that one. Bloggers who dont take paid political ads are also not covered.
The political consultants are saying that the absence of regulation will lead candidates (and, I assume, advocacy organizations with dollars to spend) to blow out advertising at full speed on the Internet, and especially through e-mail. The article doesnt address whether such campaigns are subject to other laws, such as CAN-SPAM, but I would assume that they are.
Whether this means that violations would be enforced or that the consultants are concerned with such violations is another matter.
Negative Speech Is Still
Should you fear political spam? It depends on what you think “spam” is. Id say that fair enforcement of CAN-SPAM doesnt have to infringe on free speech.
A prohibition on scraping e-mail addresses from Web sites, for example, is not the same as a prohibition on speech. Requiring lists to honor opt-out requests is not the same as saying they cant spend more than $X on campaigning.
Unsurprisingly, a certain amount of cynicism is in order here. Part of the point of this planted story is to market these consultants services. Why would they want to be quoted in a story that essentially creates a scare about their own businesses? To get the message out to potential clients that theyd better get in on it before their opponents overwhelm them with successful Internet marketing.
Im second to nobody when it comes to cynicism and skepticism. If I were in this business, the first thing I would tell my clients is that theres definitely a role for e-mail marketing of their campaigns, but the real payoff will come with negative Internet advertising.
People dont like spam. Even novices will become annoyed if they are deluged with political messages, and dozens of “Vote for Bob Forehead” e-mails will do no good for the image of the candidate. But dozens of “Bob Forehead is buying drugs with public money” e-mails will have an effect that Forehead will find difficult to combat. Even if people dont like the e-mails and find them distasteful, even untrustworthy, they wont come away feeling good about Bob.
We just finished a primary for Democratic nomination for township committee in my town (this is effectively the real election, since Republicans are politically insignificant here). The most memorable feature of the election was a cheap negative ad widely mailed out. It was badly received in public discourse, but one of the candidates who sent it came within 29 votes of wining. Its impossible to read peoples minds to discern the impact the ad had, but in retrospect I think sending the ad didnt hurt; those candidates lost for other reasons.
And the sort of negative Internet advertising this article implies to me will be more likely to have an effect. Our negative ad was labeled as being from the opposing candidates, but its not necessary to do that. In fact, the candidate need not be directly involved when an independent, concerned group of citizens can send out the messages themselves.
All this is fine with me. As I said, political speech is good and more political speech is better. The FEC was right to exempt political speech from regulation and Congress was wrong to regulate it in other media. If you dont like free political speech in your e-mail, then either take steps to filter it or grin and bear it. You live in a free society and it comes with the territory. As Hugo Black once said, when interpreting the First Amendment, “No law means no law.”
Security Center Editor Larry Seltzer has worked in and written about the computer industry since 1983. He can be reached at [email protected]