Staff Writer, CNET News.com
When it comes to pushing harsh political attack ads, election campaign managers are discovering that few other media compare to the Web.
For example, thanks to changes in campaign law that have largely taken effect this year, candidates do not have to endorse their own Internet spots—something that's mandated in radio and television under a measure known as the "stand by your ad" requirement.
The exemption is one of several campaign loopholes carved out for the Internet that are contributing to a surge in blistering Web ads from both Republicans and Democrats that would be illegal almost anywhere else, election experts said.
"The FEC has sought to give the Internet a pass," said Paul Sanford, a former Federal Elections Commission attorney now at the Center for Responsive Politics (CFRP), a nonpartisan election-finance watchdog. "They've sort of sought to establish this free-fire zone."
In other elections, the legal chasm between online and offline campaigning has not been as vast. But the enactment of the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold law, has created a virtual double standard.
For example, voters won't likely be exposed on radio or television to a video advertisement running this week on the campaign Web site of President George W. Bush and Vice President Dick Cheney. The spot highlights Sen. John Kerry's votes to curb military spending and cautions viewers that the Democratic presidential candidate "repeatedly opposed weapons vital to winning the war on terror."
Under the 2002 changes to election law, any televised version of the Bush-Cheney "Weapons" ad would have to be revised to include either a "full screen" video of Bush endorsing the video or a photograph combined with a Bush voice-over saying the same thing. Radio ads have similar rules, but online ads do not. The Bush campaign did not respond to requests for comment.
This double standard is drawing scrutiny from Congress. On Thursday, senators Ron Wyden, D-Ore., and Lindsey Graham, R-S.C., introduced a bill to amend current law and require explicit candidate endorsements embedded in any advertisement "which is transmitted through the Internet.""Internet campaigning looks like the Wild West," Wyden said in a telephone interview. "You go in, you sling your mud, hit below the belt, and get the heck out of Dodge before anybody knows who did the dirty deeds. I think people are going to do more of this, because the Net is where the accountability rules don't apply yet." In addition to waiving the stand-by-your-ad requirement, current law allows state political parties to use unregulated cash donated by unions or corporations, known as "soft money," to pay for Internet advertising to help out candidates for federal office.
Banning soft money was a major objective of the McCain-Feingold law. It said national political parties can't solicit or spend soft money, but it imposed fewer restrictions on state political parties. It also slapped new limits on so-called "issue advertisements" that refer to candidates for federal office and air on cable, broadcast or satellite in the months leading up to an election.
Another potentially huge exemption lets advocacy groups or rich individuals coordinate an online media campaign with a political campaign without having it count as a contribution—something that's flatly not permitted in other media like radio, television, newspapers, direct mail and billboards.
An unfair double standard?
To be sure, online advertising is likely to represent only a sliver of the estimated $1.25 billion that will be spent on political ads in 2004. "Obviously our top-tier races will be on TV, cable and broadcast, and definitely radio," said Cara Morris, deputy communications director for the (DSCC).
But FEC critics say that the fast-growing world of online advertising should not remain immune from campaign finance laws. "I don't see how you can give the Internet a carte blanche pass," said CFRP's Sanford. "This is a sleeping giant in some ways. People talk about a tipping point. I think we're at or just past the point where the Internet has reached its tipping point in terms of relevance."
This year's race is the first in which the Internet enjoys such a commanding regulatory advantage. In previous elections, the 2002 campaign finance law—drafted at a time when most Americans were hobbled with dial-up connections and rich media seemed far in the future—was not in effect. Since then, the controversial law was in limbo until the Supreme Court upheld it in December 2003 against challenges from a broad coalition of advocacy groups including the American Civil Liberties Union (ACLU) and the National Rifle Association.
Early signs suggest that candidates are moving to take advantage of the relative freedom of the Internet. The result: more negative campaigning than in the offline race.In late March, the Republican National Committee ran ads on more than 1,000 Web sites assailing Kerry for voting against reconstruction spending for Iraq. Kerry's campaign has taken similar steps, putting video ads on the Web that criticize Bush more aggressively than those airing on television. A Kerry Web ad called "Very First Bush Budget" depicts Bush as a schoolchild—and includes no video endorsement by the candidate.
In other sparring, the Michigan Republican Party mocks Democratic Gov. Jennifer Granholm in an animated ad, while the of its Democratic counterpart urges visitors to "click here" to see an anti-Bush ad titled "Mission Not Accomplished."
The Internet's magic window
Right now, not all of the Internet's advantages are in effect. That's because some of regulations in the 2002 law deal with advocacy ads that kick in 30 days before a political convention and 60 days before the general election. The Democratic Party's Boston convention begins in late July, so the effective date for those sections would be June 26. Other sections relating to primaries or dealing with expenditures "coordinated" with political parties—with a 120-day effective date—are already in place.
The DSCC's Morris said about the Democratic senatorial candidates, "I would think that some of them would take advantage of the additional Internet opportunities" later this year.
In general, the 2002 law says that advocacy groups can't pay for "electioneering communications," which are radio or TV ads that refer to a politician running for federal office and take place during those 30-day or 60-day windows. During its unsuccessful attempt to overturn the law, the ACLU argued that the restriction bans "any broadcast communication paid for by the ACLU which can be deemed one that promotes or supports or attacks or opposes a candidate for federal office" during those 30-day or 60-day windows.
"Until you get to that point, it doesn't really matter if you use the Internet, because you may be exempt," CFRP's Sanford said. Afterward, though, "we may start seeing different strategies. We may see someone go from broadcast to the Internet to avoid the coordinated communication problem. By moving from broadcast to the Internet, it's no longer a coordinated communication" covered by the law.
The Internet's laissez-faire treatment is no accident. Soon after Bush signed the Bipartisan Campaign Reform Act on March 27, 2002, the FEC began its usual process of describing exactly how the law would work in practice. One ambiguity was Congress' definition of "public communication," which said it was 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."
The big question: Was Web advertising swept in by the phrase "general public?" In a ruling four months later, the FEC answered that it was not. "Unlike media such as television and radio, where the constraints of the medium make access financially prohibitive for the general population, the Internet is by definition a bastion of free political speech, where any individual has access to almost limitless political expression with minimal cost," the FEC concluded.
"Obviously if Congress were to change the law, the commission would change its regulations accordingly," said FEC spokesman George Smaragdis.
That could still happen. When the FEC was trying to figure out what to do in mid-2002, prominent members of Congress—including senators John McCain, R-Ariz., and Russ Feingold, D-Wis.—unsuccessfully lobbied the commission to regulate the Internet as well.
The FEC has not left the Internet completely untouched. A July 2002 ruling from the FEC dealing with Reform Party candidate Pat Buchanan's campaign said that e-mail and Web site fund-raising entreaties must, under existing federal law, include "paid for by" disclosures.