[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
                          MARKUP OF H.R. 1606,
                      ONLINE FREEDOM OF SPEECH ACT

=======================================================================

                                 MARKUP

                               before the

                   COMMITTEE ON HOUSE ADMINISTRATION
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

              HEARING HELD IN WASHINGTON, DC MARCH 9, 2006

                               __________

      Printed for the use of the Committee on House Administration



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                   COMMITTEE ON HOUSE ADMINISTRATION

                  VERNON J. EHLERS, Michigan, Chairman
ROBERT W. NEY, Ohio                  JUANITA MILLENDER-McDONALD, 
JOHN L. MICA, Florida                    California,
CANDICE MILLER, Michigan               Ranking Minority Member
JOHN T. DOOLITTLE, California        ROBERT A. BRADY, Pennsylvania
THOMAS M. REYNOLDS, New York         ZOE LOFGREN, California

                           Professional Staff

                      Will Plaster, Staff Director
                 George Shevlin Minority Staff Director


           MARKUP OF H.R. 1606, ONLINE FREEDOM OF SPEECH ACT

                              ----------                              


                        THURSDAY, MARCH 9, 2006

                          House of Representatives,
                         Committee on House Administration,
                                                    Washington, DC.
    The committee met, pursuant to call, at 10:05 a.m., in room 
1310, Longworth House Office Building, Hon. Vernon J. Ehlers 
(chairman of the committee) presiding.
    Present: Representatives Ehlers, Mica, Reynolds, Miller, 
Millender-McDonald, Brady and Lofgren.
    Staff Present: Jeff Janas, Professional Staff Member; Paul 
Vinovich, Staff Director; Audrey Perry, Counsel; Tom Hicks, 
Minority Professional Staff Member; George F. Shevlin, Minority 
Staff Director; Janelle Hu; Denise Mixon; David Thomas, Chief 
of Staff for Ms. Lofgren; and Teri Morgan, Legislative Director 
for Mr. Brady.
    The Chairman. Good morning. The committee is now in order 
for the purpose of consideration of H.R. 1606, the Online 
Freedom of Speech Act of 2005.
    I am pleased to welcome the audience and those interested 
parties who are present. I have also been told that there is a 
live blogger present. I think this may be only the first or 
second time that a committee hearing has been blogged. I can't 
imagine anyone finding that interesting reading, but so be it. 
I was told there was a live blogger, and my immediate response 
was that is certainly a lot better than a dead blogger. So we 
welcome, all of you, whether alive or blogging or not.
    The bill that is before us exempts communications made over 
the Internet from the definition of a public communication in 
the Bipartisan Campaign Reform Act, better known as BCRA. It 
would allow bloggers and other online activists to express 
their views on the Internet without fear of running afoul of 
our campaign finance laws.
    I would like to start with a little background on the 
subject of the regulation of online politics and this bill so 
that those listening know where we are in the process and what 
is at stake.
    After BCRA passed in 2002, the Federal Elections Commission 
was required to develop regulations to implement the act. The 
Commission determined that Congress did not intend for BCRA to 
cover Internet communications, and I think they concluded that 
rightfully. And, therefore, they adopted regulations that 
exempted Internet communications.
    Two of our colleagues, the authors of the BCRA bill, 
Congressman Shays and Congressman Meehan, felt the FEC 
regulations did not follow the intent of BCRA, so they sued the 
Commission over this and several other rules. They won that 
suit so the Federal Elections Commission was required by court 
order to rewrite the rules.
    A new rule to cover the Internet began in March of last 
year, in 2005, and the FEC is scheduled to vote on these new 
rules this coming Thursday, March 16th. Unless Congress acts 
quickly to prevent it, the FEC will be required by court order 
to issue a new regulation to cover Internet communications.
    On September 22, 2005, this Committee held a hearing on the 
regulation of political speech on the Internet. At the hearing, 
Committee Members heard testimony from bloggers, FEC 
Commissioners, and election law experts. Both the liberal and 
conservative bloggers have expressed their support for 
exempting the Internet from FEC regulation.
    On November 2, 2005, H.R. 1606 was placed on the suspension 
calendar and voted upon. Although the majority of the Members 
of Congress voted for H.R. 1606, the vote was 225 to 182, it 
failed to garner the two-thirds of the votes necessary to pass 
under the suspension. Therefore, it is up to us to revisit the 
subject to give the Congress one more opportunity to express 
its will on this issue.
    By reporting this legislation and scheduling it for normal 
floor consideration, we are giving Members one more chance to 
prevent the FEC from regulating the Internet. Those who favor 
regulation, the so-called reform community, believe that 
Internet speech must be regulated in the same manner as all 
other speech, lest we create a loophole that will allow people 
to evade BCRA. They are not deterred by the fact that none of 
the grim scenarios they predict will ensue have been seen in 
the past four years, four years in which the rule H.R. 1606 
would make permanent have been in effect.
    While there has been no evidence of corruption resulting 
from the Internet exemption, there has been ample evidence of 
the positive effects of a deregulated Internet. There was 42 
percent growth from 2000 to 2004 in the number of people using 
the Internet to research candidates, issues and positions. 
About 44 percent of online political activists have not been 
politically involved in the past in typical ways. They have not 
previously worked for a campaign, made a campaign donation or 
attended a campaign event. Technorati, a popular blog search 
engine, is now tracking 19.8 million blogs, and reports that 
every 5 months the number of blogs on the Internet doubles. At 
that rate it will surpass world population.
    We don't want bloggers to have to check with a Federal 
agency before they go online. They should not have to read FEC 
advisory opinions or hire Federal election lawyers to make sure 
that what they are doing is legal. They should be able to 
express their views on politics and politicians without having 
to worry about running afoul of our Federal election laws.
    The Internet has had a positive influence on our politics 
and engaged thousands of people as ever before. It has allowed 
individuals of limited means to become involved in the 
political process because, unlike other forms of media such as 
television and radio, there are few barriers to entry. The 
Internet allows for communication with millions of people for 
little or no cost. Imposing regulations would stifle this 
activity.
    Passing H.R. 1606 would ensure the Internet can continue to 
grow and continue to be a free and positive force in our 
political system.
    Let me just give a little down home flavor to this. To me, 
blogging is in a sense no different than people talking to your 
children on the telephone or sending e-mails to each other. It 
is a means of communication among people. And just as we do not 
regulate political conversations that take place between people 
or between people and other groups, I think it is appropriate 
that we free the Internet for the bloggers.
    I recognize full well, as some of the opponents of this 
bill argue, that there may be dangers in the use of the 
Internet, that it may be misused in improper ways that, in 
fact, violate current campaign finance laws in other areas, but 
I think we should give the bloggers the freedom they need, and 
if there is misuse later on in some other ways, we can deal 
with that time.
    The Chairman. At this time I would like to recognize my 
Ranking Member Ms. Millender-McDonald, the gentlewoman from 
California, and any other Members that wish to offer 
statements.
    Ms. Millender-McDonald. Good morning, and, Mr. Chairman, 
welcome.
    The Chairman. Thank you.
    Ms. Millender-McDonald. Congratulations. Now you have moved 
up to the big chair. We welcome you so much, and we know that 
you will do your due diligence in the same manner that the 
previous Chair has to the sense of fair and balanced. Seems 
like a concept that is used frequently. But we really do 
welcome you, and I have worked with you very well in the past 
and look forward to doing the same in this committee.
    Mr. Chairman, being from California, I have seen firsthand 
how the Internet has become an innovative and powerful medium. 
Little more than a decade ago when public use of the Internet 
was still in its infancy, people around the world were 
beginning to use this new technology to instantaneously 
communicate with one another. Today the Internet has grown into 
a powerful tool for commerce, information and the media.
    Looking back on this last Presidential election cycle, some 
of the positive consequences of enacting the Bipartisan 
Campaign Reform Act of 2002, which is BCRA, were the 
democratization of fund-raising, the broadening of political 
free speech, and the grass-roots efforts to increase voter 
turnout, all of which were facilitated or made possible by the 
use of the Internet. Federal officeholders and their political 
parties were forced to appeal to a broader audience of smaller 
donors, and the Internet was tapped for that purpose.
    The Internet was also used by Federal candidates to get 
their message out and to become more involved in grass-roots 
activities. Presidential candidates used the Internet to raise 
substantial amounts of money. Internet fund-raising is much 
more efficient and much less costly than conventional outreach, 
such as hiring phone banks, producing and airing TV ads, and 
sending out mass mailers. All of the money raised by the 
campaign is fully reported to the Federal Election Commission 
and publicly disclosed. Millions of small first-time donors 
recently became involved with the political process by using 
the Internet.
    Americans were not only able to contribute to candidates 
using the Internet, but they were also able to learn of the 
candidate's position as issues arose and not to have to wait 
for it during the local news report. The Internet is leveling 
the playing field between everyday Americans and big donors and 
between the candidates and the news media which covers them.
    Just this week, the George Washington University's 
Institute for Politics, Democracy and the Internet and the 
Campaign Finance Institute issued a joint report that, among 
other things, found that three or four times as many people 
contributed to the candidates in 2004 as in the year 2000, 
including an unprecedented number of small donors and Internet 
donors.
    In September of 2005, this committee conducted an 
investigatory hearing on political speech over the Internet, 
and we listened to testimony from bloggers who wanted to make 
clear that their role is to disseminate news, commentary and 
editorials.
    Bloggers should be treated no differently than talk radio. 
Bloggers inject a slew of new, independent viewpoints through a 
new medium to a broad audience at very little cost. Talk radio 
hosts have protections under the first amendment, and while I 
may not always agree with their positions on the issues of our 
day, I will nonetheless fight for their right to freely speak 
their minds. And in freely expressing themselves, if they step 
over the bounds of legal propriety by defaming someone or by 
intentional misrepresentations, for example, they can be held 
accountable in a court of law, in the court of public opinion, 
by their employers and by the Federal Communications 
Commission.
    The right of free speech still requires responsible speech. 
Of course, we all know the old adage you can't yell ``fire'' in 
a crowded theater. I am concerned that as written, this bill 
may bypass the campaign finance laws with respect to and 
coordination and financing of a candidate's on-line campaign 
advertising. I do not want to see the Internet become the 
bastion of political ads that have engulfed our television 
airwaves, especially in California.
    That being said, the Federal Election Commission, FEC, and 
the Department of Justice remain fully capable of enforcing the 
existing campaign law, including potentially corrupting 
elements of political speech which are covered by that law, 
whether that speech is over the Internet or through any other 
medium. In fact, the FEC will be ruling on this very subject 
later this month; in fact, next week.
    It may be a bit premature, Mr. Chairman for us to act on 
this issue. If we decide that the FEC is moving in the wrong 
direction on this issue, then Congress will still be free to 
act. My particular concern is that the fundamental right of all 
Americans, including the voices of minority, the elderly, the 
poor, not be left out of this political dialogue as new forms 
of Internet communication play ever-increasing roles in the 
election of public officials, the formation of public policy 
and the shaping of the American democracy.
    I voted for BCRA to sever the link with and to eliminate 
the corrupting influence of soft money on Federal 
officeholders. I did not vote for BCRA to squeeze out the 
voices of individuals expressing themselves on blogs over the 
Internet. Because of the incredible potential of the Internet 
to democratize our society, it is my hope that the Internet 
never becomes a political battleground necessitating future 
regulation. But if the Internet becomes a vehicle for soft 
money and political distortion, I am prepared to work to tailor 
a solution consistent with the Supreme Court's earlier 
decisions.
    Mr. Chairman, I, on behalf of the Minority, hereby give 
notice that the Minority intends to file additional and 
Minority views to the committee report, and I thank you, Mr. 
Chairman.
    The Chairman. Thank you.
    [The statement of Ms. Millender-McDonald follows:]

    [GRAPHIC] [TIFF OMITTED] T6920.001
    
    [GRAPHIC] [TIFF OMITTED] T6920.002
    
    The Chairman. I am now pleased to recognize the gentlewoman 
from Michigan for her comments.
    Mrs. Miller. Thank you, Mr. Chairman. I might also add I am 
delighted to call you Chairman, and we from Michigan are happy 
and very proud to have you take your spot as Chairman.
    I would like to associate myself with your opening remarks, 
and I would also say I enjoyed your sense of humor over the 
years, including what you just said about better a live blogger 
than a dead blogger. Frankly, if we fail to act, we have the 
potential for not only having a chilling effect on the 
bloggers, but choking the very life out of them. I think there 
was a choking grain of truth to your comments.
    The piece of legislation that we are about to mark up here 
today is very, very straightforward. It is about freedom of 
speech, and, according to our oath of office, we are here to 
make sure that we protect that however we can. It is typical, I 
suppose, sometimes of government or government reformers that 
every time they see some creativity, they think that it is 
important for government to try to regulate it. Where many 
people see creativity, others just see a potential for 
corruption. And I think this is very unfortunate.
    I will tell you that when I was a Michigan secretary of 
state, we, as every secretary of state and everybody involved 
in the elections industry, tried to do everything we could to 
creatively think about how we could engage more people in the 
democratic process, particularly young people. Even though 
young people are registered to vote at the same level as every 
other demographic, for whatever reason--whether they don't like 
the process, or they think there is too much corruption in 
politics, or they don't like the candidates, or whatever their 
thought processes--they unfortunately have a much less incident 
of participating in the democratic process.
    And now we see a tremendous outlet for them to talk about 
their views, talk about the candidates, and talk about the 
process by utilizing the Internet and the blogosphere. I think 
it is a very exciting outlet, and I think we do need to make 
sure that we do not stifle, that we do not choke the life out 
of it. We must allow them to be creative.
    I am pleased to see that we are going to bring this piece 
of legislation up under regular order. I was managing the 
suspension the day that the House voted on it, and we had a lot 
of consternation about whether or not it would actually pass 
under suspension. There are very few things that would pass 
under suspension, but certainly under regular order, as you 
mentioned, Mr. Chairman, it will allow for the Congress to 
really work its will under the Majority rule.
    One of the things that I thought was interesting that day 
was some who were opposed were talking about editorials that 
had been written by both The Washington Post and The New York 
Times. They were very, very opposed to this, and they thought 
that we should be regulating the Internet. And it just occurred 
to me why wouldn't you give the same freedoms and legal 
protection currently enjoyed by the editorial boards of those 
two papers to the bloggers and those who are utilizing the 
Internet? And perhaps certain media outlets want to see this 
type of thing regulated because they don't want to lose any 
more market share, which is exactly what is happening to them 
right now.
    So I think it is very, very important that this piece of 
legislation be marked up today and passed on to the floor, and 
I appreciate the time.
    The Chairman. Thank you very much.
    And let me just pick up on one thing you said. The 
interesting part about blogging is that it has really increased 
political awareness and political participation among a segment 
of society which is normally not politically involved. And as 
far as I am concerned, the more people you get involved in 
politics, the better off this country will be.
    With that, I am pleased to recognize the gentleman from 
Pennsylvania.
    Mr. Brady. Thank you, Mr. Chairman.
    Mr. Chairman, I want to congratulate you also in your new 
leadership role here and pledge my support in working along 
with you, but I would be remiss if I did not say that I have a 
lot of respect for our former Chairman. I think that you have 
some big shoes to fill. He was always fair, he was always 
honest, and he has always done a good job and shown us the 
proper respect, and there is nothing at all that would make me 
think you would not do the same thing. Congratulations again, 
and it will be my pleasure to work with you.
    The Chairman. Thank you very much.
    Does the gentleman from Florida wish to address?
    Mr. Mica. Thank you, Mr. Chairman. Just very briefly, also, 
too, congratulations on assuming the chair. I think you are the 
perfect person at the right time. Sometimes fate has a way of 
putting the right person for the right circumstances in, and I 
am delighted that one of my classmates has risen to chair this 
subcommittee at a time when we face some serious challenges.
    I do want to also compliment Mr. Ney. I have been around 
the Congress for 14 years, 7 terms. I don't think that we have 
had a finer Chairman. He has done more positive things for the 
House of Representatives in his leadership role in making some 
long overdue reforms, changes, just so many things. So his 
leadership we appreciate.
    And I will just comment very briefly on the legislation 
before us. I always like to do one of these CYAs. While I am 
prepared to support this exemption of the Internet 
communications from the definition of public administration, 
which exempts Web sites and blogs and on-line advertisements at 
this time, I appreciated the comments of Ms. Millender-
McDonald. At some point, we may have to revisit this. Every 
time we make up legislation with good intent in favor of 
freedom of speech and all of that in the political process, we 
find people who do abuse the process. The law needs to be 
flexible and adaptable and changeable to circumstances.
    So I want to leave that caveat and that--that open door to 
come back and address potential problems that we may have, not 
by people who exercise free, fair, open speech within our 
society and in the campaign and election process, but, again, 
sometimes we have seen unintended abuses and using this new 
widespread medium of communications with malpurposes.
    With that, I will support this. I do have concern for the 
future, and yield back.
    The Chairman. I appreciate your comments. As I said 
earlier, I have some concerns too. Occasionally I let the evil 
part of my brain wander, and as I said earlier, I have 
developed ideas of several ways this could be abused. I 
certainly don't want to give any hints of what they may be, but 
I would certainly be willing to reopen this if such abuse does 
take place in the future.
    With that, we will turn to the gentlewoman from California 
for her statement.
    Ms. Lofgren. Thank you, Mr. Chairman. I join in the 
congratulations of the other members of the committee to you in 
your new role and also would like to thank you for following 
the regular order on this bill. I think it is important that 
the process be followed and that people have confidence in the 
process.
    I would ask unanimous consent to put my full statement in 
the record.
    But I would simply say that it is important to know what 
this bill does and what it does not do. What it does not do is 
repeal section 441(b) of BCRA. And so there has been a lot of 
discussion publicly that I think, I am sure, although well 
intentioned, I think it has just been inaccurate.
    If the Hensarling bill passes, it would still be a 
violation of BCRA for a labor union or a corporation to fund an 
ad on the Internet, to fund a video that was shown on the 
Internet. 441(b) is not repealed, and I think it is important 
that we state that. And should somehow a court find otherwise, 
obviously we would have to revisit this issue. But that is the 
state of the law today.
    I want to note also that the FEC, as you have mentioned, is 
about to proceed, but they are constrained by the court 
decision. They can't do what we can do here by approving H.R. 
1606. And so I do think it is important that we move forward.
    And finally, I would like to publicly thank Jerry Berman 
and Leslie Harris at the Center for Democracy and Technology 
for really a very excellent effort to try to come up with some 
kind of compromise proposal. It may be that as time goes on, we 
will take a look at their proposal. It is a thoughtful one, and 
I think that they have reached out to the blogosphere to get 
suggestions. But I do think that we need to proceed today on 
the bill before us, and I appreciate the opportunity to comment 
and participate, and yield back.
    [The statement of Ms. Lofgren follows:]

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    [GRAPHIC] [TIFF OMITTED] T6920.004
    
    [GRAPHIC] [TIFF OMITTED] T6920.005
    
    [GRAPHIC] [TIFF OMITTED] T6920.006
    
    The Chairman. And I want to thank you for your request that 
we process this through the Committee rather than simply taking 
it up on the floor again under discharge. And that support was 
very helpful to me in my effort to do this.
    We have been joined by the gentleman from New York. Do you 
wish to make an opening statement?
    Hearing none, I do want to thank all of you for your 
congratulations on my assuming this chairmanship. Let me simply 
say that I appreciate the opportunity to chair the Committee. I 
will certainly do the job to the best of my ability, and 
appreciate your offers of assistance.
    But let me also say that the last thing in the world that I 
wanted was to assume it under the conditions that I assumed it 
under. I have a lot of respect for Mr. Ney. I have worked 
closely with him for many years in this committee, and it 
grieves me about what has happened to him that I had to take 
this chairmanship under those conditions. I wish him well, and 
I certainly hope that there are no lasting after-effects on the 
accusations that have been made about him.
    Having said that, without objection, the bill is considered 
as read.
    [The information follows:]

    [GRAPHIC] [TIFF OMITTED] T6920.007
    
    The Chairman. Is there any further discussion on H.R. 1606?
    Hearing none, the Chair recognizes the gentlewoman from 
Michigan for a motion.
    Mrs. Miller. Mr. Chairman, I would move that H.R. 1606 be 
reported favorably to the House.
    The Chairman. The question is on the motion. All those in 
favor signify by saying aye.
    Opposed, no.
    The bill is reported out favorably to the House of 
Representatives, and the motion is agreed to.
    One item of housekeeping business before we adjourn. The 
Chair would like to announce that a consulting contract between 
the Agriculture Committee and John Jurich was approved under 
interim authority by the previous Chairman.
    I ask unanimous consent that Members have 7 legislative 
days for statements and materials to be entered in the 
appropriate place in the record. Without objection, the 
material will be so entered.
    The Chairman. I furthermore ask unanimous consent that 
staff be authorized to make technical and conforming changes on 
all matters considered by the Committee at today's meeting. 
without objection, so ordered.
    Having completed our business for today, the Committee is 
hereby adjourned.
    [Whereupon, at 10:30 a.m., the committee was adjourned.]

                                  
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