This Note discusses an aspect of this fundamental question in the context of one provision of the FECA. The FECA's identification requirement, section 441d, prohibits anonymous communications via mass media when any person makes an expenditure for the purpose of financing communications expressly advocating the election or defeat of clearly identified candidates. The mass media included are broadcast, print, direct mail, outdoor advertising facilities, and any other general public political advertising. Communications triggering this provision must contain clear information identifying who paid for and who authorized them. The statute delineates three possible required disclosures: (1) that the communication has been paid for and authorized by a candidate, her political committee, or its agents; (2) that the communication has been authorized by a candidate, her political committee, or its agents but paid for by a third party and that party's name; or (3) that the communication has not been authorized by a candidate, her political committee, or its agents and has been paid for by a third party and that party's name."
The question addressed by this Note is whether similar political communications on the Internet should be subject to an identification requirement modeled on section 441d. This question is complicated by the idiosyncratic architectural and economic characteristics of the Internet. The Internet affords ordinary people greater opportunities for participation in our electoral process by facilitating inexpensive mass communication: speech is cheap on the Net. As the Supreme Court has told us, "through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox." But because the Internet also affords speakers an unprecedented ability to communicate anonymously--long viewed as a mixed blessing--there is good reason to fear that schemes such as the one described above will infect the process itself. Although it will be ultimately Congress's responsibility to address this problem, the FEC so far seems to be heading us down a misguided path toward solving it.
Paul A. Werner, III,
e-Pluribus Unum?: The Problem of Anonymous Election-Related Communications on the Internet,
4 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol4/iss1/4