49–006 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 109–389 

ONLINE FREEDOM OF SPEECH ACT 

MARCH 13, 2006.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. EHLERS, from the Committee on House Administration, 

submitted the following 

R E P O R T 

[To accompany H.R. 1606] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on House Administration, to whom was referred 

the bill (H.R. 1606) to amend the Federal Election Campaign Act 

of 1971 to exclude communications over the Internet from the definition of public communication, having considered the same, report 

favorably thereon without amendment and recommend that the bill 

do pass. 

PURPOSE OF THE LEGISLATION

H.R. 1606 would exempt communications made over the Internet 

from the definition of a ‘‘public communication’’ in the Bipartisan 

Campaign Reform Act (‘‘BCRA’’) (Public Law 107–155). The purpose of this legislation is to ensure the Internet can continue to 

grow and continue to be a free and positive force in our political 

system. H.R. 1606 would allow bloggers and other online activists 

to express their view on the Internet without having to fear they 

might run afoul of our campaign finance laws. 

BACKGROUND AND NEED FOR LEGISLATION

After BCRA passed in 2002, the Federal Election Commission 

(‘‘FEC’’) was required to develop regulations to implement the Act. 

The Commission determined that Congress did not intend for 

BCRA to cover Internet communications and, therefore, adopted 

regulations that exempted them. 

Congressmen Christopher Shays (R–CT) and Marty Meehan (D– 

MA), concerned about this and other post-BCRA regulations adopted by the FEC, sued the Commission. The suit argued that the 


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1Shays v. FEC, 337 F.Supp 2d 28 (2004). Judge Kollar-Kotelly of the DC District Court struck 

down 15 of the 19 regulations challenged by Shays and Meehan. 

FEC regulations did not follow Congress’ intent in enacting BCRA. 

Over a year ago, U.S. District Judge Colleen Kollar-Kotelly agreed 

with Messrs. Shays and Meehan, and ordered the FEC to rewrite 

many of its rules, including the rule exempting Internet communications from regulation.1

A new FEC rulemaking to cover the Internet began in March 

2005, and the Commission has scheduled a meeting to vote on 

these new rules on March 16, 2006. Unless Congress acts quickly 

to prevent it, the FEC will be required to issue a new regulation 

to cover Internet communications. 

Historically, Congress has regulated political speech only where 

it has the potential to cause corruption or the appearance of the 

corruption. There has been no demonstration that the growth of 

the Internet has had a corruptive influence on politics. There is, 

however, ample evidence that the Internet has had a positive, democratizing effect on our system. 

The Internet has had a positive influence on our politics and engaged thousands of people as never 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. 

The Internet achieves through technology what BCRA seeks to 

achieve by law. It levels the playing field, empowers ordinary citizens, minimizes the influence of wealth and enhances the voice of 

those of lesser means. Imposition of a regulatory scheme on this 

medium will stifle this activity and discourage participation, thereby enhancing the influence of the wealthy and connected, contrary 

to the stated purpose of our campaign finance laws. 

The chilling effect of a regulatory scheme would be exacerbated 

by its arbitrariness—for example, the FEC trying to determine on 

a case-by-case basis which bloggers should be considered ‘‘news’’ organizations and be granted a media exemption and be taken out 

of the realm of regulated organizations, and which should not. This 

arbitrariness would negatively impact bloggers in particular because their sites often meld news and advocacy. 

Instead of constantly drawing arbitrary lines and hard to follow 

rules for Internet activists to abide by, the FEC should just leave 

the Internet alone. H.R. 1606 would tell the FEC that it was right 

the first time—the Internet should be left alone to flourish and not 

be burdened by regulation. 

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. The 2004 election was conducted with the rule 

H.R. 1606 would codify in place, and none of the ill effects predicted were seen. 

While there has been no evidence of corruption resulting from 

the Internet exemption there has been ample evidence of the posiVerDate Aug 31 2005 01:58 Mar 14, 2006 Jkt 049006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\HR389.XXX HR389

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2Lee Ranie, Michael Cornfield, and John Horrigan, ‘‘The Internet and Campaign 2004,’’ Pew 

Internet and American Life Project, March 6, 2005 at iv. 3 As of February 2004. See ‘‘Political Influentials Online in the 2004 Presidential Campaign,’’

Institute for Politics, Democracy & the Internet, Graduate School of Political Management, 

George Washington University, February 5, 2004 at 5. 4 As of March 13, 2006. See http://www.technorati.com/about/. 

tive effects of a deregulated Internet. There was 42% growth from 

2000 to 2004 in the number of people using the Internet to research candidates’ issues positions.2 About 44% 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.3 Technorati, a 

popular blog search engine, is now tracking 30.4 million blogs and 

reports that every day, 70,000 new blogs are created.4

H.R. 1606 would make sure bloggers do not have to check with 

a federal agency before they go online. It would protect bloggers 

from being forced to constantly read FEC advisory opinions, or to 

hire federal election lawyers to make sure what they are doing is 

legal. This bill would allow bloggers to express their views on politics and politicians without having to worry about running afoul of 

federal election laws. 

SUMMARY OF THE LEGISLATION

Section 1.—Short title: the ‘‘Online Freedom of Speech Act’’ 

Section 2.—Modification of definition of public communication 

—Excludes communications made over the Internet from being 

considered ‘‘public communications.’’

Under current law, a regulated ‘‘federal election activity’’ includes ‘‘public communications,’’ such as broadcast, cable, satellite, 

or newspaper communication to the general public. In October 

2002, the Federal Election Commission promulgated regulations to 

exempt communications over the Internet from the definition of 

‘‘public communications.’’ H.R. 1606 would amend federal law to 

codify the current exemption of Internet communications from the 

definition of public communications. 

COMMITTEE CONSIDERATION OF THE LEGISLATION 

INTRODUCTION AND REFERRAL

On April 13, 2005, Mr. Hensarling introduced H.R. 1606, the 

‘‘Online Freedom of Speech Act,’’ which was referred to the Committee on House Administration. 

HEARINGS

The Committee on House Administration held a hearing on H.R. 

1606 on September 22, 2005. 

Members present: Mr. Ney, Mr. Ehlers, Ms. Miller, Ms. 

Millender-McDonald, and Ms. Lofgren. 

Witnesses: The Honorable Scott E. Thomas, Chairman, FEC; The 

Honorable Michael E. Toner, Vice Chairman, FEC; The Honorable 

Ellen L. Weintraub, Commissioner, FEC; Michael Krempasky, 

blogger, RedState.org; Duncan Black, blogger, Eschaton; Bradley 

Smith, Professor, Capital University Law School; Lawrence Noble, 


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Executive Director, Center for Responsive Politics; and Karl 

Sandstrom, Of Counsel, Perkins Coie LLP. 

MARKUP

On March 9, 2006, the Committee met to mark up H.R. 1606. 

Members Present: Mr. Ehlers, Mr. Mica, Mr. Reynolds, Ms. Miller, Ms. Millender-McDonald, Mr. Brady, Ms. Lofgren. 

The Committee favorably reported H.R. 1606, by a voice vote, a 

quorum being present. 

MATTERS REQUIRED UNDER THE RULES OF THE HOUSE 

COMMITTEE RECORD VOTES

Clause 3(b) of House rule XIII requires the results of each record 

vote on an amendment or motion to report, together with the 

names of those voting for and against, to be printed in the committee report. 

The Committee voted to favorably report H.R. 1606. The vote to 

report favorably was approved by a voice vote. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) rule XIII of the Rules of the 

House of Representatives, the Committee states that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the House of Representatives, 

are incorporated in the descriptive portions of this report. 

GENERAL PERFORMANCE GOALS AND OBJECTIVES

The Committee states, with respect to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, that the goal and objective of H.R. 1606 is to ensure the Internet can continue to grow 

and continue to be a free and positive force in the political system. 

H.R. 1606 will allow bloggers and other online activists to express 

their view on the Internet without fear of running afoul of campaign finance laws. 

CONSTITUTIONAL AUTHORITY

In compliance with clause 3(c)(1) of rule XIII, the Committee 

states that Article 1, Section 4 of the U.S. Constitution grants Congress the authority to make law governing the time, place and 

manner of holding Federal elections. 

FEDERAL MANDATES

The Committee states, with respect to section 423 of the Congressional Budget Act of 1974, that the bill does not include any 

significant federal mandate. 

PREEMPTION CLARIFICATION

Section 423 of the Congressional Budget Act of 1974 requires the 

report of any committee on a bill or joint resolution to include a 

committee statement on the extent to which the bill or joint resoluVerDate Aug 31 2005 01:58 Mar 14, 2006 Jkt 049006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR389.XXX HR389

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tion is intended to preempt state or local law. The Committee 

states that H.R. 1606 does not preempt any state or local law. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, the following estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the 

Congressional Budget Act of 1974: 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, March 10, 2006. 

Hon. VERNON J. EHLERS, 

Chairman, Committee on House Administration, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1606, the Online Freedom 

of Speech Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

DONALD B. MARRON, 

Acting Director. 

Enclosure. 

H.R. 1606—Online Freedom of Speech Act 

CBO estimates that enacting H.R. 1606 would have no significant impact on the federal budget. Enacting the bill would not affect direct spending or revenues. H.R. 1606 contains no intergovernmental or private-sector mandates as defined in the Unfunded 

Mandates Reform Act and would not affect the budgets of state, 

local, or tribal governments. 

Under the Federal Election Campaign Act, a regulated ‘‘federal 

election activity’’ includes ‘‘public communications,’’ such as broadcast, cable, satellite, or newspaper communication to the general 

public. In October 2002, the Federal Election Commission promulgated regulations to exempt communications over the Internet from 

the definition of ‘‘public communications.’’ H.R. 1606 would amend 

federal law to codify the current exemption of Internet communications from the definition of public communications. Because the 

legislation would not change any current policy or practice, CBO 

estimates that implementing H.R. 1606 would have no significant 

impact on the budget. 

The CBO staff contact for this estimate is Matthew Pickford. 

This estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 


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FEDERAL ELECTION CAMPAIGN ACT OF 1971 

TITLE III—DISCLOSURE OF FEDERAL CAMPAIGN FUNDS 

DEFINITIONS 

SEC. 301. When used in this Act: 

(1) * * * 

* * * * * * * 

(22) PUBLIC COMMUNICATION.—The term ‘‘public communication’’ means a communication by means of 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. Such term shall not include communications over 

the Internet. 

* * * * * * * 

Æ 


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