The slogan on George W. Bush’s Web site is “Prosperity With a Purpose.” The slogan on Zach Exley’s parody of George W. Bush’s Web site, gwbush.com, is “Hypocrisy With Bravado.” Exley means to mock the contradiction between Bush’s presumed use of drugs and his support of harsh prison sentences for drug offenders today. But he might have an even better case based on the way the Bush campaign has harassed him. Bush and his lawyers are demanding the meticulous enforcement against Exley of minor campaign finance rules–rules they themselves consider dated and ridiculous.
In May, a Bush campaign lawyer named Benjamin Ginsberg filed a complaint against gwbush.com with the Federal Election Commission. In it, Ginsberg contends that the parody site constitutes an “independent expenditure” under federal election law. In other words, Bush is arguing that Exley’s Web site–a one-man operation started on a lark–should fall into the same legal category as the Willie Horton ads run against Michael Dukakis in 1988. The intimidating letter further warns that if Exley, a free-lance computer programmer in Boston, has spent more than $1,000 on his site, he must register it as a “political committee,” which means filing an even more elaborate disclosure. For a Web site run by a private individual in his spare time, meeting these requirements would constitute a substantial burden.
The complaint is hypocritical on a couple of counts. The first is that G.W. Bush himself has bought his own way out of some of the more onerous FEC disclosure requirements. Because his campaign is forgoing federal matching funds, it doesn’t have to file quarterly disclosure statements electronically. That means that Bush’s contribution reports remain essentially useless raw data for several weeks while those of his rivals are available for database searches. Bush also thinks that limits of $250 and $1,000, fixed in 1971, are anachronistically low and should be raised. Yet he is using these pre-inflation thresholds as the basis for his complaint. Even Bush’s lawyer seems to question his own assault. “It’s a fair question to ask whether the rules should cover him,” Ginsberg says of Exley.
In his response to Bush’s complaint Exley rehearses the history of Bush’s antagonism toward his site, citing W.’s infamous statement that “there ought to be limits to freedom.” He points to a number of absurdities about his situation. “I appear to be caught in a catch 22; so far I have not spent over $250 per year on the Web site,” he writes. “However, paying for legal advice would put me immediately over the FEC spending threshold, thereby validating Bush’s complaint against me.”
This is a clever point. In fact, though, legal fees don’t count toward the disclosure limits. What Exley’s response misses is a much better argument for why the FEC should leave him alone: He’s press. gwbush.com is one of the kinds of new media made possible by the Web. In fact, Exley instinctively thinks of it this way. “This is my private little magazine,” he told me. If he wants to put his non-disclosure on a firm legal footing, Exley could ask the FEC for an advisory opinion to that effect–something the FEC has to rule on within six weeks instead of several years. And Exley would have a good case, since his site isn’t anti-Bush propaganda so much as a wacky, Bush-averse take on the news. It links to Gore parody sites as well.
The FEC will probably not be in any hurry to settle the matter if it can avoid doing so. The narrow issue of whether Exley’s Web site constitutes an independent expenditure opens a much larger can of worms. It points to the reality that many of the old campaign finance laws simply don’t make sense in cyberspace. Should someone who starts a site stating his views have to disclose where his money comes from in the way someone who buys a newspaper ad does? If a Web site itself counts as an in-kind contribution to a candidate, as an earlier FEC ruling indicates, a $1,000 spending limit may apply. And if hyperlinks count as contributions, as the FEC has also indicated, then corporations, labor organizations, and foreign nationals cannot legally link to official campaign sites. Many, if not most, of the key distinctions of campaign finance law simply dissolve when immersed in the Internet.
The ethos of the Web argues against regulating private, individual activity in any way. And indeed, because the Web does much to create an open and level playing field for political expression, restraining it in the name of fairness seems counterproductive. The Center for Democracy and Technology recently published an excellent report on this topic, titled “Square Pegs and Round Holes: Applying the Campaign Finance Law to the Internet.” It doesn’t settle any of the specific questions about how campaign finance law should work in cyberspace. But it does make one thing damningly clear: The FEC is utterly unequipped to deal with them.