The staff at the State Elections Enforcement Commission (SEEC) has just told me that they consider the use of this site and other social networking websites, like Facebook, to be campaign expenditures.
For the record, the SEEC staff are completely wrong. They want me to write this, "Paid for by O'Brien for State Representative, Emy Vasquez-Skene, Treasurer. Approved by Tim O'Brien" on this site. However, let's be clear, this site is NOT paid for by O'Brien for State Representative because it costs nothing to use.
On the surface, this might not sound like such a big deal, but the implications of this silly, nit-picky misinterpretation by SEEC could be far reaching.
But first, a bit of background...
Our state's campaign finance law is built around the definitions of two important terms "contribution" and "expenditure". So important are these legal definitions that each of these words is given its own section of the state laws to elaborate on its meaning - section 9-601a for "contribution" and 9-601b for "expenditure". These terms are important because something is only regulated by our state's campaign finance laws if, and only if, that something falls within the definition of either "contribution" or "expenditure" (or both). Some of the campaign finance laws require "paid for by" attributions, some require reporting in legal filings at the SEEC and others tell you what you can and cannot do. But if something does not count as either a "contribution" or a "expenditure", that something is exempt from the campaign finance laws.
There is good reason for this. Campaign finance laws are designed to prevent the corruption or perceived corruption of elected government through large campaign contributions or expenditures. The idea is that elected officials maybe are, but certainly could be perceived to be, in the pockets of someone who donated or spent a lot of money to get them elected. Thus, campaign finance laws regulate money spent in campaigns - and they are not supposed to regulate anything else. So giving money or something of value to a campaign is supporting a campaign financially and it may count as a "contribution", and spending money or using something of value by or on behalf a campaign is also supporting a campaign financially and may count as an "expenditure".
By the way, in the legal justification for campaign finance laws, the word large is important. Small amounts of money do not affect election outcomes and, in any case, the Supreme Court in Buckley vs. Valeo clearly pointed out that it was large amounts of campaign money that justified campaign funding regulations. Plus, campaign finance laws, like all laws, are not meant to apply to small, nit-picky things. That is why there is a general legal precept called de minimis, which means something that is "so small or minimal in difference that it does not matter or the law does not take it into consideration."
Now, let us look at how the new world of free internet services fit into this...
Free internet services have blossomed in recent years. Free internet services are just that, free for anyone to use. The companies that run them offer their various services free for users for their own business reasons, including advertising, but for people who create accounts at and use these services, there is no cost.
This blog exists on such a free internet service, called Blogger. Facebook, MySpace, Twitter, YouTube and many other social networking sites are free internet services or offer a free version of their service, like the one I use for my site "Tim O'Brien's Online Community" and my campaign website. Even web mail services such as GMail, Yahoo Mail and Hotmail are free internet sites, as well, because they cost users nothing to send and receive e-mail through them.
Now, let us take the case of someone (even a candidate for office) who uses a free internet service - say, Facebook - to express their opinion about who should be elected. Because this person is not charged any money by Facebook for using their services, this user is not expending any money and therefore their use of Facebook does not count under section 9-601b as an "expenditure". Even though Facebook does spend money maintaining their service, Facebook is only deemed to be making a "contribution" if the amount they charge the user to use their services is less than what they would charge anyone else. Since the amount Facebook charges anyone is $0, the $0 charged to the person expressing their point of view about the elections is no discount, and therefore their use of Facebook also does not count as a "contribution" under section 9-601a.
Since this person's use of Facebook is neither an expenditure nor a contribution, the use of Facebook by anyone, including candidates for office, is not regulated under our state's campaign finance laws.
The SEEC staff counter that the use of free internet services for the expression of political opinions are still regulated under campaign finance laws because, to access these websites, you still have to the use of your home computer and internet service, which both cost money. But they are still dead wrong on this account, too. The state laws, in subsections 9-601a(b)(5) and 9-601b(b)(6) explicitly exempt "[t]he use of real or personal property ... voluntarily provided by an individual to a candidate or on behalf of a state central or town committee, in rendering voluntary personal services for candidate or party-related activities at the individual's residence...". So, any use of your own computer in your own home is exempt from the campaign finance laws - including accessing Facebook. So again, SEEC is wrong.
Even if the exemptions in subsections 9-601a(b)(5) and 9-601b(b)(6) did not apply, how much, really, of an expense can the use of your home computer to use Facebook really be? Pennies? Fractions of pennies? Plus, you would have had your computer and internet service anyway, so there is no increase in cost to you because you used your home computer to access Facebook. In either case, the precept of de minimis - that these "costs", even if they do exist, are too small to think about - clearly applies, and Elections Enforcement should have the common sense not to apply the entirety of the regulations in our election laws to things that have nothing to do with the kind of large expenditures that are the whole purpose of our campaign finance laws in the first place.
The problems with this mis-interpretation of law are many...
Perhaps the SEEC's goal is simply to require that all websites operated by candidates and their campaigns to have a "Paid for by..." statement. But it is both incorrect and silly to require candidates to say that their campaigns "paid for" something that they did not, in fact, pay for. And the bigger problem is that, if SEEC considers a website with a "paid for by" statement for one candidate to be that one of that candidate's campaign websites, then then it would be illegal to use that website to support any other candidate without that candidate's campaign paying a pro-rated share of the cost.
So, for example, if I put on my Facebook profile, "Paid for by O'Brien for State Representative, Emy Vasquez-Skene, Treasurer. Approved by Tim O'Brien", that Facebook profile might be considered a website for my campaign committee. If I then subsequently write a "wall post" on my profile that asks people to vote for my favorite candidate for governor, SEEC staff actually told me that I would have to put the "paid for by" attribution for that candidate on my Facebook profile. But what about the pro-rated share of the cost? And what cost? $0.0001?
I also asked SEEC staff how this rule would affect people who are not candidates for office - the general public. Their answer is that using free internet services like Facebook to advocate in favor of or against a candidate would count as small "independent expenditures" - meaning that SEEC still was suggesting that private individuals would be making regulated campaign expenditures under the laws just by using their Facebook accounts. They did suggest that these might count as very small "independent expenditures" that would not require attribution and legal reporting, but using this "independent expenditure" exemption places the burden on the private individual using their Facebook (or other social networking) account to prove that they had no connection with the candidate they were speaking in favor of. Otherwise, they would still have to put the "paid for by" statement for the candidate they wrote in favor of on their Facebook profile. SEEC staff did say that they did not think that this attribution rule should apply to campaign volunteers but could not give a good reason why, since they interpreted that the use of social networking sites counted as campaign expenditures and there is nothing in the definition of "expenditure" that treats expenditures by candidates differently from expenditures by anyone else.
Then there is Twitter. Twitter "tweets" can only be 140 characters long, not words, characters. My "paid for by" attribution statement is 96 characters long, even without punctuation. That leaves only 44 characters for me to actually say anything. Here is a little experiment to see how far 44 character goes: "Let's see how much I can write before I use ". And that is it, 44 characters. Is this really what SEEC wants to do? Really?
There is good reason why free internet services, and social networking sites like Facebook, should be exempt from campaign finance law. If the interpretation the SEEC means to apply here stands, unnecessary rules and regulations could make it harder or even impossible for everyday people to use the great promise that the internet offers for democracy. For the past several decades, the high costs of mass media - mainly television - have made expressing political opinions too costly for the average person to afford. But the internet offers the promise of free communication that can, at least in part, replace the expensive communication that can only be afforded by the wealthy and large corporations.
The laws of our state do, in fact, exempt the use of these free internet services from regulation. And that is a good thing that should be defended. If it is not, it is foreseeable that private individuals will have to ply through red tape, file reports and post "paid for by" notices when all they want to do is write their opinions on the internet on a site that does not charge them for doing it.
In conclusion...
The good and orderly application of the laws of the state require that we have a State Elections Enforcement Commission that exercises common sense in applying the laws. The election laws are written to give SEEC a lot of discretion so that they can exercise common sense in making sure that the real purpose of campaign finance law is fulfilled. That purpose, again, being to prevent the adverse impact of large amounts of private money in the political process, NOT to nit-pick infinitesimally small or non-existent amounts of money so that they can get their hooks into regulating people's free speech (the kind that actually is free).
This matter is just one example of how our SEEC has been choosing cumbersome nit-picking beyond their legal charge instead of exercising the common sense that is in their charge. SEEC has had propensity to not think through how their interpretations and mis-interpretations of our state's election laws can make it cumbersome for people to express their opinions and participate in the political process - all too often making our laws harmful rather than helpful to democracy by making it harder for everyday people to participate than for people with a lot of money at their disposal.
It does not have to be this way. The State Elections Enforcement Commission does an admirable job in many ways. I implore them to take a step back, think about the implications of the way they do things, and bring a little more common sense to the job.
By the way, this message, though I am not legally required to say so, is, in fact, approved by Tim O'Brien. But it is not paid for by O'Brien for State Representative, Emy Vasquez-Skene, Treasurer.
For the record, the SEEC staff are completely wrong. They want me to write this, "Paid for by O'Brien for State Representative, Emy Vasquez-Skene, Treasurer. Approved by Tim O'Brien" on this site. However, let's be clear, this site is NOT paid for by O'Brien for State Representative because it costs nothing to use.
On the surface, this might not sound like such a big deal, but the implications of this silly, nit-picky misinterpretation by SEEC could be far reaching.
But first, a bit of background...
Our state's campaign finance law is built around the definitions of two important terms "contribution" and "expenditure". So important are these legal definitions that each of these words is given its own section of the state laws to elaborate on its meaning - section 9-601a for "contribution" and 9-601b for "expenditure". These terms are important because something is only regulated by our state's campaign finance laws if, and only if, that something falls within the definition of either "contribution" or "expenditure" (or both). Some of the campaign finance laws require "paid for by" attributions, some require reporting in legal filings at the SEEC and others tell you what you can and cannot do. But if something does not count as either a "contribution" or a "expenditure", that something is exempt from the campaign finance laws.
There is good reason for this. Campaign finance laws are designed to prevent the corruption or perceived corruption of elected government through large campaign contributions or expenditures. The idea is that elected officials maybe are, but certainly could be perceived to be, in the pockets of someone who donated or spent a lot of money to get them elected. Thus, campaign finance laws regulate money spent in campaigns - and they are not supposed to regulate anything else. So giving money or something of value to a campaign is supporting a campaign financially and it may count as a "contribution", and spending money or using something of value by or on behalf a campaign is also supporting a campaign financially and may count as an "expenditure".
By the way, in the legal justification for campaign finance laws, the word large is important. Small amounts of money do not affect election outcomes and, in any case, the Supreme Court in Buckley vs. Valeo clearly pointed out that it was large amounts of campaign money that justified campaign funding regulations. Plus, campaign finance laws, like all laws, are not meant to apply to small, nit-picky things. That is why there is a general legal precept called de minimis, which means something that is "so small or minimal in difference that it does not matter or the law does not take it into consideration."
Now, let us look at how the new world of free internet services fit into this...
Free internet services have blossomed in recent years. Free internet services are just that, free for anyone to use. The companies that run them offer their various services free for users for their own business reasons, including advertising, but for people who create accounts at and use these services, there is no cost.
This blog exists on such a free internet service, called Blogger. Facebook, MySpace, Twitter, YouTube and many other social networking sites are free internet services or offer a free version of their service, like the one I use for my site "Tim O'Brien's Online Community" and my campaign website. Even web mail services such as GMail, Yahoo Mail and Hotmail are free internet sites, as well, because they cost users nothing to send and receive e-mail through them.
Now, let us take the case of someone (even a candidate for office) who uses a free internet service - say, Facebook - to express their opinion about who should be elected. Because this person is not charged any money by Facebook for using their services, this user is not expending any money and therefore their use of Facebook does not count under section 9-601b as an "expenditure". Even though Facebook does spend money maintaining their service, Facebook is only deemed to be making a "contribution" if the amount they charge the user to use their services is less than what they would charge anyone else. Since the amount Facebook charges anyone is $0, the $0 charged to the person expressing their point of view about the elections is no discount, and therefore their use of Facebook also does not count as a "contribution" under section 9-601a.
Since this person's use of Facebook is neither an expenditure nor a contribution, the use of Facebook by anyone, including candidates for office, is not regulated under our state's campaign finance laws.
The SEEC staff counter that the use of free internet services for the expression of political opinions are still regulated under campaign finance laws because, to access these websites, you still have to the use of your home computer and internet service, which both cost money. But they are still dead wrong on this account, too. The state laws, in subsections 9-601a(b)(5) and 9-601b(b)(6) explicitly exempt "[t]he use of real or personal property ... voluntarily provided by an individual to a candidate or on behalf of a state central or town committee, in rendering voluntary personal services for candidate or party-related activities at the individual's residence...". So, any use of your own computer in your own home is exempt from the campaign finance laws - including accessing Facebook. So again, SEEC is wrong.
Even if the exemptions in subsections 9-601a(b)(5) and 9-601b(b)(6) did not apply, how much, really, of an expense can the use of your home computer to use Facebook really be? Pennies? Fractions of pennies? Plus, you would have had your computer and internet service anyway, so there is no increase in cost to you because you used your home computer to access Facebook. In either case, the precept of de minimis - that these "costs", even if they do exist, are too small to think about - clearly applies, and Elections Enforcement should have the common sense not to apply the entirety of the regulations in our election laws to things that have nothing to do with the kind of large expenditures that are the whole purpose of our campaign finance laws in the first place.
The problems with this mis-interpretation of law are many...
Perhaps the SEEC's goal is simply to require that all websites operated by candidates and their campaigns to have a "Paid for by..." statement. But it is both incorrect and silly to require candidates to say that their campaigns "paid for" something that they did not, in fact, pay for. And the bigger problem is that, if SEEC considers a website with a "paid for by" statement for one candidate to be that one of that candidate's campaign websites, then then it would be illegal to use that website to support any other candidate without that candidate's campaign paying a pro-rated share of the cost.
So, for example, if I put on my Facebook profile, "Paid for by O'Brien for State Representative, Emy Vasquez-Skene, Treasurer. Approved by Tim O'Brien", that Facebook profile might be considered a website for my campaign committee. If I then subsequently write a "wall post" on my profile that asks people to vote for my favorite candidate for governor, SEEC staff actually told me that I would have to put the "paid for by" attribution for that candidate on my Facebook profile. But what about the pro-rated share of the cost? And what cost? $0.0001?
I also asked SEEC staff how this rule would affect people who are not candidates for office - the general public. Their answer is that using free internet services like Facebook to advocate in favor of or against a candidate would count as small "independent expenditures" - meaning that SEEC still was suggesting that private individuals would be making regulated campaign expenditures under the laws just by using their Facebook accounts. They did suggest that these might count as very small "independent expenditures" that would not require attribution and legal reporting, but using this "independent expenditure" exemption places the burden on the private individual using their Facebook (or other social networking) account to prove that they had no connection with the candidate they were speaking in favor of. Otherwise, they would still have to put the "paid for by" statement for the candidate they wrote in favor of on their Facebook profile. SEEC staff did say that they did not think that this attribution rule should apply to campaign volunteers but could not give a good reason why, since they interpreted that the use of social networking sites counted as campaign expenditures and there is nothing in the definition of "expenditure" that treats expenditures by candidates differently from expenditures by anyone else.
Then there is Twitter. Twitter "tweets" can only be 140 characters long, not words, characters. My "paid for by" attribution statement is 96 characters long, even without punctuation. That leaves only 44 characters for me to actually say anything. Here is a little experiment to see how far 44 character goes: "Let's see how much I can write before I use ". And that is it, 44 characters. Is this really what SEEC wants to do? Really?
There is good reason why free internet services, and social networking sites like Facebook, should be exempt from campaign finance law. If the interpretation the SEEC means to apply here stands, unnecessary rules and regulations could make it harder or even impossible for everyday people to use the great promise that the internet offers for democracy. For the past several decades, the high costs of mass media - mainly television - have made expressing political opinions too costly for the average person to afford. But the internet offers the promise of free communication that can, at least in part, replace the expensive communication that can only be afforded by the wealthy and large corporations.
The laws of our state do, in fact, exempt the use of these free internet services from regulation. And that is a good thing that should be defended. If it is not, it is foreseeable that private individuals will have to ply through red tape, file reports and post "paid for by" notices when all they want to do is write their opinions on the internet on a site that does not charge them for doing it.
In conclusion...
The good and orderly application of the laws of the state require that we have a State Elections Enforcement Commission that exercises common sense in applying the laws. The election laws are written to give SEEC a lot of discretion so that they can exercise common sense in making sure that the real purpose of campaign finance law is fulfilled. That purpose, again, being to prevent the adverse impact of large amounts of private money in the political process, NOT to nit-pick infinitesimally small or non-existent amounts of money so that they can get their hooks into regulating people's free speech (the kind that actually is free).
This matter is just one example of how our SEEC has been choosing cumbersome nit-picking beyond their legal charge instead of exercising the common sense that is in their charge. SEEC has had propensity to not think through how their interpretations and mis-interpretations of our state's election laws can make it cumbersome for people to express their opinions and participate in the political process - all too often making our laws harmful rather than helpful to democracy by making it harder for everyday people to participate than for people with a lot of money at their disposal.
It does not have to be this way. The State Elections Enforcement Commission does an admirable job in many ways. I implore them to take a step back, think about the implications of the way they do things, and bring a little more common sense to the job.
By the way, this message, though I am not legally required to say so, is, in fact, approved by Tim O'Brien. But it is not paid for by O'Brien for State Representative, Emy Vasquez-Skene, Treasurer.
