March 30, 2005
Federal Election Commissioner Ellen Weintraub says the FEC has
no interest in regulating political speech on the Internet. She
opened a recent hearing by saying no one at the FEC has sought to
manipulate it "as a vehicle for shutting down the right of any
individual to use his electronic soapbox to voice his political
The FEC "does not tell private citizens what they can or cannot say on the Internet or elsewhere," Weintraub added. During the same March 24 hearing, Weintraub's fellow Democrat on the panel, Danny McDonald, mocked as "much ado about nothing" claims by Internet critics that the FEC was considering regulating political speech on the Internet.
Nothing? In fact, several weeks before the hearing, General Counsel Lawrence Norton told all six FEC commissioners that the panel must police political speech on the Internet with the same strict campaign finance regulations that silence critics on broadcast media two months before a congressional election. This became public when RedState.org blogger Mike Krempasky published a leaked copy of Norton's March 10 draft of a proposed rule that would have effectively imposed on the Internet the same restrictive regulations that, among other things, ban broadcast TV spots that mention federal candidates by name.
The episode underscores why Congress must move quickly to strengthen the federal Freedom of Information Act. Both Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vt., have proposed legislation to do this - the Open Government Act of 2005 and its companion proposal, the Faster FOIA Act of 2005.
Both proposals were developed by Cornyn and Leahy after months of study and consultation with a broad spectrum of legal experts and open-government advocates, including liberals and conservatives. Their proposals would amend the 1966 Freedom of Information Act, which guarantees citizens timely access to documents paid for with their tax dollars, subject only to reasonable exceptions for national security, law enforcement and other considerations.
Cornyn and Leahy recognize that the current federal FOIA system needs help, especially now that more citizens than ever before are using it to obtain information about government programs and activities. More than 2.7 million FOIA requests were filed last year, according to the U.S. Department of Justice, up from 2.3 million requests in 2003.
But a 2003 survey by the National Security Archive of 35 federal agencies that account for 97 percent of all FOIA requests found a system "in extreme disarray" because "agency contact information on the web was often inaccurate; response times largely failed to meet the statutory standard; only a few agencies performed thorough searches, including e-mail and meeting notes; and the lack of central accountability at the agencies resulted in lost requests and inability to track progress."
The Open Government Act of 2005 would make several common-sense reforms, including:
-Requiring federal agencies to establish FOIA hotlines to track the progress of requests.
-Providing concrete penalties to individual federal employees and agencies that violate the FOIA.
-Establishing an independent arbiter within the Administrative Conference of the United States to mediate disputes between agencies and requestors and to monitor agency FOIA compliance.
The Faster FOIA Act of 2005 would establish a 16-member commission to study the current system and recommend to Congress and the president additional reforms designed to ensure agencies comply with FOIA deadlines for responding to requestors.
So how would the Cornyn-Leahy measures address situations such as Weintraub and McDonald's misleading statements about FEC plans to regulate Internet political speech?
Actually, neither measure would. But they would make it easier for citizens to obtain the documents and information they need to better understand what elected and appointed officials and federal bureaucrats are doing in their name and to hold them accountable for the results.
Current FOIA law exempts from disclosure "pre-decisional" documents such as draft FEC rules and memos containing confidential advice to a government official about a prospective decision. The exemption prevents citizens from understanding how officials actually arrive at their decisions and what influences them.
The exemption could be tightened to require disclosure of documents such as the FEC General Counsel's proposed rule for regulating Internet political speech. And it could be done without unnecessarily compromising the ability of officials to receive candid confidential advice. Then officials such as Weintraub and McDonald would think twice before misleading the rest of us about their plans.
Mark Tapscott is director of the Center for Media and Public Policy at The Heritage Foundation (heritage.org).
Distributed nationally on the Knight-Ridder Tribune wire