FEC drops Bush complaint against Internet parody site

Wednesday, April 19, 2000

The Federal Election Commission has dismissed George W. Bush’s complaint against the operator of an online parody site, saying the case was too low a priority to warrant the use of the agency’s resources.

That means Zack Exley, a New York-based computer consultant, can continue to wax paradoxical on gwbush.com about the leading Republican candidate for president.

Some cheered the commission’s decision to dismiss the complaint saying it upholds the rights of individuals to participate online in the political process. But some Internet advocates say the decision leaves the issue of political speech on the Web in limbo.

Benjamin Ginsberg, a lawyer for the Bush campaign, filed the complaint nearly a year ago, contending that Exley was campaigning and should comply with federal election laws. Specifically, the complaint said Exley should be required to post a disclaimer citing the site’s origin, file with the FEC as a political action committee and report his expenses if he spent more than $250 on the site.

In news conferences last year about the site, Bush called Exley a “garbage man” for posting humor columns about him. Bush also suggested: “There ought to be limits to freedom.”

A Bush spokesman said the campaign didn’t plan any further action in the case.

FEC officials declined to comment on the case, citing an agency policy of not discussing compliance cases publicly. The FEC dismissed the case on Feb. 29 but did not announce its decision until April 14.

In a case summary, an agency investigator told commissioners: “There is no evidence of serious intent to violate the Federal Election Campaign Act, and this matter is less significant relative to other matters pending before the Commission.”

John Whitehead, president of the Rutherford Institute, cheered the decision saying it frees Exley and other individuals to take their political advocacy to the Internet. The Virginia-based conservative legal foundation had offered to handle Exley’s legal fees if the Bush campaign opted to take him to court.

The FEC’s decision to dismiss the complaint “means a couple of things,” Whitehead said in a telephone interview. “One, that powerful people will not be able to use the FEC to intimidate people who write a parody of them or criticize them. It also means that people like Zack Exley won’t be characterized as political action committees and have submit to these intrusive campaign forms.”

But the Center for Democracy and Technology, one of several groups urging the FEC to keep political speech on the Internet open, says the commission’s decision leaves individuals guessing. Ari Schwartz, a spokesman for the group, said they hoped the FEC would adequately address the issue in upcoming debates.

The commission, during a hearing last October, opened the issue of political speech on the Internet to public inquiry. The comment period ended Jan. 7.

In part, commissioners said that they would consider such questions as: In which situations should political advocacy on the Internet be regulated? Should individual political Web sites be subject to federal election laws? What value, if any, does a hyperlink have? Should corporate Web sites be barred from political commentary?

Schwartz says the FEC’s consideration of online political advocacy shows that it is serious about debating the issue.

“The public comment period, in particular, suggested that they want to move the discussion forward and understand that the Internet is a different kind of medium,” he said.

But he says he’s confused as to why the FEC didn’t make note of their efforts in the Exley decision.

“It’s hard to say now what an individual can or cannot do,” Schwartz said. “We’re most concerned about the individual who puts out a banner for a candidate with a link but it has nothing to do with the rest of the site. That’s essentially the equivalent of posting a yard sing in your front yard, but is it allowed?”

Whitehead agrees that the FEC failed to address the issue, but says the dismissal still sends a strong message.

“Sure the FEC, at some point, has to decide very clearly what it wants to do,” Whitehead said. “But in the meantime, this says to politicians, ‘Send a message to lighten up and get a sense of humor. Stop trying to intimidate.”

Phillip Taylor, a reporter for the Daily Press in Newport News, Va., is a free-lance correspondent for The Freedom Forum Online.