Politicians and the Unlimited Spamming of America

LAST MONTH MARKETERS narrowly dodged a legislative bullet when HR 1606, the Online Freedom of Speech Act, was defeated. Had it passed, holiday season e-mails and other online efforts would have been rendered significantly less effective. I've quoted the bill here in its entirety, but don't spend too much time trying to glean either its meanings or ramifications. Part of what made it so insidious was all the room it left for interpretation.

It read: “Paragraph (22) of section 301 of the Federal Election Campaign Act of 1971 (2 U.S.C. 431(22)) is amended by adding at the end the following new sentence: ‘Such term shall not include communications over the Internet.’”

Now, the Federal Election Campaign Act governs how much money can be spent on political campaigns, among other things. Had the new measure been enacted, spending caps would have remained on direct mail, television, radio and telemarketing spending, but not on electronic channels. This means candidates could've sent out as much e-mail as they wanted and not have it count against their expenditure limits.

Read that last sentence again, and then consider: During the third and fourth quarters of every year, consumers' e-mailboxes would be flooded with political messages, thanks to this spending loophole. I'd love to hear from any consumer-focused marketer who wants his or her holiday solicitations to compete with a torrent of political mailings in the weeks leading up to the November elections.

Additionally, consumers would have been annoyed that, despite registering for do-not-e-mail lists, they kept receiving political messages. How can I be so confident this would happen? There's a precedent for it: Congress consistently has exempted itself from any marketing restriction it's placed on the private sector.

Those supporting the proposal stressed that its primary purpose was to ward off regulation of political blogs and other sources of opinion and discourse. The First Amendment argument is at best a red herring; political blogs already are covered by a number of free speech protections. This bill is about e-mail marketing on behalf of candidates.

Don't take my word for it. One supporter, Rep. Chris Cannon (R-UT and no relation) issued a statement in support of the bill, saying it would “exempt blogs, e-mail and other online speech from campaign finance laws.”

Cannon goes on to make the arguments regarding protecting political blogs while neatly glossing over paid-for electronic advertising. But be assured that anyone attempting to tell legislators that spending restrictions still apply for political e-mail would be laughed off Capitol Hill.

The measure failed to get out of the House on a parliamentary technicality. But House Speaker Dennis Hastert (R-IL) already has said he will introduce it again, if not under this bill number, than another. Seems like the direct marketing industry has some e-mailing of its own to do.