Following up on Capuano and House Web Restrictions

by Matt Stoller [courtesy of Open Left - Front Page]

Some of you are wondering why I wrote so aggressively about Michael Capuano's proposed rules for House use of the web.  Simply put, I've tried to work with members of the House and Senate to do neat internet projects (like Legislation 2.0, or putting legislation online), and ethics and franking rules always create bottlenecks to carrying them out.  It's very irritating to have a neat project ready to go and be told "I have to ask ethics whether we can host this on an outside website" and then have the project drop because a 55 year old bureaucrat doesn't understand the internet.  The mindset here is similar to the one that called the use of blogs a loophole in campaign finance reform laws and argued for regulating them.  It's regulation for regulation's sake.
So what's behind this?  It's not purely evil, after all, there's a rationale for regulating member use of the web.  Let's go to the source.  Here's how Capuano sees his job.

About a year ago Speaker Nancy Pelosi asked me to Chair the Congressional Commission on Mailing Standards (a.k.a. the Franking Commission), which includes 3 Democrats and 3 Republicans. It is charged with interpreting and applying antiquated House Rules that have been in place for years. They were written to oversee the appropriate use of free postage by Members of Congress when they communicate with their constituents. In general, the rules set forth what is appropriate communication worthy of taxpayer support and what is political in nature and, therefore, should not be funded by the taxpayers but more appropriately paid for with campaign funds.

Now, there are two claims here, and one is much broader than the other. Capuano claims that the Franking Commission is tasked with overseeing the use of free postage.  That is true and reasonable.  However, Capuano claims a more expansive role for the Franking Commission, arguing that the commission sets forth what is "appropriate communication" and what is "political in nature".  The Franking Commission does not really regulate what members say at town hall meetings, it does not regulate what press secretaries say, and it does not really regulate what is said at private meetings during official business.  All of these are areas where members are engaging in communications, but the Franking Commission has little say in them.

So Capuano is arguing, wrongly, that the Franking Commission has a much wider berth than it should.  It should regulate communications via postage, since ordinary citizens do not get free mail service like members of Congress.  Members have an 'unfair advantage' due to capital constraints over ordinary citizens when it comes to postage.  It should not however regulate what the member of Congress sends over email to his son at college.  And it should have an extremely limited say over how members use the web, since members of Congress have no 'unfair advantage' over ordinary citizens on the web.  Members can't solicit campaign funds from their offices, they shouldn't be able to solicit campaign funds from their official email lists.  But aside from that, does the Franking Commission really have a compelling interest in keeping members off Youtube?  Should it even have the authority to compel restrictions, when there has not been any demonstrated problem of corruption via youtube?    

I don't think so.  Nevertheless, the reaction to my initial post has been largely skeptical of my claims.  I understand why.  Conservatives are not trustworthy or credible when they cry censorship from Democrats, but in this case, they are actually correct.  Some people have claimed that I don't understand the issue.  The Massachusetts blog PolitickerMA's Wally Edge snidely remarked about my post "Note to the congressmen: bloggers don't read the three page clarification memos."  He is wrong, and not just because his link is broken.  I did read the clarification.  And here's are the kinds of sites Capuano wants members to use, with my comments in italics:

• Official content posted on an external domain must be clearly identified as produced by a House office for official purposes, and meet existing content rules and regulations;
  
• To the maximum extent possible, the official content should not be posted on a website or page where it may appear with commercial or political information or any other information not in compliance with the House's content guidelines. This requirement does not exist for press secretaries; candidate quotes go on all sorts of commercial news outlets that do not conform to House guidelines.
  
• Any link from a House website to an external site on which the Member video is hosted must contain an exit notice. This is ridiculous and onerous, as any web designer will tell you.  On the internet, a link IS an exit notice.  This rules out reasonably well-done blogs from official sites.
  
• CHA, the Office of Web Assistance (OWA), or other designated House entity should maintain a list of external sites that meet whatever requirements are established by CHA. This is also ridiculous.  The web is a constantly changing environment with new tools and technology popping up all the time.  Why should a small agency within the house keep a list of external sites and tools that members are allowed to use?

Capuano's rationale for establishing these restrictions on the use of the web to communicate with constituents is not unreasonable.  It is however wrong, which is why his specific recommendations turn out to be silly.  Here's his rationale and framing of the fight, wherein he goes after the Republicans crying about censorship.

Apparently the Republicans spreading these lies would rather operate without rules and open the House to commercialism. Maybe they don't care if an official video appears next to a political advertisement for Barack Obama or John McCain, creating the appearance of an endorsement. And I guess they don't care if constituents clicking on their videos will be treated to commercials for anything you can imagine, from the latest Hollywood blockbuster to Viagra. Certainly, advertisements are a reality in today's world and most people can distinguish. However, it is also a reality that Members of Congress who use taxpayer money to communicate with constituents should be held to the highest possible standard of independence - and the appearance of independence.

While appealing at first glance, this rationale quickly falls apart upon further inspection.  Let's take his crusade against commercialization.  I don't like commercials, but the fact is that members of Congress spend official House time to get onto commercial TV stations and newspapers that have commercials for Viagra and Holloywood Blockbusters.  Unless Capuano would like the Franking Commission to forego his appearances on local TV news, this is an unacceptable overreach of the Commission.  It might sound good in theory for members to not use commercialized spaces and so avoid the appearance of independence, but let's be real.  Do you really think that a member updating his Facebook profile with a new video is compromising the dignity of the House or engaging in some form of corrupt abuse of taxpayer dollars?

Of course not.  And this is because members use commercialized spaces all the time, from NBC to ABC to town hall meetings at commercial venues to speeches at businesses and unions, etc.  The web is not just not mail.

I'm sympathetic to Capuano, who is trying to apply rules designed for mail to the internet.  The correct regulatory framework for the internet, however, are rules designed to address Congressmen's interaction in public spaces.  The web is more of a public space than it is a capital intensive direct mail channel barraging constituents with information they may or may not want via expensive tools available only to well-capitalized entities (like Congress).  

While I'm sympathetic though, the reality is that what he is asking for is continued censorship of member interactions with constituents.  That is not only problematic on a moral level, it puts web-savvy politicians and internet activists at a competitive disadvantage.  By making it harder to communicate with activists, lobbyists and politicians that seek to hide things from the public can move with relatively more efficiency.  With these restrictions in place, it's harder for members to do things like put legislation online with video commentary and accept outside feedback, encourage transparency with innovative web tools (since the Franking Commission hasn't approved most of them), and effectively communicate with the outside world when there is furious back and forth negotiating in backrooms.  

Most of what goes on in Congress is opaque to us on the outside.  It is far from reasonable to put forward rules preventing members who want to put more information online about what is going on from doing so.  It's in fact just a holdover from old ways of thinking about the internet.  Perhaps there will be problems with the inappropriate use of the internet by members, but it's far better to allow experimentation and address problems as they crop up rather than ban practices that encourage transparency and participation.  In 2005, good government groups fretted about the use of the internet by corporate groups in elections, but the much dreaded Halliburton blog never in fact appeared.  I suspect something similar will happen with this situation.  In a few years, we'll be doing so much collaborative legislating and video work we won't even understand why members were restricted from any of this stuff in the first place.

For those who want more information about these issues, I strongly encourage you to read The Open House Project blog and report which has focused on these issues for a few years now.