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Campaign Finance Reform Comes to Blogging
Posted by: Dale Franks on Thursday, March 03, 2005

Did you like what the blogoshpere added to the 2004 election? Well, don't get used to it.
Bradley Smith says that the freewheeling days of political blogging and online punditry are over.

In just a few months, he warns, bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's press release to a mailing list, depending on the details, could be punished by fines.

Smith should know. He's one of the six commissioners at the Federal Election Commission, which is beginning the perilous process of extending a controversial 2002 campaign finance law to the Internet.
And this is a serious threat. Linking to a candidate's web site could trigger FEC scrutiny and fines of a blog. Reproducing part of a candidate's email mass mailings--even to fisk it--would invite FEC scrutiny.

Words fail me

Actually, that's not true. I just wanted to get the post up first, since it was something I thought was important, then return to, as the politicians say, revise and extend my remarks.

The most striking thing about the McCain-Fiengold nonstrosity is that, while it carves out an exemption for broadcast and print news sources, web-based news services are not, in fact, benficiaries of the exemption. So, what do you do with a real news service like CNet, that operates entirely online, but is a generally recognized news outlet.

They exist in a gray area.

Blogs do, too. The law implies that, in the last 60 days or so of an election, the New York Times or CBS can publish with impunity. Non-traditional media, as the law now stands, must cease political reporting or other activities of any kind that supports a particular candidate. If they do not, they are liable to FEC fines for, well, publishing their political opinions, under the theory that to do so is to give an in-kind contribution to a candidate.

So, the Washington Post has free speech, but QandO does not, once you cross that time threshold prior to the election.

Now, let's say that Congress grants an exemption to online news sources. So CNet is now safe, but what about QandO?

My view is that QandO is a legitimate news source. We provide news aggregation from all the AP and Reuters wire services. In addition, we provide aggregation of regional and world news, along with content from news periodicals and journals from all over the world. Moreover, we are listed in Google News as a legitimate news source.

To my mind, that means that if CNet gets an exemption, so does QandO, even if, at the end of the day, our original comment is all opinion, while our news content is syndicated.

At least, that's what our lawyers will argue when the FEC comes after us.

Still, even if that weren't true, my inclination would be to publish anyway and tell the FEC to be damned. Because in a very real sense, what McCain-Feingold does is provide an explicit prohibion to free speech to anyone who isn't part of a recognized news media outlet. George Bush signed it into law, and the Supreme Court, apparently being unable to find any support for the concept of free speech in the rulings of the Supreme Judicial Court of Upper Volta, declined to strike down the prior restraint to free speech that McCain-Feingold implements.

All three branches of the US government decided, for reasons known only to them, that the First Amendment doesn't actually mean what the text appears to mean. Unless we can convince Congress to repeal McCain-Feingold, free speech will essentially be dead in this country.

As one of the commenters to the original article wrote, I long for America's return.

UPDATE [Jon Henke]: It seems all three of us were working on this story. I'll append my piece here.

So, they want a fight, do they?

Bradley Smith questions whether the government should "give bloggers the press exemption" -- that is, whether the law should allow untrammelled free speech from mere citizens regarding candidates and elections; whether "we have to regulate e-mail"; and whether the FCC should target "any decision by an individual to put a link (to a political candidate) on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet.".

It's a bit hard to tell from the interview the extent and likelihood of these eventualities, but if such a thing came to pass, I suspect there would be such a mass insurrection -- such widespread civil disobedience -- that the laws would never be able to keep up with the speech. Nevertheless, if the FEC does regulate blogs, they--and any politician supporting such a decision--can expect a subversive and coordinated campaign for an immediate end to their career in government. I'm in.

James Joyner calls this "the idiocy of McCain-Feingold", while Mike Krempasky calls that bill "the most glaring example of political cowardice of [the Bush] administration".

You've done enough, Mr. McCain, Feingold and Bush. Have you no sense of decency, sirs, at long last? Have you left no sense of decency?

UPDATE [McQ]: OK, I'm moving my piece on this same story here. Seems we were all working on the same thing and the guy in CA got it up first. Go figure (what the hell you doing up early working on something like this Dale? ;))

So, now the last part of the trifecta.

McCain's Bastard Step-Child and the Law of Unintended Consequences

Or are they unintended? Ask John McCain coauthor of the egregious McCain-Finegold "campaign finance reform" legislation:
Bradley Smith says that the freewheeling days of political blogging and online punditry are over.

In just a few months, he warns, bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's press release to a mailing list, depending on the details, could be punished by fines.
Bradley Smith, in case you're wondering, is a member of the Federal Election Commission. Now I'm not sure how much of Smith's warning will actually come true, but its certainly worth looking at what's going on if for no other reasons than to appreciate the consequences poorly thought out and crafted legislation such as that McCain and Finegold have given us.

Why is this presently being contemplated? Because of our wonderfully bipartisan approach to the work of the people, of course:
In 2002, the FEC exempted the Internet by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision. "The commission's exclusion of Internet communications from the coordinated communications regulation severely undermines" the campaign finance law's purposes, Kollar-Kotelly wrote.

Smith and the other two Republican commissioners wanted to appeal the Internet-related sections. But because they couldn't get the three Democrats to go along with them, what Smith describes as a "bizarre" regulatory process now is under way.
How bizarre? Well feast your eyes at some of the questions and ideas being bandied about:
The real question is: Would a link to a candidate's page be a problem? If someone sets up a home page and links to their favorite politician, is that a contribution? This is a big deal, if someone has already contributed the legal maximum, or if they're at the disclosure threshold and additional expenditures have to be disclosed under federal law.

Certainly a lot of bloggers are very much out front. Do we give bloggers the press exemption? If we don't give bloggers the press exemption, we have the question of, do we extend this to online-only journals like CNET?
Wait a minute. Aren't we getting perilously close to a free speech issue here? Where's the FEC's authority to assign a value to a link? Is a link a contribution or a type of speech?
 
Then there's the "press exemption". Uh, no thanks. I'm not the press. I'm a guy out here exercising his right to free speech, Mr. McCain and FEC.

So, asks CNET, how can the government, in the guise of the FEC, really put an amount or value on a blog that praises a politician?
How do we measure that? Design fees, that sort of thing? The FEC did an advisory opinion in the late 1990s (in the Leo Smith case) that I don't think we'd hold to today, saying that if you owned a computer, you'd have to calculate what percentage of the computer cost and electricity went to political advocacy.

It seems absurd, but that's what the commission did. And that's the direction Judge Kollar-Kotelly would have us move in. Line drawing is going to be an inherently very difficult task. And then we'll be pushed to go further. Why can this person do it, but not that person?
My computer was free, and it doesn't use much electricity. Amazing. Do we get a credit if we bash a politician that we can apply toward those we might praise?

Is this about as loony as it gets, or what?

What's the value of a hyperlink?
I don't know. But I'll tell you this. One thing the commission has argued over, debated, wrestled with, is how to value assistance to a campaign.

Corporations aren't allowed to donate to campaigns. Suppose a corporation devotes 20 minutes of a secretary's time and $30 in postage to sending out letters for an executive. As a result, the campaign raises $35,000. Do we value the violation on the amount of corporate resources actually spent, maybe $40, or the $35,000 actually raised? The commission has usually taken the view that we value it by the amount raised. It's still going to be difficult to value the link, but the value of the link will go up very quickly.
With Instapundit much more than QandO. So maybe we could be the discount linker. Instapundit could link to us when we've linked to the pol. How much would that cost Glenn?

Smith is asked then, what the real impact of the judges decsion might be:
The judge's decision is in no way limited to ads. She says that any coordinated activity over the Internet would need to be regulated, as a minimum. The problem with coordinated activity over the Internet is that it will strike, as a minimum, Internet reporting services.

They're exempt from regulation only because of the press exemption. But people have been arguing that the Internet doesn't fit under the press exemption. It becomes a really complex issue that would strike deep into the heart of the Internet and the bloggers who are writing out there today. (Editor's note: federal law limits the press exemption to a "broadcasting station, newspaper, magazine or other periodical publication." )
"Any coordinated activity over the internet would need to be regulated, at a minimum." Its not only going to strike "internet reporting services", or blogging if implemented. Are you listening MoveOn.com? George Soros?

And yes, its true, bloggers don't fit under the press exemption (see CNET editor's note). Nor do many internet based "activity coordinators" such as MoveOn.com.

So, how's it breaking out?
There's sensitivity in the commission on this. But remember the commission's decision to exempt the Internet only passed by a 4-2 vote.

This time, we couldn't muster enough votes to appeal the judge's decision. We appealed parts of her decision, but there were only three votes to appeal the Internet part (and we needed four). There seem to be at least three commissioners who like this.
Any guess as to the party of those three? Answered in the next question: "Is this a partisan issue":
Yes, it is at this time. But I always point out that partisan splits tend to reflect ideology rather than party. I don't think the Democratic commissioners are sitting around saying that the Internet is working to the advantage of the Republicans.

One of the reasons it's a good time to (fix this) now is you don't know who's benefiting. Both the Democrats and Republicans used the Internet very effectively in the last campaign.
Yes and no. In Tim Dickson's Rolling Stone piece about MoveOn.com he notes:
They signed up 500,000 supporters with an Internet petition -- but Bill Clinton still got impeached. They organized 6,000 candlelight vigils worldwide -- but the U.S. still invaded Iraq. They raised $60 million from 500,000 donors to air countless ads and get out the vote in the battle-ground states -- but George Bush still whupped John Kerry. A gambler with a string of bets this bad might call it a night. But MoveOn.org just keeps doubling down.
So effectiveness is in the eye of the beholder, and perhaps those for controlling the internet see this as a means of countering what they perceive as a right-wing advantage, among others (talk radio, etc). Maybe they think this is a way to "level the playing field" which is totally consistent with their ideology.

What's next?
It's going to be a battle, and if nobody in Congress is willing to stand up and say, "Keep your hands off of this, and we'll change the statute to make it clear," then I think grassroots Internet activity is in danger. The impact would affect e-mail lists, especially if there's any sense that they're done in coordination with the campaign. If I forward something from the campaign to my personal list of several hundred people, which is a great grassroots activity, that's what we're talking about having to look at.

Senators McCain and Feingold have argued that we have to regulate the Internet, that we have to regulate e-mail. They sued us in court over this and they won.
Regulate email? Regulate the internet? Sued and won?

Yes. What's being argued here is bloggers could be considered "independent advertisers" and be restricted from linking and promoting a candidate or candidates within the 60 day window of an election. As for the email reference, I would assume what is being argued here is mass emails which again promote a candidate or candidates within that same window.

Again, in my book, a freedom of speech issue as it applies to bloggers.

So what happens if Congress doesn't wake up and smell the coffee?
We're talking about any decision by an individual to put a link (to a political candidate) on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet.

Again, blogging could also get us into issues about online journals and non-online journals. Why should CNET get an exemption but not an informal blog? Why should Salon or Slate get an exemption? Should Nytimes.com and Opinionjournal.com get an exemption but not online sites, just because the newspapers have a print edition as well?
Bottom line: what if you used the text a campaign sends you, reproduce it on your blog and send it in an email. Trouble?
Yes. In fact, the regulations are very specific that reproducing a campaign's material is a reproduction for purpose of triggering the law. That'll count as an expenditure that counts against campaign finance law.

This is an incredible thicket. If someone else doesn't take action, for instance in Congress, we're running a real possibility of serious Internet regulation. It's going to be bizarre.
Nah, really?

Can you say "quagmire"?

For once the word really applies. And, of course, then there's the problem of enforcement, not to mention the real threat of massive civil disobedience (which, quite frankly, I'd relish).

Thanks John McCain.
 
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Previous Comments to this Post 

Comments
How interesting that the MSM appears to love Senator McCain. I wonder why.
 
Written By: Mark
URL: http://
How is the action of a blogger quoting a press release and siting that release any different from the quotation by a print journalist? I’m not sure that this is as big a deal as it initially appears.
 
Written By: Curt Mitchell
URL: http://
Perhaps could get all the political bloggers in the ecosphere, dem, gop, libertarian, etc, to post something the same day during a campaign. Give the FEC a fit.
 
Written By: William Teach
URL: http://piratescove.typepad.com/piratescove
How is the action of a blogger quoting a press release and siting that release any different from the quotation by a print journalist?
Because the law itself makes a distinction between a print journalist and a blogger. If you’re a print journalist, the law exempts you from its provisions. It’s different because the law says it’s different.
 
Written By: Dale Franks
URL: http://www.qando.net
Try these words:

Politicians are colossal jackasses who invariably cause more harm than good.
 
Written By: David Andersen
URL: http://
Holy shit. Just, holy shit. I will steadfastly refuse to adhere to anything like this. I will blog triple time and link to all candidates. I will send emails to friends, families, etc.

And I will let my congressman & senators know that not only will they not receive my vote but I will actively campaign against them if they vote for any part of this.

Oddly enough, I will become a criminal in this society. This is a direct assault on free speech and Republicans, Democrats, Libertarians, and even Communists should ban together to kill this idea.
 
Written By: Sharp as a Marble
URL: http://sharpmarbles.stufftoread.com
And I will let my congressman & senators know that not only will they not receive my vote but I will actively campaign against them if they vote for any part of this.
SaaM, they already did vote for it. That is the problem.
 
Written By: Crusader
URL: http://www.coalitionoftheswilling.net/
This is a pretty silly attempt to stifle free speech - one can only hope the SCOTUS agrees. However, *paid* punditry, where a blogger is receiving money directly from a political party on whatever pretext, should be subject to whatever limits and rules apply to advertising. Sadly, that’s not what the FEC has in mind.
 
Written By: Skorj
URL: http://
Hold the phone here a minute. As I understand it, Blogs are simply private citizens who are disseminating their own opinions for the reading and debating pleasure of their readers. No offense guys, but hardly a news organization.

Seems to me that if the McFiengold bill contains the power to penalize bloggers, that the govenment could come after any private citizen who sends along a link to a political site to a friend or relative.

Even if this is the intent ot the law, It doesn’t sound like it would hold up under scrutiny.
 
Written By: S.
URL: http://
I hope this is the thing that gets this law thrown out.
 
Written By: Crusader
URL: http://www.coalitionoftheswilling.net/
Seems to me that if the McFiengold bill contains the power to penalize bloggers, that the govenment could come after any private citizen who sends along a link to a political site to a friend or relative.

Seems a logical end, doesn’t it?

Even if this is the intent ot the law, It doesn’t sound like it would hold up under scrutiny.

Maybe, maybe not ... it has, to this point, been sanctioned by the judge cited in the story.
 
Written By: McQ
URL: http://www.qando.net/
However, *paid* punditry, where a blogger is receiving money directly from a political party on whatever pretext, should be subject to whatever limits and rules apply to advertising.

Personally Skorj, I don’t think any of this is any of the government’s damn business to begin with.
 
Written By: McQ
URL: http://www.qando.net/
This is going to be no sweat at all. Let ’em try it.

They’ll be ass-deep in criminals so fast that they won’t know whether to shit or place a bet.

I, for one, hope they push the thing as hard as they can. We will not have seen the rotten bastards looking so foolish in one big worthless lump in all our lives, and the country can use the illustration.

"Bring it on."
 
Written By: Billy Beck
URL: http://www.two--four.net/weblog.php
Skorj: However, *paid* punditry, where a blogger is receiving money directly from a political party on whatever pretext, should be subject to whatever limits and rules apply to advertising.

McQ: Personally Skorj, I don’t think any of this is any of the government’s damn business to begin with
.

I’m not sure we disagree here, certainly I agree that recent campaing finance reform steps all over free speech. I’m just saying that - given the current law, silly as it may be - there’s a fundamental difference between a blogger expressing his political opinion as any citizen should be free to do, and a blogger who’s instead selling advertising space to a political party (whether it’s in the banners or the punditry).

The latter is no different from a billboard or TV spot. Maybe the government has no business regulating either, but I wouldn’t be upset of all of the political ads mysteriously vanished come the next campaign. Man that was annoying in Florida last time around.

 
Written By: Skorj
URL: http://
They’ll be ass-deep in criminals so fast that they won’t know whether to shit or place a bet.
By god, I think we may have found the impetus for Billy to finally support a politician....if only with his website, and in order to defy the FEC.

Along those lines, I really wish I had thought of this in time for this past election. I could have made a mint: Yard signs and bumper stickers saying: "None of the Above - ’04!"

I may still do that in ’08, depending...
 
Written By: Jon Henke
URL: http://www.QandO.net

 
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