The Daily Whim
Fair and Unbalanced
Thu. Mar 03, 2005
Crackdown or Scare Tactics?
There are some who’d have us believe that political blogging is about face serious government regulation.
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.
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.
CNET News.com: “The coming crackdown on blogging”
I’m not sure if this is a legitimate warning, or partisan scare tactics: “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.” Yeah, could be Red-Blue collateral damage. Nonetheless, it’s worth a moment to consider. But you need to read the whole thing and judge for yourself. I’m just going to address parts of it.
Commissioner Smith: “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?”
OK, so don’t give bloggers a press exemption. Then it becomes a simple matter of individual free speech. If I contribute the $2,000 maximum to My Favorite Candidate, I am still legally allowed to volunteer for that campaign, stuff envelopes, man the phone banks … and go door-to-door advocating them to the public. As part of an organized effort to materially benefit that candidate.
Why can’t I also go on the web as a private individual, espouse my personal political opinion, and link the candidates I support? Is that not advocacy, free speech, and well outside any organized activity by the campaign? Back during the primaries, I spent some brief time at this site advocating the candidacy of John Edwards. I never had any contact with a single soul who worked for the campaign, paid or volunteer. I did not contribute even one dollar to him. He simply got my vote, and my advocacy.
If that is to become somehow illegal, then stop calling me an American. Because we’ve become something else.
And if you argue that such a blogger is making a legal contribution to the campaign that must be counted as a contribution, well, how many links equals two thousand dollars? Better yet, how many links from Instapundit or DailyKos equals two thousand dollars, versus how many links from little ol’ me equals two thousand dollars? The numbers are vastly different. Impossible to quantify in any sane manner.
Want to bet someone is going to try anyway?
Smith: “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.’)”
If the Internet does not fit the press exemption, then will you fine washingtonpost.com for a link to a campaign within a story? Because that link didn’t exist in their printed page. And what about Yahoo, adding links within AP stories that include links to campaigns? Or how about Salon, Slate, and C|Net, which have no print version at all?
It’s a very slippery slope to start down, yet I see little evidence that the Internet has suddenly perverted the Innocence of Politics. If anything, it’s quite the opposite.
When asked what he would like to see happen, Smith mumbles: “I’d like someone to say that unpaid activity over the Internet is not an expenditure or contribution, or at least activity done by regular Internet journals, to cover sites like CNET, Slate and Salon. Otherwise, it’s very likely that the Internet is going to be regulated, and the FEC and Congress will be inundated with e-mails saying, ‘How dare you do this!’”
You’d like to see someone “say that unpaid activity over the Internet is not an expenditure”? OK, I’ll say it. Won’t change a damn thing. What Commissioner Smith should have said is that Congress needs to revisit the vague language they placed in the 2002 reform law (it’s Smith’s type of vague language that got us here), and either specifically exclude the Internet in a way no judge can deny, or tell us all we’re going to be fined for free political speech on the Internet.
At least that way we have a handle … our elected representatives. How is the public going to influence the FEC, if this is left to them to judge? They’ve clearly got a 3-3 partisan split … or else we wouldn’t even hear about it. No, let’s drop it in the lap of those guys with their fingers in the wind, and then blow damn hard.
Because though Commissioner Smith says “the FEC and Congress will be inundated with e-mails saying, ‘How dare you do this’,” that is the least of his worries. He needs to figure out how his commission is going to monitor 8,000,000+ blogs for compliance to any changed law. He needs to figure out how he’s going to prosecute and fine the thousands of bloggers who will either unknowingly or deliberately disobey any changed law. He needs to reconsider the level of online “civil disobedience” such changes would guarantee, and thus, the effectiveness of any proposed change.
But perhaps most of all, he needs to remember that though he admits this is a partisan issue, in the end, it won’t be Republicans versus Democrats. It will be the People versus the Politicians.
Want to guess who will prevail?
Whether it was Trent Lott or Dan Rather, Jeff “Gannon” or Eason Jordan, I’ve always frowned upon the gloating in the aftermath of “bloggers taking heads.” But I can promise you that I’ll be the first seeking scalps, should this prove to be more than a partisan delusion.
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The decision of Judge Kollar-Kotelly (quite a good judge) does not make it terribly hard to figure out what regulations would meet the statutory requirements. http://www.fec.gov/pages/bcra/shays_meehan_mem_opinion_dc.pdf
(Check out the discussion starting at the bottom of page 48.)
As for Commissioner Smith’s predictions: I’m consistently amazed by the ability of a losing litigant to deliberately fail to understand the rationale behind a decision. You want to see obtuse? Explain to somebody why they’re wrong. Better yet, explain to them that they are not only wrong, but could only have reached their decision from pure laziness.
The sky is not falling. Laws deal with much more nuanced problems all the time without bringing society to a grinding hault. Mr. Smith should be forced to retire, not because he’s radical, but because he doesn’t appear to be competent to deal with the challenges of campaign finance law.
I got an idea: Emcee Fleshy for FEC Commissioner!
I’ve even got a slogan: Failed MC for Successful FEC!
I don’t see that many elected officials “get” either the Internet or blogs. Blogs are citizens standing on the street talking- folks like Glenn Reynolds are standing there saying “that person has something cool to say”. Kos is the guy who has rented out the grange hall for community discussion. Blogs though are not journalists in the traditional sense of the word and I don’t think that they should be conflated as such.
“Failed MC for Successful FEC!”
Well, you’ve got my vote. And I hope you’re right about this being blown out of proportion. But when you say “Laws deal with much more nuanced problems all the time” I can’t help but think … we’re talking about Congress here. And the problem here is that the wording of their law was so vague to begin with.
Meanwhile, Sen. Ted Stevens is yapping about applying FCC broadcast standards to cable and satellite broadcasts, claiming it’s the government’s right and duty.
So I’m not as reassured as you that our government won’t try to intrude and control in new and unacceptable ways. Keyword: try. There’s been a lot of talk about this one around the web today. In that respect, I think it serves its purpose; “don’t even think about going there…”
I just have to laugh at this kind of talk. It’s not 1985, when they could have strangled this interweb thing in it’s cradle.
On the other hand—sure, go ahead and send out 8MM citations for FEC violations. I’ll have my fine money waiting right here.
On somebody else’s hand—don’t give the critters any ideas about building a new gubmint agancy to monitor those 8MM blogs. Chritalmighty…they don’t need any encouragement.
The problem with the law is not how the FCC is going to track 8MM blogs. The problem is that if this ruling stands, then 8MM blogs will be in violation – and it’s within the state’s prerogative to prosecute or not.
So what have you been saying about the local police department/prosecutor lately? Anything nasty?
If by some chance this sort of regulation came to fruition, would this not increase the nature of the CFR’s infringement on the First Amendment and lead to a reassesment by SCOTUS regarding the “overriding government interest” test?
Mesh, I’m just a simple man, but it seems pretty clear to me. The First Amendment to the Constitution states that Congress shall make no law infringing upon the citizen’s right to freedom of speech.
How else would one describe this?
If a Senator or Representative tells me I can’t advocate a candidate, or link to them, or quote and discuss their policies on one particular medium (simply because it’s the one you have the least control over), then that CongressCritter is no longer “defending and upholding” the US Constitution.
Therefore, if you are a Congressperson, and you support this interpretation of the law, you have violated your oath of office.
Mark Schmitt has it right : Smith is just trying to get frightened political bloggers on his side against Kollar-Kotelly and McCain-Feingold. And an amazing number of people are falling for it.
Of course, it’s possible that he may take it a step further and actually put in action what he’s threatening. At which point it’s extremely likely that some non-idiot judge will make the distinction that he’s claiming doesn’t exist, and he’ll look like a fool.
The article you link kinda makes some of the very same points I do above.
In fact, Mark starts with an article headline a bit more sensationalist than mine: “Will the FEC Ban Blogging?”
You mean the FEC will ban me from blogging about the Olsen twins?
It seems to me that the problem, from the original law Congress passed, to Smith’s interview, all the way to Mark’s headline … is vague language. More specificity is needed, and that’s what Mark implies Smith may be saying (and what I said above):
Alternatively, Smith’s comments can be read as a plea for some help from Congress. Forgetting that he is an ideological opponent of all regulation and treating him merely as an earnest bureaucrat trying to do his job, he is basically complaining that Congress punted on the Internet issues (true) and that they should provide some definition, lest his agency be forced to do it for them.
is linking to a candidate’s web site in the course of a blog post, which might be favorable, unfavorable, or neither, a kind of contribution? Of course not, but what Smith is saying is that they don’t really have any guidance from Congress that would allow them to exempt it … Clearly, this is an issue that Congress should deal with and should have dealt with in McCain-Feingold. These are big policy choices that an agency should not be expected to make in the course of writing regulations.
As I said from the beginning, this issue does indeed seem filled with partisan intent.
Please point me to one that isn’t…
Meaning, this is still an issue. Not an immediate threat demanding a march on DC. But an issue worthy of discussion on many levels. Because it’s not only political, it’s corporate : “In court filings the company argued that the Web sites were not protected by free speech because they are not legitimate members of the press.”
There seems to be more and more “groups” wanting to muzzle or silence the web sites of individuals. And it’s easy to say, “this is pure scare tactics, and on top of that, it’s The Other Guy complaining.” It’s easy to say “Apple is nothing but puppy dogs and butterflies, and has never done anything to me.” But I was always impressed by a poem that is now considered a worn cliche. And at the risk of self-invoking Godwin’s Law…
First they came for the Jews
and I did not speak out —
because I was not a Jew.
Then they came for the communists
and I did not speak out —
because I was not a communist.
Then they came for the trade unionists
and I did not speak out —
because I was not a trade unionist.
Then they came for me —
and there was no one left to speak out for me.
If I see someone moving a little to close to the edge of this thing we call “freedom of speech,” I’m inclined to say “hey, don’t even think about it” ... rather than later have to say “stop trampling.”
Do I believe that in the next few weeks the FEC is going to author some outrageous ruling that will ban you and me from linking Our Favorite Candidate? No.
Do I see any harm in firing a rhetorical warning shot across the bow of a potential intrusion on free speech? No. In fact, I’ll pull the trigger.