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Could the "Daschle v. Thune" blog be regulated?

One question that has come up in the comments about the FEC and blogs is whether the Daschle v. Thune blog, whose operator turns out to have been paid by the Thune campaign, could potentially be regulated. Last night, in an e-mail exchange with a reporter, I said that Daschle v. Thune was probably the only kind of blog that there was even a remote possibility of regulating, under the most maximal regulatory scheme possible. Thinking about it more, I'm not even sure that's possible.

Remember that even when dealing with television ads or paid internet advertising, the only issue is coordination. Even buying ads that expressly advocate voting for a candidate would not regulated as an in-kind contribution subject to limits unless it was coordinated with the campaign.

So Daschle v. Thune is the rare case of a blog that appears to have been seriously coordinating with the campaign. The payments are evidence of coordination. On the other hand, the fact of the payment means that the Thune campaign paid for the blog with hard (that is, regulated) campaign money. That's how we know about it, because it appeared in their campaign reports. So if the campaign was really paying for the blog, then the bloggers were vendors, not contributors. There is an ethical problem here -- probably one that can also be found in the commercial world -- but not a campaign finance problem. If the bloggers were paid for some other service  to the campaign, they could still be doing the blog without any coordination with the campaign. And even if it was coordinated with the campaign, and it was just a blog that people reached by choosing to go to the Daschle v Thune blog, I don't see how it could be regulated as a form of advertising, because it's not.

Someone else asked me to say more definitively that McCain-Feingold didn't require or permit regulation of blogs linking to campaign web sites, rather than talk mostly about Brad Smith's motivation. Sorry, I should have done that: McCain-Feingold does not require regulation of links on blogs, or any other activity by independent bloggers.. No member of the FEC, including Smith, has said that they favor such regulation, including Smith. If this changed and  they did enact a regulation that went so far as to treat links on a blog as a campaign contribution, a court would throw it out, on either statutory or constitutional grounds.

On MyDD, Jerome Armstrong links to a very definitive press release from Mark Glaze of the Campaign Legal Center, and a book chapter on political communication and the internet by Trevor Potter, himself a former FEC chair. (I knew Trevor had written something on this recently, but I hadn't been able to find it yesterday.) Jerome remains unconvinced:

this has everything to do with coordination. Whatever regulations are placed upon advertising and soft money online, there must be no regulation whatsoever that would prevent or restrict any form of coordination between bloggers and campaigns. To create barriers to such coordination would effectively destroy online, networked, grassroots political action on behalf of political candidates, parties, and committees. This is the second pillar of netroots action, and the pillar that currently distinguishes the left wing netroots from the right wing netroots.

He's right that coordination is the only potential basis for regulating any internet communications. But after that, I have no idea what he's talking about. Coordination is the key that distinguishes the left wing from the right on grassroots/netroots activity?? I think it's exactly the opposite, as with the Daschle v. Thune example and certainly the Swift Boats. I don't know everything that went on last year, but I think there's very little, if anything, that Kos or Jerome did that would meet any reasonable definition of coordination with campaigns. They were sometimes trying to echo campaigns, and help them as outsiders, and drive people to the campaign sites, but that's not coordination. And I'm sure people talked to each other. But that was also a very minor part of their appeal. Strategizing together with the campaign about the text of an ad, and then blasting that ad all over the internet, would be coordination. But that's not blogging, that's something else.

It is very tempting, as one gets into the paradoxes raised by trying to limit the influence of money in politics without limiting speech, to want to throw out the whole thing. Maybe Brad Smith had a point all along. And I confess, I've been working on campaign finance reform issues for almost ten years now, and there are many moments when I feel this way. It's not an insane position. But bloggers should ask themselves: Have you written anything about Tom DeLay? Are you glad to hear that his bagmen are on trial? Do you think he belongs in jail too?  If you answered yes, then perhaps you don't want to live in a world where anything goes in the world of money and politics.

Posted by Mark Schmitt on March 5, 2005 | Permalink

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Comments

Your analysis is right on. The bloggers were paid with hard money--its a campaign advertisement without a disclaimer. Although there might be a problem with whatever requires the candidate to say "my name is John Thune and I approved this message."

As for what Jerome is talking about--well, he seems to say that coordination is OK, as long as the Left is doing it.

My partisan side says sure, there is a difference--but my understanding of the law is, well the rules have to apply to everyone. I think the line mightg have to be drawn at hosting. Remember, what is being bought with a TV buy is the right to use the stations' equipment to broadcast the message. Similarly, if Richard Mellon Scaife bought server space and time and sold it at a discount or gave it away to volunteer bloggers on the condition that the bloggers then said only good things about the Jeb-Condi ticket in 2008--that's probably coordination. It isn't the words that are really being regulated--it is their distribution.

Here is where the real nexus of the problem is. In Lowell v. Griffin (1938) the Supreme Court held that restraints on distribution were the same, in essence, as restraints in content.

But in contrast, Buckley v. Vallejo and McConnell both held contribution limits constitutional, because they were only a marginal restriction on the ability to get a message out.

But the key difference between blogs and the spending on TV ads that McCain-Feingold was designed to stop have to play a role in future analysis here. The problem with TV is its prohibitive cost and the relatively few outlets involved make real the possiblity that one person could buy up all the TV time in order to influence the election.

In contrast, the Internet allows access by anyone, to any message for very low costs. The danger cited in Buckley--that the needs of the modern campaign could create an atmosphere where a quid pro quo might be a big problem just don't exist. People can go where they want, read what they want, and aren't forced to read a blog. In the end, this is why blogs should not be regulated. Their authors lack the ability to make people read them--a fact I face daily.

The same cannot be said for a pop up ad, by the way. Anything we could do to ban those is welcome.

Posted by: Rob W | Mar 6, 2005 12:23:55 AM

Rob, if memory serves, this particular case wasn't just "without a disclaimer"; those guys swore up and down they were independent.

For what it's worth, I do think that blogging has a lower cost of entry than TV ads, but a _paid_ blogger can spend a lot more time researching, writing... the chances of putting out a better internet presence than a blog done out of spare time is higher, all else being equal.

Posted by: ArC | Mar 6, 2005 5:36:36 AM

My point exactly. I don't know what the laws are regarding those disclaimers--but they might have been in violation. But that is a different law than the regulations regarding coordination of expenditures.

Posted by: Rob W | Mar 6, 2005 1:15:09 PM

Not claiming to be an expert about campaign finance or election law, but couldn't political bloggers avoid all this hassle to begin with if we ourselves chose to reveal all of our connections with campaigns? Why not tell your (not speaking specifically about The Decembrist) readers that you're a paid consultant for a campaign or that you're accepting money for running campaign ads or that you've met with campaign officials but have no official connection to a campaign. I think we should have a blogger code of ethics. If not, then eventually as more & more campaigns attempt to replicate the Thune strategy the discourse of ALL political blogs would threaten to become devalued.

And if the larger political blogs had some sort of code in place, then those sleazy blogoids which attempted to go the Thune bloggers route woud be discredited because likely they'd refuse to be transparent (as these 2 bloggers did) when most everyone else was.

My name is linked to my post on this subject.

Posted by: Richard Silverstein | Mar 6, 2005 11:55:31 PM

Interesting take on blogs vs. TV. The right of government to regulate broadcasting because of the limited spectrum is long established. It is wrong, but established, although one wonders why newspapers are not so regulated as well because of the extraordinary cost of entry into local newspaper markets. Campaign finance law is NOT regulation of broadcasting. It is regulation of the expression of political opinion. Instead of regulating the expression of political opinion, Congress could have brought back the fairness doctrine requiring broadcasters to give equal access to candidates; but it chose not to. Now Congress have created a mess. The rise of 527s and weblogs ably demonstrated that money and opinion will find a way around attempts to regulate them. Given that, why not just regulate ALL political speech and be done with all the litigation. Oh yeah, I forgot; that would cause unemployment amongst lawyers and pundits. Can't have that can we?

Posted by: jimbo | Mar 7, 2005 5:19:25 AM

Jimbo,
It is regulation of campaign spending, nothing more nothing less. Now the spending is linked to getting a message out, but it does not ban any particular speech, but only limits the amount of money any one person may donate to a campaign. A campaign is free to raise what it likes, but a person may only donate $2000 in hard money to any one campaign. Donating money does not limit the free speech of the donor, it only limits the donor's ability to contribute to a campaign.

Does is serve to limit campaign spending by candidates? You bet. Is that a limitation on free speech by the donor. No.

Posted by: Rob W | Mar 7, 2005 12:45:05 PM

Mark Schmitt,
That was a post by Chris Bowers, not by myself. Here's what I have written regarding coordination:
---------------------
The other area the ruling impacts is that of coordinated communications regulations. The FEC had excluded internet communications from any regulation of coordinated communications. The ruling says this "violates" and "undermines" the law, and that "if a candidate or political party coordinates an expenditure with an outside person or entity, that expenditure is presumed to be aimed at assisting... [and] to allow such expenditures to be made unregulated would permit rampant circomvention of the campaign fianance laws and foster corruption or the appearance of corruption." An "expenditure" includes "anything of value made by any person for the purpose of influencing..."

Those two issues that the FEC now has to deliniate upon, advertising and expenditures, are where the questions need to be asked. People say, "well, we need to make sure Karl Rove can't coordinate with the Swift Boats again," but coordination means nothing without a medium of expression. That expression is through advertising and expenditures, and no matter what law comes out of that, blogs are going to fall under it's sway (we Democratic partisan blogs coordinated "value" with candidates and the Party extensively). We need to come up with examples and circumstances that show just how convoluted and confusing the idea of including the internet within regulation of coordination becomes once is moves into the expression of advertising and expenditures of value (I just looked over my last 10 frontpage posts, and found that I'd "coordinated" communications of value on 4 of them). As for advertising, regulation of "paid advertising" isn't the problem, but once the regulation becomes "general public political advertising" that can arguably include in-kind contributions like graphics, statements, even links say that say "go contribute".
------------------------

So, coordination in and of itself means very little, it's the term "of value" that is problematic. Look, websites out there pay for links all over the place, we bloggers give them away for free, as just one example.

So, some say, have the FEC declare that a link in and of itself is not of value. Well then, what the hell are the advertisers paying for?

In effect, you'll be creating a whole new alter-reality on the internet, which is a farce.

Posted by: Jerome Armstrong | Mar 7, 2005 1:57:59 PM

The other point, way more difficult to transcend with more CFR imo, is that Thune maintains that he was not paying the bloggers for their blogging, but for their research. And the contention is, that this research was delivered to the campaign outside of the blogging medium.

The only coordination then would have been that a couple of Thune staffers happened to also run a blog on the side. Now I know that's a stretch, but its pretty solid too.

And to reach that, you'll have to enter into the area of regulating bloggers.

Posted by: Jerome Armstrong | Mar 7, 2005 2:05:15 PM

Jerome,

I think your analysis is off point, for the reason that the category in which the judge ruled potential internet communciations to fall under in the law was "general political public advertising" Thus the coordination must fit into that category before it can be counted as coordination of expenses.

I think that what most bloggers do is not advertising but advocacy. However, I do think that paid ads or paid content provided directly by the campaign and used unmodified is coordination and should be covered under the law.

But any level of comment on the materials by the blog writer and First Amendment activity is implicated--remember that in Buckley, donations were not speech because it was the act of donation that was considered the speech and the amount of donation added little or nothing to the act of speaking. Should comment be included, that is political speech in all of its glory. Its a good argument and one that might be able to fly in a court of law. (Disclaimer: This is a comment relating to political issues surrounding campaign finance reform and should not be considered legal advice. Seek an attorney for such advice.)

Posted by: Rob W | Mar 7, 2005 4:25:06 PM