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Will the FEC Ban Blogging?

I've been encouraged to comment on this interview with Bradley Smith, chair of the Federal Election Commission, in which he suggests that the agency might have to regulate blogging as a form of political spending. Before I got a chance to write a comment, I noticed -- via Josh Marshall -- this blog post contending simply that Brad Smith is a liar.

That's mostly right. Even without calling him a liar, it's enough to note that Smith, a Trent Lott appointee to the commission, opposes all campaign finance reform and the very existence of the agency that he chairs and that pays his salary. If he says that the FEC might have to regulate bloggers linking to campaign web sites, it's certainly not because he wants to or thinks the FEC should regulate such activity, or any other. It's because he wants to make the argument that the current trend in regulation might lead to that point. And he would find it useful in his own deregulatory campaign to get the internet activists worked up about a threat to them (us). He's not saying this because the FEC is actually about to enact this regulation.

This is reminiscent of those "Congress is about to tax the internet" scares of a few years ago.

Two points of context: Smith's argument here is clearly with Federal Judge Colleen Kollar-Kotelly. And his fight with her is about far more than just internet communications. Over the past two years, first a Smith-led majority on the FEC gutted the major provisions of McCain-Feingold while ostensibly writing regulations to enforce them, then a 3-judge panel that included Kollar-Kotelly upheld the law, and then Kollar-Kotelly ruled that the FEC had overstepped its bounds in writing regulations that in some cases altered the language of the statute. The ruling that the FEC's broad internet exemption was not justified by the law was part of a much broader rejection of the agency's attempt to rewrite the law. Smith is arguing here that if Kollar-Kotelly's view that the FEC can't rewrite the law prevails, the results will be that bloggers will be restricted.

And if that gets bloggers charged up to call their members of Congress and attack the FEC, that's fine. It all serves Smith's interest in getting rid of the agency and the laws it enforces.

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.

And that is fair enough. As the internet becomes more and more a mainstream channel of political communication, it cannot be left totally unregulated. And regulation here does not mean banning it, but determining what should be treated as a political contribution, and what should be treated as an independent activity. If you buy a list of 1,000,000 e-mail addresses and send them verbatim Bush campaign literature, that has to be treated as an in-kind contribution to the campaign. Likewise if you buy pop-up ads on popular sites with the candidate's slogans, that would be an in-kind contribution.

(The reason I referred to "verbatim campaign literature" and "the candidate's slogans" is because those would both indicate coordination with the campaign itself. That is the only issue here. If there is no coordination, then your actions as an individual are entirely unlimited. Not only can you blog as much as you want about the greatness of George Bush, you can even buy an ad in USA Today to make your argument, or buy an ad in the middle of the CBS Evening News. If you are not incorporated and collecting contributions, and you are not coordinating with the campaign, there is no issue here at all.)

On the other hand, 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. If it's not the media exemption, which cannot really apply to purely partisan sites such as, oh, let's use Mr. Guckert's former employer as an example, then what is the legal basis on which they can 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.

Zephyr Teachout, formerly of the Dean campaign, had some thoughts on this that she developed for a talk at Duke Law School. Her argument that the FEC should worry about small-potatoes coordination less, and more on transparency and encouraging small contributions, is a good one, but as Judge Kollar-Kotelly's smackdown points out, it is not up to the agency to decide which parts of the law to enforce. So some of Teachout's argument is really addressed to Congress, and to the campaign finance reform movement.

My own view, which I should probably work out at length somewhere else, is that the internet poses some challenges for regulation because the form of communication it embodies can be so different from ordinary political communication. Our system of regulating campaign finances doesn't say much about how the money is spent, but let's face it: it's about the TV age. It assumes that the influence of money comes from bombarding a couch potato with 30-second, unanswered blasts, which might be vicious attacks or soft positive ads. (Mail, radio, and robo-calls are also part of the concern, but in all cases they are one-way broadcast-like communications.) To the extent that communication on the internet takes a similar form (pop-up ads, for example), it should be subject to the same regulation.

On the other hand, to the extent that communication is two-way, and that people are obtaining information voluntarily, and they can verify and look more deeply into claims and counter-claims, I think that form of communication is very different and may call for a different kind of regulation. But this is not something that has really been dealt with or envisioned in campaign finance law before, and it's not something the FEC can deal with on its own.

But in the short term: Don't worry about it.

Posted by Mark Schmitt on March 4, 2005 | Permalink

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Comments

Mark, I couldn't agree with you more. I've expanded my look at Smith's assertions regarding the Shays decision and he is definitely full of it. She leaves the decision as to what will be considered general political advertising on the Internet to none other than Bradley Smith and his fellow Commissioners on the FEC.

So when he tells us that he'll be "forced" to shut down political blogging--you know he's about as honest as Bush is every time he claims that he's powerless with Congress.

Posted by: Rob W | Mar 4, 2005 6:11:43 PM

Just as devil's advocate: how should the FEC deal with astroturfed blogs like the Thune-sponsored anti-Daschle ones?

Posted by: ArC | Mar 4, 2005 8:05:28 PM

What's next?

A tax on one's political views, followed by a tax on one personal views and opinions?

How far will people allow them to go?

Sounds like we're in the third grade and we're being told what to do each second of our lives.

Posted by: Movie Guy | Mar 4, 2005 11:02:15 PM

Actually, I would worry about it. I take it as a threat. The FEC is going to write "wrecker" regulations. Kollar-Kotelly struck down their attempt to be King Log, so they're going to try to be King Stork.

As a matter of law, blogs ought to be OK. There is a "press exemption" in McCain-Feingold which covers all periodical publications. It doesn't distinguish between media. Tapped should share The American Prospect's exemption. There's no bright line between Tapped and Matt Yglesias's personal blog. There's no bright line between Matt and, say, Atrios.

But just because the law should be read that way doesn't mean it will be. It seems to me that someone should try to involve the EFF.

Posted by: jim | Mar 5, 2005 9:58:37 AM

For this administration to even threaten blog regulation is the height (or low) of hypocracy.

Posted by: argus | Mar 5, 2005 12:26:54 PM

I'd rather hear that this can't be done, or that, following logically from the existing regulations, it won't be done, than hear someone say "Oh don't worry, it's all just the ravings of that crazy deregulatory zealot." It's not the best form of argumentation, and it's certainly not the most reassuring one, to be told that Thing X can't be true simply because the person who asserted it may have an ulterior motive for doing so. If that were true, we would have to discount everything that's been said on Social Security for the last five months by either side. Paul Krugman? Why, he's a liberal! You can't trust his numbers.

In other words: don't wave Brad Smith around and tell me not to worry. Show me that McCain-Feingold - and the current legal interpretation of McCain-Feingold - doesn't allow for the kind of link regulation Smith is talking about.

Posted by: Nimoy With A Hammer | Mar 5, 2005 1:35:07 PM

McCain-Feingold does not allow for the kind of link regulation that
Smith talked about. Period. The only reason to "wave Smith around" and
talk about his underlying philosophy is to answer the question, "why
would the chair of the FEC say that, then?"

Posted by: Mark Schmitt | Mar 5, 2005 3:13:17 PM

This is an interesting tactic... a lot of liberal bloggers are having terrified walls-crushing-in feelings after the election (some mixture of paranoia and justified apprehension, I think), and Smith seems to be trying to exploit that.

I expect the NRA to try to tap into this, too; I wouldn't be surprised if they try to make a big reach across the aisle to sell guns to scared Democrats.

Posted by: Matt McIrvin | Mar 5, 2005 4:56:30 PM

The real point is that whatever regulations are put in place will not be uniformly enforced.

Posted by: Frank Wilhoit | Mar 5, 2005 9:24:07 PM

The FEC didn't rewrite the law in regards to their not regulating the internet. Go read the law, find the point where the internet is included, its not:

--------
Shays-Meehan (the House equivalent of McCain-Fiengold) basically argued that, even though the internet was explicitly excluded from the group of 8 public communication mediums adressed, because it wasn't specifically excluded from the tagged on language, it should now be included in the regulation-- a classic end-around of the legislative body through the judicial body.

Congress deliberately excluded the internet from the communications listed (broadcast, cable, satellite, newspaper, magazine, outdoor, mailing, telephone) because the bill would have failed if the internet were included.

But included within the definition of "public communication" is the phrase "any other form of general political advertising", and that's the loophole through which Shays-Meehan argued for internet regulation. BCRA "contains no per se exclusion from the definition" of a "public communication", therefore, "any other" applies to the internet.

From there, the ruling leapt to:
...Congress intended all other forms of "general public political advertising" to be covered by the term "public communication". What constitutes "general public political advertising" in the world of the internet is a matter for the FEC to determine.
-------------

As for Smith, I have found him to be very non-partisan on the issue.

Posted by: Jerome Armstrong | Mar 7, 2005 2:32:31 PM

""why would the chair of the FEC say that, then?"

Because a "link" is value, and that's what Smith is pointing out.

Posted by: Jerome Armstrong | Mar 7, 2005 2:34:52 PM

Jerome - I prefer this quote from the ruling. I think it sums up it up pretty well.

As already noted, Congress did not expressly include the term “Internet” in its statutory
definition of “public communication,” but it did include the phrase “any other form of general
public political advertising.” While all Internet communications do not fall
within this descriptive phrase, some clearly do. Consequently, it is difficult to argue that the
statutory terms evidence Congressional intent for the Internet, or any other forms of
communications that constitute “general public political advertising,” to be excluded wholesale
from its definition of “public communication.”

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