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.