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.