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FEC and Blog Disclosure

Having been one of the voices loudly dismissing the claim that the Federal Election Commission would regulate bloggers, I have to say that Mike Krempasky has a very strong point in his response to Chris Nolan and more specifically to Rick Hasen. Hasen had argued in a thoughtful and anti-alarmist Findlaw column that if blogs were 100% exempt from regulation, they risked eroding the longstanding prohibition against corporate and union money supporting political campaigns. Hasen urges bloggers to accept at least a disclosure requirement, similar to the disclosures that Kos and Jerome Armstrong made of their work for Dean, and that the Daschle v. Thune bloggers did not make of their payments from Thune.

I proposed something similar as a kind of code of ethics for blogs. But if Hasen is talking about an FEC-enforced law or regulation, then Krempasky is absolutely right when he says this would require "serious regulatory surgery" because, "Under the current law, the FEC does not have the authority to force ANYONE to disclose payments from the receiving end, the onus for disclosure rests with the entity writing the check. To ask bloggers to do so would actually place a higher regulatory burden on them than anyone else in the political universe." (The FEC did not propose such a rule, although it did raise the question.)

It would also be very difficult to justify such a regulation under the current legal regime governing campaign finance. Even after the Supreme Court ruling upholding BCRA, preventing corruption or the appearance of corruption by elected officials is the only justification for regulating campaign contributions or other activities. But that's corruption of elected officials, not of bloggers or reporters or anyone else. If a blogger is getting paid by a campaign, or if Joe Klein is being paid by a campaign, or if either one is volunteering for a campaign on the side and also writing about it, they should disclose that. But "should" and "should be required by the FEC" are two different things. We assume that Klein (name picked at random) is not a problem because he operates within a structure that has certain professional guidelines and its his boss's responsibility to enforce commonsense ethics. But bloggers (as well as independent columnists like Bush administration flacks Maggie Gallagher, Armstrong Williams, and the third guy I'd never heard of) operate in some isolation from those structures of enforcement.

Still, that's not an election law problem. It's a problem on the same order as a supposedly independent technology blogger or columnist being paid by Microsoft, which I'm sure is the kind of problem that is already coming up and will come up more often.

It also doesn't really deal with the issue that Hasen is trying to solve, which is blogs being used as a vehicle for illegal corporate or union promotion of a federal candidate. There the problem is not the blogger being paid by the campaign, but being paid by someone else and encouraged to influence politics. But that's a hard one to enforce, if there's no actual nexis to a campaign. Still, some cases will be obvious -- if a union hires someone and asks them to do nothing but start a blog focused on promoting a particular candidate, that's a significant electioneering activity.

My own view, increasingly, is that the FEC should try to find some line based on the passivity or activity of the communication. Yes, pop-up ads are no different from TV ads, hitting the unsuspecting voter over the head. But everyone who reads a blog has gone to that blog for a reason (even if accidental, as I know some percentage of my hits are). It may be deceptive -- that is, I may think that some blog is a neutral observer but it is actually a rabid partisan -- but that's a pretty minor concern compared to, say, several million dollars of unanswered negative ads from a mysterious source. Maybe I should try to formulate this idea into a formal comment to the FEC on its proposed rulemaking.

If Hasen is right that unless the FEC imposes some such disclosure requirement on blogs, then a giant loophole will open up, it's a good illustration of the tangled web that the limits-based approach to campaign finance weaves, with each attempt to close down a loophole opening up a new one. Perhaps we have reached the limit of limits and need to find a new way to think about speech, money and politics, one that focuses on making sure that all candidates can be heard.

As an afterthought, it is interesting that campaign finance regulations in the U.S. are so focused on donations and not at all on the disbursement of funds. Not only is campaign spending totally unregulated except for some basic disclosure, there are none of the resources such as the Center for Responsive Politics to help analyze how campaigns spend their money. That's in sharp contrast to most other countries, which typically have stronger central parties, and where spending by the parties is the main issue in campaign reform, especially spending to influence the media. I recently read a paper put out by the anti-corruption group Transparency International on monitoring campaign finance in Argentina, and was asked to review it's applicability to other countries. It was hard to evaluate because the issues that it was looking at were so completely different from the contribution/corruption issues we focus on here. We could use a little more attention to the disbursement side here, even if the U.S. will never have the legal tools to regulate spending.

Posted by Mark Schmitt on April 14, 2005 | Permalink

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Comments

define "blog"

Posted by: praktike | Apr 14, 2005 10:18:24 AM

"Perhaps we have reached the limit of limits and need to find a new way to think about speech, money and politics, one that focuses on making sure that all candidates can be heard."

What's the answer?

Free TV time? Aggressive matching along the line of the NYC and Arizona laws?

Posted by: Petey | Apr 14, 2005 5:03:21 PM

The answer is concentrating on demand, not supply.

Posted by: David Weman | Apr 14, 2005 6:47:26 PM

I have an ongoing semantic dispute with Hasen about him saying "disclosure" when he means "disclaimer". The semantic dispute is tied to a legal one. Disclosure, in the election law context, means filing forms with a regulatory agency, here the FEC. Disclaimers are part of the text itself, a regulation of the content of the blog. It is possible, but misleading, to use disclosure in larger sense that would include disclaimers, but would also include, for example, coerced confessions, revealing trade secrets, and other not so nice activities.
Posner points out that disclaimers don't really disclaim anything, so it's a bad label, but he went on to confuse disclaimer regulations, unconstitutional under Talley v California, with disclosure regulations, constitutional under Valeo and McConnell.
That was in Majors v Abell [majors.blogspot.com for more.]
Since AO 1998-22, the FEC has been attempting to compel disclaimers on blogs, but doing so is in conflict with cases such as ACLU v Reno, ACLU v Johnson, Ala v Pataki, EFF of Georgia v Miller, which say that there is a right to be anonymous on the internet.
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http://ballots.blogspot.com

Posted by: arbitrary aardvark | Apr 14, 2005 11:17:11 PM

We already have the legal tools to regulate campaign spending...the FCC. The reason candidates and parties are tawdry money-grubbers, the reason they are desperate to sell their souls to the highest bidder, is that they want to buy air time for commercials. The vast majority of money raised gets spent on broadcast commercials. If you eliminate their ability to purchase air time, you eliminate much of the campaign finance problem. The FCC should ban the sale of broadcast air time to political candidates, just as cigarette commercials are banned. The reason this has not been done, and the reason nobody even discusses it, is evidently that few in DC are serious about campaign finance reform.

Posted by: smintheus | Apr 18, 2005 10:18:58 PM

It was hard to evaluate because the issues that it was looking at were so completely different from the contribution/corruption issues we focus on here.

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