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The Strange Logic of Bradley A. Smith

The big issue in the increasingly ugly argument over the Federal Election Commission's proposed rulemaking on internet communications now seems to be the reach of the "media exemption" for blogs and other online forums. While there are some complicated side issues, such as how to treat blogs that incorporate for liability reasons, the basic debate has been between the view of the Online Coalition, joined by most of the other blogger-commentors, which is that the media exemption from regulation should be broadly presumed available to anyone engaged in media-like activities, which include commentary and analysis of events, even with a viewpoint; and on the other hand, the comments of reform groups and the Insitute for Politics, Democracy and the Internet(IPDI), which worry that too loose a reading of the media exemption spread too broadly will lead to aggressive and costly partisan activity hiding under the cloak of the internet.

I endorsed the Online Coalition comments, abandoning a plan to submit my own. They are reasonable, legally sound, well-written, persuasive, as I noted here. I understand the IPDI concerns, and find the venom directed at IPDI to be disgraceful. Still, I disagree with the IPDI conclusion that the media exemption is a privilege, and that bloggers cannot expect to claim that privilege for their media activity while also engaging in low-level partisan advocacy. I think there has to be a presumption that a site or person is exempt as media at the moment it starts engaging in commentary.

To be clearer -- and neither set of comments specifically address the point in this way -- the media exemption should not be something that a blogger or independent commentor earns over time, but should be a presumption that you start with, and then there should be bright-line, easily understood conditions under which you might lose the exemption, after which your advocacy might fall under regulation as political activities. That might include being fully controlled by a campaign or using the blog largely to raise money for a campaign.

Really, blogs aren't all that unique in the media world. There are older forms of media that also have low barriers to entry and no particular professional structure to regulate them: You can start a weekly newspaper in a small town for very little money, and under existing law it will be presumed to carry the media exemption, even if its editorials are scathingly partisan, its reporting dubious, and all its staff partisan hacks. You can create a syndicated column that combines commentary with strong condemnations or endorsements of candidates, which might get picked up by some papers. And there's no legal barrier to being a campaign contributor, a fundraiser, an advocate, or an adviser to a candidate at the same time. Failing to disclose some of these things might be considered unethical, but it is not the FEC's business to police every interaction between a newspaper, a columnist, or a blogger, and their readers.

Anyway, that's not even my main point. I just wanted to establish that the core choice the FEC has before it is between these two visions of the relationship between media and political advocacy.

Now along comes Bradley A. Smith, a member of that agency and recently its chair, with another one of his interviews with the lobbyist-owned TechCentral Station. If you recall, it was a similar interview in which Smith started the whole "government is going to ban blogs" scare a few months ago.

Smith makes a good argument here for the Online Coalition position. But notice the tone (all the italics are mine):

When we think about who is going to be exempt under the press exemption, I think almost everybody would agree that the big corporations are going to be exempt under press exemption. That is to say that the Washington Post website, well, that's probably exempt. What about Slate, which at one time was owned by Microsoft? Well that's going to be exempt. Why? Because Slate kind of looks and it feels like a newspaper. It comes off the web rather than delivered by paper to my door, but it just has that look and feel and has that kind of sense to it. And then people are going to say, what about maybe a blog such as that run by Glenn Reynolds of InstaPundit or something like that? Well maybe that gets the exemption. But after that it's less clear.

Therefore we are saying if you are a big powerful corporation, we are going to give you a press exemption for your Internet activity, at least if you are a press operation. And as we work down the line we are not going to give you that exemption. As a result you are going to be stifling the activity of the most grassroots, casual type of political action, rather than that of the big press corporation.

It's particularly odd that we would do this in an era in which most of the mainstream press is owned by large corporations.

So we are going to say to those folks, well, if you had the power to own a press outlet you are okay and your website is probably going to be okay as well because you are a newspaper or a radio station or what have you. But we're going to say to the pajama-clad blogger in his basement that he doesn't get the press exemption? It seems to me that's exactly the person who we want to be encouraging to be more involved in politics, the person who should get the exemption there.

I basically agree with his underlying point. It is a sound argument for one side of the choice before the commission. But why does he insist on presenting it as what the FEC "is going to" do? He is a senior member  of that commission! It's his choice to make. And in most recent decisions, Smith has been in a majority.

So, the FEC is not "going to do" anything like this if Smith and his like-minded colleagues prevail. Why does Smith want to make it sound otherwise? He wants to argue that the FEC is forced by the law to make this awful choice, and thus continue to stir up hostility to the underlying law itself. But it is clear from the Online Coalition recommendations, and even from Smith's own answer to the question, "What is the lightest approach the FEC can take?" ("We need to make clear that bloggers are press, these are periodicals and people update them regularly; that the first amendment does not only apply to people who are members of the National Press Club") that the commission is not in any way forced to grant the exemption only to big corporations.

It's a strange mental game that some of these libertarian conservatives can play, sort of a version of Keats's "negative capability": They can be in charge of a government agency, have working control over its decisions, and yet still convince themselves that it is somehow monstrous, oppressive, and external.

UPDATE: Comes word late yesterday (as noted by "fnook" below) that Commissioner Smith has announce his resignation from the FEC, to return to teaching at some law school that I'm tempted to be snotty about never having heard of, but I'll resist that temptation. I'm sure it's a very fine diploma mi, er, I mean instititution of legal scholarship.

Score another hit for the blogosphere! Powerline got Dan Rather, and the power of my impeccable logic brought down Brad Smith! Yes!

Or, I suppose it's possible that he'd already decided to quit, and that explains his sort of third-person reference to the FEC. I guess that's possible. In which case, never mind.

Posted by Mark Schmitt on June 14, 2005 | Permalink


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Very helpful comments Mark. I actually have a good deal of empathy for the Commissioners of the big federal agencies. Mr. Smith just seems to be laying the groundwork for a written decision. From my experience, agency heads love nothing better than to to make it appear as if they've accomodated everyones interests by meeting everyone half-way. I guess the ability to mentally remove oneself from the playing field is critical to maintaining the requisite air of impartiality. As you say, however, it's a strange way to get through the day.

Posted by: fnook | Jun 15, 2005 12:22:42 PM

Smith has resigned, effective August 21, 2005.

Posted by: fnook | Jun 15, 2005 4:12:27 PM

I thought this was helpful. I always check the first blog, however, and came across this:

"The voting public long ago lost most of its faith in Bush; to reinforce that loss of faith it is necessary to tell a story about the Bush presidency, one that rings true, makes sense, and gives people an explanation for their personal and economic anxiety. The basic premise of that story must involve a failure of leadership, and that failure is a story of incompetence."

I'm puzzled that you seemed to think the voting public was so incompetent that they needed some assistance in understanding what they didn't seem to understand. Doesn't show much confidence in us ordinary folk. And isn't that why you guys lost?

Posted by: Norma | Jun 15, 2005 8:15:36 PM

Norma, you're shadow boxing. Nowhere does Mark suggest that "ordinary folk" are incompetent. The incompetence Mark speaks of in your quote is the incompetence and naivete of Bush and his chosen style of leadership. Though Bush got re-elected to a second term, Bush continues to be incompetent and continues to defend the indefensible (What exactly are we doing in Iraq right now and how are we going to finish the job? Why is torture now an accepted American practice). Ordinary folks, including myself and my circle of friends and family, understand this just fine.

Posted by: fnook | Jun 16, 2005 11:19:15 AM

I don't think they will get regulated

Posted by: jr | Jun 17, 2005 11:11:44 PM