The FEC and Blogs
Jeff Tuttle has an interesting article in the BDN today on the possibility of increased regulation of the internet in the interests of campaign finance reform. I am quoted in the article and so is Simon Dodd of OlympiaSnowe2008.com.
...mainepolitics.blogspot.com - and thousands of similar sites around the country - could be forced to undergo drastic changes resulting from a federal judge's ruling that campaign finance laws should be extended to the Internet.
The changes, which will be considered by the Federal Election Commission this month, potentially could mean fines to sites that improperly link to official campaign sites or forward candidates' press releases to its members.
While the threat of this kind of draconian regulation is scary, it doesn't seem to be a very likely scenario. The whole hubbub over this issue began when Bradley Smith, a hard-right republican FEC commissioner and opponent of McCain-Feingold gave an interview with CNet news and laid out a vision of the future in which forwarding an email from a political campaign to your friends would be an illegal contribution.
The Campaign Legal Center, a public interest group focusing on campaign and media regulations responded with a press release yesterday titled "Setting the Record Straight: There is No FEC Threat to the Internet".
Commissioner Brad Smith claimed that as a result of new campaign laws and and a recent court decision, online news organizations and bloggers may soon wake up to find their activities regulated by government bureaucrats. That would indeed be troubling, if it were true. Fortunately, Mr. Smith - an avowed opponent of most campaign finance regulation - is simply wrong.
The issue the FEC - and the courts - are grappling with is how to deal with online political ads by candidates and parties, and with paid advertising that is coordinated with those groups. As the Internet becomes a vital new force in politics, we are simply going through a natural transition as we work out how, and when, to apply longstanding campaign finance principles - designed to fight corruption - to political expenditures on the Web. Mr. Smith has advocated an extreme position that politicians, parties and outside groups can pay for Internet advertising with "soft money" - unlimited, unregulated checks from corporations, labor unions and wealthy individuals. A federal court rightly rejected that position, saying that the new ban on soft money in our elections obviously applies to Internet advertising, too.
These laws are decidedly NOT aimed at online press, commentary or blogs, and the Bipartisan Campaign Reform Act of 2002 was carefully drafted to exclude them.
MyDD has a more in-depth discussion here.
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posted by @ 1:22 PM 
3 comments
3 Comments:
At first glance, this sort of play looks so black-and-white unconstitutional that there have been a couple of commentaries in the blogosphere (one of which is noted by Josh Marshall over at Talking Points Memo ) that suggest it's all just an attempt to tarnish the McCain-Feingold act's reputation in the public imagination. However, most of those commentaries have played the FEC as the villain of the peice, while in fact it was the Judge - who we'll all remember, I think, as the same judge who effectively ruled that Microsoft was not a monopoly a few years back - who put the issue into play.
I'm watching this carefully at the moment. If they (the FEC) ever take action as described, I suspect it would almost instantly result in a bipartisan (keeping in mind that both Conservatives and liberals have made the web their home from home) 1st amendment lawsuit going to USSC - which, of course, is exactly what the more conspiracy-minded bloggers are suggesting is the idea: it's a chance to put McCain-Feingold back to the court. The value of doing so, however, is unclear, givne that the court's makeup hasn't changed since the last time it considered the law.
Perhaps it's more a way of highlighting to the public how difficult it is to balance campaign finance reform against freedom of speech? Certainly at least one of the parties has shown its willingness to engage in very long-range projects to subtly alter the context of public debate. Who knows.
I'm particularly interested in how this is going to affect operations like the one I started. For example, the three domain names we (Snowe '08) own amount to $30 in charges per anum - under the proposal, it seems as if that would constitute a $30 soft money donation to Sen. Snowe's (currently non-existent) election campaign. If we have to buy ourselves a nice, shiny new server this fall, to host the website, the campaign volunteer toolset and the database, is that an $1800 contribution to Sen. Snowe? And if so, whose - mine? Snowe08's, as an aggregate entity? How do you begin to work out what the material value of a server that will still exist when the campaign is over, and will still be the property of an entity entirely separate to Sen. Snowe or her office(s)? How does one factor in the sharp depreciation rate of technology capital goods when calculating their value? How does one asses the actual value of the services being provided relative to the capital investment to provide it?
Now here's another scenario. A friend of mine in the UK is a green, so let's say that he decides to do for Ralph Nader more or less what I'm doing for Sen. Snowe. He buys ralphnader2008.com, builds a website, and buys the same server. Now, under the scenario I described above, the FEC rules would indicate that he's just made a $2k+ contribution to Ralphie - but wait a second, here! My friend isn't a US citizen, and he doesn't even LIVE in the US! In that scenario, how does one asses value? He can't legally make contributions to US election campaigns, yet he can make efforts to materially affect their outcome.
The sheer logistics of regulating the internet seem to doom this proposal from the get-go. That's not to say that they aren't going to try, because they might - but it is to say that it won't work. It's an attempt to apply national policy tools to an infrastructure which is inherently and necessarily oblivious to national boundaries, and thus it's doomed to failure.
Posted by Simon Dodd
You're completely correct, Simon. Even if this kind of regulation was being pushed for, and a huge wave of public opinion didn't stop it from passing, there's no way it could possibly be policed.
What if I set up a website and endorse a candidate that I actually disagree with? If that "contribution" is ruled illegal, does the candidate's campaign get fined?
I haven't invested any money or anything of value into Maine Politics beyond my own labor. Does that mean a link from here would be considered worth nothing or a link from Snowe'08 worth $30?
Campaign Finance Reform is meant to diminish the disproportionate direct impact that wealthy corporations, groups, and individuals can have on elections. On the internet, however, wealth doesn't translate directly into influence. Anyone can set up shop and state their opinions on a relatively level playing field, therefore the need for such strict regulation for the most part doesn't exist.
That's not to say that there shouldn't be more regulation on some of the more clear-cut issues. For instance, I am a bit wary of the fact that internet ads can currently be paid for with unlimited amounts of soft money.
I'd like to note that Simon's favorite Senator has been a leader in fighting for BCRA and other campaign finance reform.
Posted by Mike
Yes, if I'd known Jeff was going to print any of the comments I'd made, I would have included a quote from Sen. Snowe on the matter.
Apropos:
"I believe we have an obligation to rid the system even of perceived corruption. Any perception that the laws we pass here are somehow tainted only serves to undermine confidence in the system, and ultimately, in citizen participation in the process."
Better late than never, huh? ;) I might have to write a letter to the editor.
http://www.olympiasnowe2008.com/pub/issues/reform.asp
Posted by Simon Dodd