Burnt Orange Report

Bloggers To Feel FEC "Wrath?"

By Vince Leibowitz

"Bradley Smith [of the Federal Election Commission] says that the freewheeling days of political blogging and online punditry are over.

Give me a break. Please.

Via Off The Kuff, I found this article which did anything but make me want to run out and hire personal FEC compliance counsel:

In just a few months, he warns, bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's press release to a mailing list, depending on the details, could be punished by fines.

Smith should know. He's one of the six commissioners at the Federal Election Commission, which is beginning the perilous process of extending a controversial 2002 campaign finance law to the Internet.

In 2002, the FEC exempted the Internet by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision. "The commission's exclusion of Internet communications from the coordinated communications regulation severely undermines" the campaign finance law's purposes, Kollar-Kotelly wrote.

Smith and the other two Republican commissioners wanted to appeal the Internet-related sections. But because they couldn't get the three Democrats to go along with them, what Smith describes as a "bizarre" regulatory process now is under way.

Gee. Could they now want to regulate the Blogsphere simply because, uh, so many blogs are progressive and Democrat-leaning? Hummm.

Thanks to McCain-Feingold, which I've never been convinced is just a terribly wonderful piece of legislation because I think it sends more money "underground" than ever before, Smith seems to think Bloggers may not be eligible for the "press exemption" within the law:

The real question is: Would a link to a candidate's page be a problem? If someone sets up a home page and links to their favorite politician, is that a contribution? This is a big deal, if someone has already contributed the legal maximum, or if they're at the disclosure threshold and additional expenditures have to be disclosed under federal law.

Certainly a lot of bloggers are very much out front. Do we give bloggers the press exemption? If we don't give bloggers the press exemption, we have the question of, do we extend this to online-only journals like CNET?

How can the government place a value on a blog that praises some politician? How do we measure that? Design fees, that sort of thing? The FEC did an advisory opinion in the late 1990s (in the Leo Smith case) that I don't think we'd hold to today, saying that if you owned a computer, you'd have to calculate what percentage of the computer cost and electricity went to political advocacy.

It seems absurd, but that's what the commission did. And that's the direction Judge Kollar-Kotelly would have us move in. Line drawing is going to be an inherently very difficult task. And then we'll be pushed to go further. Why can this person do it, but not that person?

How about a hyperlink? Is it worth a penny, or a dollar, to a campaign? I don't know. But I'll tell you this. One thing the commission has argued over, debated, wrestled with, is how to value assistance to a campaign.

So, if a hyperlink is a contribution, what about wearing a campaign tee-shirt or a campaign button? Would I have to divide up the area of my shirt by the space of the button to calculate the cost of the space the button takes up? If I go to Wal-Mart and more people see it, is that worth more? If a fat man wears a campaign tee-shirt, is that a greater contribution because it's more visible than on a baby, for example? If an extoridnarily beautiful woman dons a campaign tee-shirt is that worth more because more men will want to look at her?

Corporations aren't allowed to donate to campaigns. Suppose a corporation devotes 20 minutes of a secretary's time and $30 in postage to sending out letters for an executive. As a result, the campaign raises $35,000. Do we value the violation on the amount of corporate resources actually spent, maybe $40, or the $35,000 actually raised? The commission has usually taken the view that we value it by the amount raised. It's still going to be difficult to value the link, but the value of the link will go up very quickly.

This is totally absurd. Can anyone say (scream) FIRST AMENDMENT PROTECTION? I'd personally volunteer to be a test case for this garbage.

More:

The problem with coordinated activity over the Internet is that it will strike, as a minimum, Internet reporting services.

They're exempt from regulation only because of the press exemption. But people have been arguing that the Internet doesn't fit under the press exemption. It becomes a really complex issue that would strike deep into the heart of the Internet and the bloggers who are writing out there today. (Editor's note: federal law limits the press exemption to a "broadcasting station, newspaper, magazine or other periodical publication." )

There's sensitivity in the commission on this. But remember the commission's decision to exempt the Internet only passed by a 4-2 vote.

This time, we couldn't muster enough votes to appeal the judge's decision. We appealed parts of her decision, but there were only three votes to appeal the Internet part (and we needed four). There seem to be at least three commissioners who like this.

How can the commission not want to exempt the Internet? How is a Weblog any different from a newspaper editorial endorsing a candidate? It's not, except because of the medium by which it is delivered. If they're going to not exempt the Internet, then, in my view, they would have to un-exempt any newspaper that prints editorial endorsements.

Here's a real kicker:

I'd like someone to say that unpaid activity over the Internet is not an expenditure or contribution, or at least activity done by regular Internet journals, to cover sites like CNET, Slate and Salon. Otherwise, it's very likely that the Internet is going to be regulated, and the FEC and Congress will be inundated with e-mails saying, "How dare you do this!"

This is totally stupid. "Activity done by regular Internet journals to cover sites like CNET, Slate and Salon." Clearly, this would be ripe for litigation. Why would BOR or other sites not qualify? Many sites are written by ex-journliats (In the Pink Texas) or have ex-journalists that contribute (this one, me being the ex-journalist). Furthermore, this day and age, what is considered a "regular" Internet journal, and who is a journalist? It's about like defining what the meaning of "is" is. If you report what you see, write a column on something, etc., you are engaging in the practice of journalism, whether you are working for major media or just posting on some little hole in the wall at BlogCity or Blogspot.

It's going to be a battle, and if nobody in Congress is willing to stand up and say, "Keep your hands off of this, and we'll change the statute to make it clear," then I think grassroots Internet activity is in danger. The impact would affect e-mail lists, especially if there's any sense that they're done in coordination with the campaign. If I forward something from the campaign to my personal list of several hundred people, which is a great grassroots activity, that's what we're talking about having to look at.

If no one in Congress is really willing to stand up (and I doubt that), then it's time for the folks on the Hill to grow some cajones. This has got to be nipped in the bud, and quickly.

Q. If Congress doesn't change the law, what kind of activities will the FEC have to target?

A. We're talking about any decision by an individual to put a link (to a political candidate) on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet.

Again, blogging could also get us into issues about online journals and non-online journals. Why should CNET get an exemption but not an informal blog? Why should Salon or Slate get an exemption? Should Nytimes.com and Opinionjournal.com get an exemption but not online sites, just because the newspapers have a print edition as well?

Why wouldn't the news exemption cover bloggers and online media?
Because the statute refers to periodicals or broadcast, and it's not clear the Internet is either of those. Second, because there's no standard for being a blogger, anyone can claim to be one, and we're back to the deregulated Internet that the judge objected to. Also I think some of my colleagues on the commission would be uncomfortable with that kind of blanket exemption.

"The deregulated Internet?" Yes, that's kind of how it is supposed to be, given that, by and large, free speech is deregulated. Consider the irony in this, should Blogs be regulated: It is constitutional to burn a flag in protest, but it is a violation of the law to put a campaign site link on your blog. So, so wrong.

And, how can you get off saying Blogs are neither periodicals or broadcast media? Periodicals are publications updated regularly (blogs), and the Internet sure seems to me to be "broadcast."

Q. So if you're using text that the campaign sends you, and you're reproducing it on your blog or forwarding it to a mailing list, you could be in trouble?

A. Yes. In fact, the regulations are very specific that reproducing a campaign's material is a reproduction for purpose of triggering the law. That'll count as an expenditure that counts against campaign finance law.

This is an incredible thicket. If someone else doesn't take action, for instance in Congress, we're running a real possibility of serious Internet regulation. It's going to be bizarre.

God yes, it's going to be bizarre. Could you imagene the horror at the FEC when two million bloggers start sending in federal spending reports? Seriously, though, this is potentially one of the dumbest things anyone has talked about in a while.

If they're going to consider Blogs as expenditures to count against campaign finance law, then they'll have to make everyone who wears a tee-shirt, puts a bumper sticker on their car, or a yard sign in their yard "count against," too. Clearly, a yard sign and a blog are both free speech. If you're going to say one form "counts" moneywise, then you've got to say the other counts, too--and not just in that the campaign spent the money to print it, but in that someone put it on prominent display in their yard. At least, to me, this is a logical defense against regulation of the Internet.