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March 4, 2005
McCain & Co. Counterattack, But Don't Disclose Previous Interests

Democracy Project notes that the campaign-finance reformers have come out to meet the blogswarm forming around Bradley Smith's revelations about the FEC and their new drive to regulate Internet speech as part of their "reforms". They now claim that Smith overstated the issue, that he has partisan motivations, and that he has always opposed campaign-finance reform anyway.

However, here's what they don't tell you about those who are leading this counterattack:

Let's say you favor, either through conviction or employment demands, the Bipartisan Campaign Reform Act of 2002, commonly known as McCain-Feingold. You're stunned by a blogswarm born of a candid interview one of the commissioners of the FEC grants to an Internet publication. What do you do? Send out a press release written by a man who served on Al Gore's legal team during the Florida recount controversy in 2000, perhaps? A man who's employed by a lobbying firm headed by the former general counsel to Senator John McCain (not that you'll learn that from his official company bio.)? Who is also the former commissioner of the FEC?

Well, perhaps that's not what you would do, but it's what the forces working to ensure that the "reform" of our campaign laws isn't weakened, and that it indeed will be applied to the Internet, in fact did. I'm sure I wasn't the only blogger who, having posted yesterday on FEC Commissioner Bradley Smith's interview with CNET, received a press release, "Setting the Record Straight: There is No FEC Threat to the Internet," late last night from Mark Glaze (more below). The stated purpose of the release is to deny the validity of Commissioner Smith's charges that, thanks to McCain-Feingold, the FEC may be forced to regulate blogging. It does anything but that, however, and in the process accuses Bradley Smith of distorting the truth, an act that, outside of Washington, is known as lying[.]

One of the organizations pushing for the BCRA (McCain-Feingold) is the Campaign Legal Center, headed by Trevor Potter and fronted by PR spokesperson Mark Glaze, who ran Al Gore's recount efforts in Florida. They support their argument by pushing people to read the court decision in Shays, Meehan v FEC (PDF file), which they claim as proof that the BCRA has no effect on Internet speech. However, in just skimming the document, I found this relevant passage:

As already noted, Congress did not expressly include the term Internet in its statutory definition of public communication, but it did include the phrase any other form of general public political advertising. 2 U.S.C. 431(22). While all Internet communications do not fall within this descriptive phrase, some clearly do. Consequently, it is difficult to argue that the statutory terms evidence Congressional intent for the Internet, or any other forms of communications that constitute general public political advertising, to be excluded wholesale from its definition of public communication. ...

Accordingly, the Court finds that under Chevron step one, Congress intended all other forms of general public political advertising to be covered by the term public communication. What constitutes general public political advertising in the world of the Internet is a matter for the FEC to determine [emphasis mine].

This appears to leave the field wide open for the FEC to determine what kinds of speech on the Internet fall under its domain. The same thing appears to apply in regard to defining "coordination" as this passage implies:

As discussed supra, when Congress repealed the coordination regulations, it did so out of concern that the definition of coordination in the then-existing rules was too limited in the types of conduct necessary to render a communication to be coordinated. The fact that the legislative history contains no discussion about the content of such communications is not surprising, since, as explained supra, under the existing campaign finance law and judicial precedent interpreting that law, a communications content was irrelevant to the determination of whether or not a communication was coordinated. Indeed, the whole rationale behind the distinction made for coordinated expenditures is that if a candidate or political party coordinates an expenditure with an outside person or entity, that expenditure is presumed to be aimed at assisting that candidate or political party. To allow such expenditures to be made unregulated would permit rampant circumvention of the campaign finance laws and foster corruption or the appearance of corruption.

So you can run afoul of coordination bans simply by conducting speech that looks like it was coordinated -- in other words, the burden of proof is on the accused and not the accuser.

The opinion gets rather arcane, but the word "blog" and "journal" are nowhere found in this opinion. It appears to me that the judge's action leaves the FEC lots of room to define "campaign activity" and "coordination", and that the intent is to force the burden of proof onto the accused. Certainly nothing in this decision that strips the Internet exemption from BCRA protects us. The reformers would have us trust the FEC not to use the powers handed to it to regulate us in the future, a gamble I for one am not willing to take.

The BCRA is bad law, unconstitutional, and an unconscionable infringement on free political speech. My objections still stand.

UPDATE: Paul Rodriguez interviewed FEC Commissioner Bradley Smith on Rightalk. Here's a link to the audio, which I have not yet heard. Also check out an excellent post by Mike Krempansky at Redstate.org. Trevor appears to be talking out of both sides of his mouth on this issue.

UPDATE II: Do we have a lawyer in the house who has some election-law experience to review this decision? I'd be happy to post their thoughts on it.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at March 4, 2005 3:51 PM

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