« John Cornyn Has Robert Byrd's Number | Main | An Open Letter To The United States Senate »
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 communication’s 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 View blog reactionsTrackback Pings
TrackBack URL for this entry is
Listed below are links to weblogs that reference McCain & Co. Counterattack, But Don't Disclose Previous Interests:
» Freedom To Blog? from FullosseousFlap's Dental Blog
UpDate #2: Democracy Project has a great piece on the role of Senator McCain and his former staff and their influence in the FEC Commissioner Bradley Smith affair.
But, what no one has discussed is McCain's relationship with other members of the FEC... [Read More]
Tracked on March 4, 2005 10:10 PM
» The devil is in the details: the Internet was designed for collaboration thus it is inherently a prime target for McCain-Feingold from Blind Mind's Eye
The Democracy Project has a very good smack down of the shill who came to McCain's defense. There is just one point that I am surprised that the Democracy Project didn't realize the significance of in the Campaign Legal Center's... [Read More]
Tracked on March 4, 2005 10:43 PM
» McCain-Feingold Supporters Say "Nothing To Fear" from Wizbang
Which of course any nominally paranoid person should immediately recognizes as a giant red flag! Don't be fooled by the assertions that the 2004 elections were a free for all on the internet. From personal experience I know that at... [Read More]
Tracked on March 5, 2005 12:36 AM
» FEC to limit personal political speech? from No Illusions
Until a ruling last fall, Internet speech has been exempt from the restrictions of the McCain-Feingold Act. The three Democrats on the six-member FEC want to change that. Potential speech limitations that could be justified under the Act take u... [Read More]
Tracked on March 5, 2005 5:01 AM
» Beldar to FEC: Bring It On! from BeldarBlog
The blogosphere (e.g., InstaPundit, Power Line, Michelle Malkin, Prof. Bainbridge, Red State, La Shawn Barber, The Democracy Project, etc.) is abuzz with worries that the Federal Election Commission, per a decision of a single federal district judge, m... [Read More]
Tracked on March 5, 2005 11:49 AM
» Wizbang Bombs Potter from ProfessorBainbridge.com
Kevin Aylward blasts Trevor Potter for obscuring the McCainiacs' effort to force the FEC to regulate blogs:Via Captain Ed and Democracy Project comes word that Trevor Potter's PR firm, which is denying that there's any threat to bloggers, have longstan... [Read More]
Tracked on March 5, 2005 10:49 PM
» McCain-Feingold Has Dire Consequences For Blogs from A Bellandean! God, Country, Heritage
I first heard of the implications of McCain-Feingold on Captain's Quarters just last week. This has disturbing freedom of speech implications for blogs and political speech in general. [Read More]
Tracked on March 7, 2005 9:34 PM
» lawyer information from lawyer information
lawyer information [Read More]
Tracked on March 26, 2006 9:52 AM
captain*at*captainsquartersblog.com
My Other Blog!
E-Mail/Comment/Trackback Policy
Comment Moderation Policy - Please Read!
Skin The Site
Hugh Hewitt
Captain's Quarters
Fraters Libertas
Lileks
Power Line
SCSU Scholars
Shot In The Dark
Northern Alliance Radio Network
Northern Alliance Live Streaming!
Des Moines Register
International Herald Tribune
The Weekly Standard
Drudge Report
Reason
The New Republic
AP News (Yahoo! Headlines)
Washington Post
Guardian Unlimited (UK)
New York Times
Los Angeles Times
OpinionJournal
Pioneer Press
Minneapolis Star-Tribune
MS-NBC
Fox News
CNN
Design & Skinning by:
m2 web studios
blog advertising
- dave on Another National Health Care System Horror Story
- brooklyn on Hillary Not Hsu Happy
- rbj on Hillary Not Hsu Happy
- Robin S on Requiem For A Betrayed Hero
- Ken on Hillary Not Hsu Happy
- Robin S. on Requiem For A Betrayed Hero
- RBMN on Hillary Not Hsu Happy
- NoDonkey on Another National Health Care System Horror Story
- Robin Munn on Fred Thompson Interview Transcript
- filistro on When Exactly Did Art Die?