The New York Times reported the ongoing controversy over the FEC's requirement to regulate political speech over the Internet, heavily borrowing from Bradley Smith's C-NET interview and the rebuttal from the Democratic commissioners. However, their rebuttals did not explicitly rule out regulation, and in fact Ellen Weintraub's comments leave enough loophole room for a Mack truck.

Anne Kornblut covers the outlines of the controversy but provides little analysis, allowing the dueling commissioners to define the problem:

Anyone who decides to "set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet" could be subject to Federal Election Commission regulation, Bradley A. Smith, a Republican commissioner, said in an interview posted Thursday on the technology news site Cnet.com.

"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," said Mr. Smith, who opposed regulating Internet activity when the commission originally addressed it in 2002. ...

"People should not be alarmed," said Ellen L. Weintraub, a Democratic commissioner.

"Given the impact of the Internet," Ms. Weintraub said, "I think we have to take a look at whether there are aspects of that that ought to be subject to the regulations. But again, I don't want this issue to get overblown. Because I really don't think, at the end of the day, this commission is going to do anything that affects what somebody sitting at home, on their home computer, does."

Weintraub wants people to relax, but that argument won't fly. Having the authority to regulate the speech in the first place is what has us worried, and if Weintraub chooses not to use it, that's fine. However, a precedent has been set that the FEC has that ability to determine whether online pamphleteering equates to campaign contributions -- and notice that she's careful not to eliminate that as a possible end solution.

In fact, the commissioners told the New York Times that they would likely debate that very idea:

Commissioners said they could consider several questions, including whether political Web sites are technically coordinating with official campaigns by posting links to a candidate's Web site, and whether partisan bloggers are making in-kind contributions by donating their expertise and computer equipment to a campaign.

By law, contributions over $1,000 or services of an equivalent value must be made public. Individuals are permitted to volunteer their time, and there is an exemption for newspapers, broadcast networks, magazines and other periodicals. It is unclear whether political news sites would meet the exemption requirements for the news media, or whether the F.E.C. would go beyond regulating simple Internet advertisements bought by the campaigns. ...

"One really good question that needs to be asked is, 'How do you value this stuff?' " she said. "Because we only track money - campaign money that people spend on campaigns - not their thoughts or their beliefs or their statements. Just when they spend money. So if something is done really cheaply, it's not going to rise to the level where it will meet our regulations anyway."

The Republican commissioners interviewed agreed that it would be difficult to place a value on most political activity conducted online, and thus to determine whether it fell under the campaign contribution limits. "If you have a very successful blogger who attracts a lot of attention based on the commentary he or she is undertaking, and maybe that activity is coordinated with a candidate, what is the value of that?" said Michael E. Toner, the third Republican member of the commission.

So to answer the Campaign Legal Center's advice for all of us to stop worrying and trust Big Brother, the commissioners all appear to acknowledge that they can and probably will consider the value of links, reposts, and recommendations, especially by the larger bloggers. In fact, logically they have little choice, thanks to the BCRA.

John McCain and Russ Feingold insisted when they drafted and pushed this legislation that money did not equal speech, and they wanted to get the money out of the system. The Internet actually does a better job of that, providing a cheap resource which reaches vast numbers of people, with very little start-up cash required. The surprise came when MoveOn and Howard Dean turned that into an ATM machine for their campaigns with small donors giving money in droves. The blogs spawned allied blogs, or existing blogs volunteered, in essence, by linking and promoting the campaign blog sites and their messages.

That, in turn, drove even more traffic to the campaign blogs and created virtual grassroots networks on the Internet -- but hardly from active coordination. What it amounted to was a pixilated word-of-mouth system, simply people speaking their minds and offering their opinion, analyses, and endorsements as citizens freely expressing their own political beliefs. But to John McCain and Russ Feingold, seeing such a freely operating system of debate represented a threat to the system of regulation they carefully built to protect incumbencies, political party leadership, and the mass media's exemptions from regulation and their unchallenged power in the final days of electoral campaigns to get in the last word.

How does the FEC propose to separate the campaigners from the individuals working from home? They don't even realize that the campaigners work from home now. Scalpels don't exist that could cut through the distinctions necessary to differentiate from a Blogs for Bush and a Captain's Quarters -- and in fact, since I happened to write for both sites during the election, I would certainly be one of their targets, as would all of my co-bloggers at B4B.

Do not make the mistake of allowing Weintraub's soothing responses fool you, although she may well be sincere about it. Government rarely denies itself power once granted to it, at least not without some effort from the electorate. Since this power protects incumbent politicians most of all, the FEC will come under tremendous pressure to cast its nets widely. If this set of commissioners don't take the bait, the next set may. The solution is the repeal of the repellent BCRA and repudiation of John McCain and Russ Feingold, and all who would regulate political speech in America.

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