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March 9, 2005
McCain, Feingold, & Co: Trust Us

John McCain and Russ Feingold issued a joint statement yesterday in response to the outrage from the blogosphere over the failure of the FEC to appeal the legal ruling ending the Internet exemption of the BCRA. After FEC Commissioner Bradley Smith detailed the range of options open to the FEC for regulating political speech, especially regarding blogs, CQ and a whole range of other bloggers across the political spectrum protested the decision by the three Democratic appointees to the FEC to block the appeal.

The joint statement, in its entirety:

As the primary Senate authors of the Bipartisan Campaign Reform Act of 2002, we have spent years fighting to clean up elections and ensure that powerful monied interests do not drown out the voices of everyday Americans in our political system. Those interests don't want to give up any of their power, and their main tactic has been to try to whip up fears, however unfounded and unrealistic, about reform.

The latest misinformation from the anti-reform crowd is the suggestion that our bill will require regulation of blogs and other Internet communications. A recent federal court decision requires the Federal Election Commission to open a new rulemaking on Internet communications. The FEC will be looking at whether and how paid advertising on the Internet should be treated, i.e., should it be treated differently than paid advertising on television or radio. This is an important issue -- since BCRA outlawed soft money, we need to make sure that the FEC doesn't try once again to subvert the law by creating loopholes. So far, the FEC has not even proposed new regulations. When it does so, there will be ample opportunity for comment and debate about whatever proposal the FEC makes.

This issue has nothing to with private citizens communicating on the Internet. There is simply no reason - none - to think that the FEC should or intends to regulate blogs or other Internet communications by private citizens. Suggestions to the contrary are simply the latest attempt by opponents of reform to whip up baseless fears. BCRA was intended to empower ordinary citizens, and it has been successful in doing so. We will continue to fight for that goal.

McCain and Feingold want us to believe that only paid advertising falls under the FEC's scope and the BCRA regulations. However, either they failed to read their own lawsuit or they are being deliberately deceptive. In the decision by Judge Colleen Kollar-Kotelly in Shays-Meehan v. FEC, buried deep within its lengthy text on page 153, this argument is effectively destroyed by the charge given to the FEC. Directly disputing their statement, the judge notes that the plaintiffs (in this case the Congressmen who wrote the companion bill for the House) want unpaid communications regulated by the FEC as well -- and the judge agrees:

b. Exclusion of Unpaid Broadcast Communications from Definition of Electioneering Communications

The Commissions electioneering communication regulations require that to constitute an electioneering communication the communication must be publicly distributed. C.F.R. 100.29(a)(2). The Commission has defined publicly distributed to mean aired,
broadcast, cablecast or otherwise disseminated for a fee through the facilities of a television station, radio station, cable television system, or satellite system. Id. 100.29(b)(3)(i) (emphasis added). Plaintiffs object to the for a fee requirement, contending that it

exclude[s] any pre-election reference to a candidate that is aired without charge, such as public service announcements, any program run on a public access cable channel or any other ad that a local broadcaster chooses for whatever reason to air without charge (e.g., friendship, ideological reasons, desire to curry favor with a powerful incumbent, etc.).

Now doesn't that last part sound pretty close to what bloggers do? We often publish candidates' positions without charge, either to support it or contradict it, primarily for ideological reasons. It's also sometimes called "free speech", in this case, literally free. Now here's what the judge tells the FEC about regulating it:

BCRA does not discuss the financing of electioneering communications. Def.s Mem. at 63; see also 2 U.S.C. 434(f)(3). Defendant therefore contends that Congress has not spoken directly on the precise question at issue. Id. (quoting Chevron, 467 U.S. 842-44). The Court cannot agree. As noted supra, Congress in enacting BCRA provided that certain communications were not to be considered electioneering communications. 2 U.S.C. 434(f)(3)(B)(i)-(iii). It also included a provision delegating authority to the FEC to create exemptions for communications, but limited the Commissions authority by expressly prohibiting from exemption public communications that promote[] or support[] a candidate for [federal] office, or attacks or opposes a candidate for [federal] office. Id. 434(f)(3)(B)(iv), 431(20)(A)(iii). While it is not clear whether Congress had a view on whether payment for broadcasts should affect whether or not a communication should be considered an electioneering communication,115 it is clear that Congress intended to create certain exceptions to the electioneering communication provision and permit the FEC to create exemptions.

However, those exemptions were not to exclude from regulation public communications that promote or oppose a candidate for office. Here the FEC has exempted from regulation all communications, regardless of their content, provided that a fee is not paid for their broadcast. This cannot be squared with the plain meaning of BCRAs text.117 Accordingly, the Court finds that the Commissions for a fee requirement violates Chevron step one.

While McCain and Feingold protest that their lawsuit only targets paid advertising, their action and the decision points out that they are being dishonest about it. The decision forces the FEC to regulate unpaid communications, including the Internet. How exactly do they propose on doing that? By going after those sites which repeat the candidates' positions -- or link back to them -- and declaring them in-kind contributions, the only way possible to regulate it.

Now they want us to trust them not to go after bloggers with this power which they wanted to hide from people by issuing this misleading statement. Do you trust them? Have they been honest with you so far?

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at March 9, 2005 1:02 PM

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