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March 23, 2005
FEC Asks Interesting (And Chilling) Questions

Mike Krempansky at Redstate has the FEC proposal for public review of their upcoming regulation of political activity on the Internet, posted in HTML format for easy review. I've been reading through this on the eve of their first public hearing. While some may find this rather tame, compared to the mischief the FEC could have wrought, the questions the document asks still gives me some trepidation about where the FEC will go in following the court's mandate.

For instance, when talking about the issue of defining public communications in terms of regulation, the FEC proposal includes this:

The Commission invites comment on whether announcements placed for a fee on another entitys website should be considered general public political advertising, and therefore, a public communication under 11 CFR 100.26. Is this approach consistent with BCRAs definition of public communication to include broadcast, cable or satellite communications, newspaper, magazines and outdoor advertising facilities, all of which typically charge fees to those who run political advertisements?

If a mode of communication does not cost any money, can it be general public political advertising and therefore a public communication within the meaning of the statute? For example, a person might appear in a public square and give a campaign speech before 500 or more people. If such a public speech does not cost any money to undertake, is it outside the scope of general public political advertising under the statute and therefore not a public communication? Likewise, is such a public speech outside the scope of an expenditure or contribution under the statute? Also, should general public political advertising include Internet advertisements where a the advertising space was provided for something of value other than a monetary payment, for example through an exchange of comparable advertising? Although the Commission rule excludes iInternet activity that is not placed for a fee, should the Commission amend its regulation to explicitly state that it is not including bloggers in the definition of public communication?

In the first paragraph, the FEC has made it unclear whether they would consider a paid advertisement an issue for the payor or the payee, or both. Choosing the latter could have implications for bloggers with ad strips. I received a few ads from political campaigns, although not as many as I had anticipated; I think most campaigns missed the boat on blogads last year. Does the FEC mean to hold the blogger responsible as well as the campaign for that "public communication"?

In the second paragraph, I see even more potential for trouble. First, the example used shows a lack of understanding of the First Amendment. Someone giving a speech on behalf of a candidate should neither be considered advertising or a contribution -- it's political speech. This is the danger of the BCRA. It claims that money isn't speech, but then it turns around and tries to consider speech as equivalent to money.

The second question gets closer to the blogosphere. What it appears to ask is if a blogger agrees to post campaign material for a link or an spot on the campaign site, can the FEC regulate the speech on the blog as an in-kind campaign contribution? This gets back to turning the FEC into a thought police, where such an event could simply be an agreement with the principles of the blogger, and the campaign wanting to highlight those who support the candidate. It presumes coordination where none may exist.

To answer their last question, I'd certainly say that if their legislation intends on addressing the questions they've asked, then bloggers will need explicit exclusion from it. Otherwise, we'd all be at risk, based on our normal practices. But the other questions asked show that the true issue isn't bloggers per se, but the overall effect of the BCRA.

To underscore that concern, this pops up a little further along:

News reports indicate that in the 2004 elections some individual bloggers received significant fees from the campaign committees of at least one presidential candidate and one Senate candidate to promote the candidates campaigns on their blogs.[19] For example, the operator of the ninth most linked blog on the Internet, which received as many as one million visits daily, reportedly received $12,000 over a four-month period from one presidential candidate.[20] The news reports further indicate that not all of the bloggers disclosed the payments to the blogs readers.

The Commission notes that its current rules require a political committee to disclose this type of disbursement on its publicly available reports filed with the Commission. The Commission does not therefore propose to change the disclaimer regulation in 11 CFR 110.11(a) to require bloggers to disclose payments from a candidate, a campaign, or a political committee. The Commission seeks comment on this approach. Should bloggers be required to disclose such payments? Should a blogger be required to disclose payments only if the blogger expressly advocates the election or defeat of a clearly identified candidate or solicits a contribution? Would a payment by a political committee to a blogger for promotional content on the blog constitute general public political advertising within the meaning of 100.26?

Should bloggers disclose financial arrangements with people about whom they write, especially political candidates? Yes, for sound ethical reasons. Is it the government's business to force them to do it? Absolutely not. The candidate must eventually disclose their expenditures, but a blogger shouldn't come under the FEC's thumb. Remember, in the scenario they paint, the blogger isn't a contributor to the campaign, he's an employee of it.

The mischief this will cause may be hard to see, but such a rule will open the door for swarms of partisan-minded complaints intended on nagging bloggers to shut down, even if they don't actually receive a dime. My friends at Power Line have been accused -- wrongfully -- of being on the GOP payroll. One of the Brookings panelists yesterday made an offhand comment that the credentialed bloggers to the Republican convention had been paid to be there, a lazy allegation that I immediately refuted. Imagine if the FEC had the power to fine bloggers who failed to disclose payments, and if a blogger urged his readers to all file complaints against a politically opposed blogger.

Much of the language in the FEC's proposal pays homage to bloggers. However, I think that those paeans may serve only as Trojan horses in order to give us a false sense of security. I would urge the attendees at tomorrow's meeting to make the FEC commissioners account for every jot and tittle in this document.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at March 23, 2005 10:31 PM

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