Right Wing Nut House



Filed under: Blogging — Rick Moran @ 8:44 am

There are those who believe that the current controversy over potential FEC regulation of political internet sites that’s roiling the blogosphere is nothing more than a puff of talcum powder blowing through the cable modems of overreactive pajamahadeen, a will-o-the-wisp rumpus that will disappear once cooler heads prevail and it becomes clear that the FEC is our friend and would never seek to regulate us anklebiters.

Oh yeah?

WASHINGTON, March 5 - Federal election commissioners are preparing to consider how revamped campaign finance laws apply to political activity on the Internet, including online advertising, fund-raising e-mail messages and Web logs.

But it is unclear how much appetite the F.E.C., criticized in the past by advocates for election reform as being dysfunctional and ineffective, really has for trying to govern Internet activity. In interviews on Thursday, several commissioners warned about the complexities of trying to assign a dollar value to online campaign activity and said they hoped any new regulations would not stifle personal political involvement.

(Courtesy New York Times 3/5/05)

I want you to go back and read that last sentence very carefully. Let me try and translate for you: “It’s going to be difficult to try and assign a dollar value to your advocacy, but by gum, we’re going to give it our best shot and oh, by the way, we hope that any solution we come up with won’t be too onerous.”

Every time the Commissioners open their mouths to reassure us, they give more cause for alarm. Here’s Democratic Commissioner Ellen Weintraub telling us not to worry:

“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.”

What has me worried, what truly frightens me is that the Commissioners don’t have a clue as to what bloggers do or what a blog is! This is obvious from Commissioner Weintraub’s statement that this won’t affect what somebody “sitting at home” in front of their computer does.

Newsflash for the FEC: Any regulations that include covering any activities that limit the free flow of information from campaigns, to websites, to other web sites, to readers, will not only be “onerous” it will also restrict political speech-speech that the first amendment guarantees absolutely and without qualifications.

As I mentioned in my post from Friday just because some regulation may or may not be “constitutional” won’t stop an agency from issuing the rule in the first place. Sometimes their rationale is “If they want to fight it, they can take it to court.” Sometimes it’s just sheer bullying; the rules are promulgated because the entity being targeted can’t or won’t fight back.

In this case, it’s apparent that the Commissioners feel that McCain-Feingold gives them broad leeway to regulate political speech. This includes any kind of advocacy that can be construed as assisting a campaign in getting it’s message out. Speaking for myself, I never paid much attention to the emails coming from the Bush campaign during the last election cycle. I usually deleted it without even glancing at it. But let’s do a little “just supposin’” here:

Suppose I wanted to reproduce a blurb from that campaign release on my blog? As an advocate for the candidate, the FEC wants to “look into the possibility” that my blog would be a covered entity under McCain-Feingold-an adjunct to the Bush campaign-and subject to regulation.

Suppose I wanted to quote from the press release using a newspaper as the source? While newspapers and periodicals are specifically exempted from the law, blogs could be prevented from reproducing and/or linking to an article that contained excerpts from the press release.

Suppose (and this is my favorite “what if” scenario) a blogger wants to go to the other guys site and do a satire on some ridiculous bit of nonsense the opposing candidate came up with for that day? To do that, I’d have to reproduce some of the material on the opposition’s web site. According to the FEC, that too would be considered covered activity for pruposes of the law. In effect, I’d be considered contributing to the campaign of the oppositon!

I’ve tried to look at this situation and not be spooked. Our friends at Uncorrelated have been warning about a blogosphere overreaction since the controversy started. They point to an excellent publication by the Brookings Institution “Election Law and the Internet” as proof that there’s nothing to worry about.

I will say to my friends at Uncorrelated that I would be much more sanguine about this situation if that publication hadn’t been written by Trevor Potter. Mr. Potter, former campaign General Counsel for Senator McCain and current head of the McCain-Feingold advocacy group Campaign Legal Center, has just recently called Commissioner Brad Smith a liar in a press release for comments Mr. Smith made in an interview with C-Net. The problem, as referenced above, is that the other Commissioners, while trying to be reassuring, are in fact saying that they’ll be looking into the possibility of regulating blogs thus validating some of what Mr. Smith was saying in the interview.

This issue needs the guys at Uncorrelated and others like them to keep us from going over the precipice and into the fever swamps of conspiracy mongering and paranoia.

It also needs people like me who are going to keep a keen eye fixed squarely on everything the FEC and their advocates say and do. Because mark me, ye whalers: Once the FEC starts discussing rules to regulate blogs in public session, it won’t be a question of whether or not they will regulate blogs but rather a question of how much regulation they’ll end up stuffing down our throats.

By then, it will be too late.

Cross-Posted at Blogger News Network


Michelle Malkin has been all over this issue since it broke. Today, she links to the Captain’s excellent analysis as well as several other blogs commenting on the NY Times story.


  1. Thanks for the comment on my site.

    I’ve actually given some thought to some of the points you’ve raised. The feds will have to apply the same standards of advertising regulation to the Internet that they do to other forms of media. You can’t, for instance, be more strict on Internet advertising than you are on newspapers ads. So, they wouldn’t be able to regulate any old blog with advertising. I mean, if a blog advertises with Google ads, and then contracts ad space with another service, I can’t see where they’re liable.

    Well, maybe, if the blog refused to run ads of one candidate and not the other; or if a blog offered lower rates to one candidate over another. In that case, where equal access is denied, it would be hard to argue that the site has engaged in legitimate opinion making, and not outright activism. I mean, I wouldn’t have seen the Bush campaign advertising on Kos or Eschaton. It would have been wasted money. But, if they tried to advertise and were turned down for partisan reasons…

    I think you’re right. I think ultimately, the court will ultimately find that most blogs are the electronic version of a backyard fence conversation, and will expressly forbid government regulation over them. I think ultimately, what they’ll wind up really looking at are loopholes in McCain-Feingold that exist on the Internet. Those certainly exist.

    I think that if anything, what will eventually happen is that a few sites will have to carefully think about some of their content.

    For instance, Atrios might have to reconsider posting information about Pennsylvania Senate candidate meet-up times and locations. Not because that by itself might be illegal, but it might affect what sort of information he’s allowed to post as the campaign draws to a close — posting information for a Joe Hoeffel rally might make his next post, a post about how Arlen Specter will use a pro-life litmus for sending judges to a Senate vote, look like advertising, or advocacy by an allied organization.

    I agree the future on this is mighty murky, and I’d prefer it didn’t happen. But, I’d be willing to stake a great deal of my personal and professional credibility on that this will not affect the vast, vast majority of bloggers.

    Comment by Captain Salty — 3/6/2005 @ 11:55 am

  2. [...] e horizon in the case of bloggers being regulated as an extension of McCain Feingold (from Superhawk at Rightwingnuthouse): There are those who believe that the [...]

    Pingback by The Wide Awakes » Impending Doom: The FEC’s Plans 4 Crackdown on Political Blogging — 3/8/2005 @ 9:40 am

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