Friday, March 11, 2005
The world of blogging and its inhabitants are up in arms over recent comments by Federal Election Commission Chairman Brad Smith that the FEC has bloggers in its sights. A closer inspection of the article and the FEC's approach to campaign finance regulation reveal that Smith, a longtime ardent foe of regulating money in politics, was blowing some serious smoke.
Background: The 2002 Bipartisan Campaign Reform Act (McCain-Feingold) didn't really touch on the internet. The FEC then passed regulations which completely exempted the internet from McCain-Feingold. The 2004 election season saw political activity on the internet explode, which along with a helpful push from federal judge Kollar-Kotelly, sent the Federal Elections Commission back to the drawing board to devise regulations that deal with campaign activity on the internet.
As the federal agency responsible for implementing McCain-Feingold, the FEC is responsible for ensuring that the law's provisions are enforced in a meaningful way. It is absurd to allow corporations or unions to use funds from their treasuries to pay for internet ads for candidates or parties when they can't do so on TV, radio, or in print. Judge Kollar-Kotelly rightfully saw that allowing such incongruities weakened McCain-Feingold when she told the FEC to try again.
The FEC is now getting ready to figure out how to address the inconsistencies of their previous regulations. This is likely what has Commissioner Smith preaching apocalypse to blogworld.
What makes sense is to apply the media exception to the internet. This would treat blogs just like newspapers, allowing folks to express their opinions about candidates free from worry about adhering to federal campaign finance laws. Bloggers or websites that get paid by candidates, political parties, or committees to promote or attack any of those same groups, or those who spend money to advertise their websites which do the same, would be treated just like newspapers, TV stations or radio stations that get paid by those groups to run ads. Those ads would count as campaign expenditures, and would need to be paid for with regulated funds.
Check out this piece by Rick Hasen, an election law professor, who goes into considerably more detail.