By now, you're probably aware that the Federal Election Commission (FEC) proposes to regulate the political blogosphere. Red State says this constitutes a "threat." I do not disagree. But it's the sort of threat we face everyday. It's the threat taxpayers face when Congress is in session, or that city dwellers face when drug warriors pick the wrong house in the execution of a no-knock warrant. It's the threat inherent to the exercise of governmental power. Indeed, the very existence of a federal law, under which the FEC operates, that rations the political speech of the American people is not just a threat to the First Amendment; it's the hobbling of it.
But laying aside general misgivings about the adventures of the Leviathan, I think we have to say that these particular regulations, as proposed, are tame; in fact, they amount to hardly any regulation at all, at least as they apply to bloggers. I stress here that the regulations are in draft form and still open to public comment; it's possible that the rules might change between now and the time they appear in the Code of Federal Regulations (CFR). You can submit your own comments by writing an e-mail to Federal Election Commission.
In 2002, Congress enacted the Bipartisan Campaign Reform Act, Pub. L. 107-155, 116 Stat. 81, 2002. (Baffled by legal citations? Don?t be.) This is the infamous "McCain-Feingold law." In promulgating regulations to implement the Act, the FEC excluded all Internet communications from the statute's definition of "public communication." But in Shays v. Federal Election Commission, 337 F.Supp.2d 28 (D.D.C.), a U.S. district court held this exclusion inconsistent with congressional intent1; it ordered the agency to promulgate new regulations applicable to political communications on the Internet.
The FEC appealed, and the case is now pending before the U.S. Circuit Court of Appeals for the D.C. Circuit. In the interim, the agency is trying to comply with the district court's order.
Under the new regulations, as proposed, the FEC would:
• exclude from the definition of "public communication" all political speech on the Internet, "except for announcements placed for a fee on another person's or entity's website." Moreover, the agency specifically requests comment on whether it should amend its regulations "to explicitly state that it is not including [the activities of] ‘bloggers’ in the definition of ‘public communication.’"
• not require "bloggers to disclose payments from a candidate, a campaign, or a political committee." The agency does, however, seek comment on whether it should require such disclosures. (Markos, any thoughts?)
• exempt from regulation the postings of a blogger as the activity of an "uncompensated individual or volunteer," even if the postings were made "in cooperation, consultation, or concert with a candidate or a political party committee." However, this exception would "not apply to paid advertising or other payments for the use of another person's website," unless the fee was "nominal."
The FEC also seeks comment on whether bloggers should have the same exemption from regulation enjoyed by legacy media. In short, the FEC's proposed regulations are, I think, blogger-friendly and consistent with the principles set forth by the Center for Democracy and Technology.
Still, the very existence of this sort of rulemaking is a threat. Federal regulations are not static, and nothing prevents the agency from revisiting these issues in the future and adopting rules that discourage blogging. But we ought to take this opportunity to remember where the threat originated. It came from members of Congress who, already nearly impervious to defeat, sought to insulate their incumbency from attack; from a president who, for short-term political gain, abdicated his responsibility to veto legislation that by his own admission presented "serious constitutional concerns;" and from a Supreme Court more inclined to protect the dissemination of pornography than the dissemination of ideas.
If you want to submit comments to the FEC, you have until June 3 to make your voice heard. Be polite. Of all the governmental players here, the agency itself seems the most cognizant of the value of political speech.
(Think I've missed something or misapprehended the proposed regulations? Please say so. I ask only that you first read the regulations.)
1Insofar as the intent of McCain-Feingold was to hamper the political speech of Americans who criticize members of Congress, the court was correct.
(Edited to correct typos and to change the title of the post.)
