When my friends ask me why I'm lukewarm at best about John McCain, I want them to explain why he put his name on the abortion that was McCain-Feingold. Just once, someone explain to me why this bill was a good idea (and that includes the President, who signed it). Brian Andersen, who wrote the terrific book "
South Park Conservatives", had a
great editorial in the Journal Wednesday that lays out many of the problems...
Campaign-finance reform now has the blogosphere in its crosshairs. When the Federal Election Commission wrote specific rules in 2002 to implement McCain-Feingold, it voted 4-2 to exempt the Web. After all, observed the majority of three Republicans and one Democrat (the agency divides its seats evenly between the two parties), Congress didn't list the Internet among the "public communications"--everything from television to roadside billboards--that the FEC should regulate. Further, "the Internet is virtually a limitless resource, where the speech of one person does not interfere with the speech of anyone else," reasoned Republican commissioner Michael Toner. "Whereas campaign finance regulation is meant to ensure that money in politics does not corrupt candidates or officeholders, or create the appearance thereof, such rationales cannot plausibly be applied to the Internet, where on-line activists can communicate about politics with millions of people at little or no cost."
But when the chief House architects of campaign-finance reform, joined bySens. McCain and Russ Feingold, sued--claiming that the Internet was one big "loophole" that allowed big money to keep on corrupting--a federal judge agreed, ordering the FEC to clamp down on Web politics. Then-commissioner Bradley Smith and the two other Republicans on the FEC couldn't persuade their Democratic colleagues to vote to appeal.
The FEC thus has plunged into what Smith calls a "bizarre" rule-making process that could shackle the political blogosphere. This would be a particular disaster for the right, which has maintained its early advantage over the left in the blogosphere, despite the emergence of big liberal sites like Daily Kos. Some 157 of the top 250 political blogs express right-leaning views, a recent liberal survey found. Reaching a growing and influential audience--hundreds of thousands of readers weekly (including most journalists) for the top conservative sites--the blogosphere has enabled the right to counter the biases of the liberal media mainstream. Without the blogosphere, Howell Raines would still be the New York Times' editor, Dan Rather would only now be retiring, garlanded with praise--and John Kerry might be president of the U.S., assuming that CBS News had gotten away with its falsehood about President Bush's military service that the diligent bloggers at PowerLine, LittleGreenFootballs and other sites swiftly debunked.
Are the hundreds of political blogs that have sprouted over the last few years--21st-century versions of the Revolutionary era's political pamphlets--"press," and thus exempt from FEC regulations? Liberal reform groups like Democracy 21 say no. "We do not believe anyone described as a 'blogger' is by definition entitled to the benefit of the press exemption," they collectively sniffed in a brief to the FEC. "While some bloggers may provide a function very similar to more classical media activities, and thus could reasonably be said to fall within the exemption, others surely do not." The key test, the groups claimed, should be whether the blogger is performing a "legitimate press function." But who decides what is legitimate? And what in the Constitution gives him the authority to do so?
A first, abandoned, draft of proposed FEC Web rules, leaked to the RedState blog last March, regulated all but tiny, password-protected political sites, so bloggers should be worried. Without a general exemption, political blogs could easily find themselves in regulatory hell. Say it's a presidential race, Condi Rice vs. Hillary Clinton. You run a wildly opinionated and popular group blog--call it No to Hillary--that rails daily about the perils of a Clinton restoration and sometimes republishes Rice campaign material. Is your blog making "contributions" to Rice? Maybe. The FEC says that a "contribution" includes "any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office" (my italics). If your anti-Hillary blog spends more than $1,000, you could also find it reclassified as a "political committee." Then you've got countless legal requirements and funding limits to worry about.
In such a regulated Web-world, bloggers and operators of political sites would have to get press exemptions on a case-by-case basis. The results, election-law expert Bob Bauer explains, would be "unpredictable, highly sensitive to subtle differences in facts, and to the political environment of the moment." Even when the outcome is happy, says Mr. Bauer, "a favorable result is still an act of noblesse oblige by a government well aware that if it turns down a request, the disappointed applicant is left with litigation as the only option."
Sites would live in fear of Kafkaesque FEC enforcement actions, often triggered by political rivals' complaints. "If the matter is based on a complaint," notes former FEC counsel Allison Hayward, "the 'respondent' will receive a letter from the FEC with the complaint and will be asked to show why the FEC shouldn't investigate." An investigation involves "the usual tools of civil litigation--document requests, depositions, briefs, and the like." The outcome can take months "or longer" to determine, says Hayward. "If a complaint is filed against you, there will be a flurry of activity while you respond, then perhaps silence--then another letter will arrive and you will be required to respond promptly, then maybe nothing again for months." Most political bloggers aren't paid "professional" reporters or commentators but just democratic citizens with day jobs who like to exercise their right to voice their opinions. If doing so without a lawyer puts them or their families at risk, many will simply stop blogging about politics--or never start.
Government regulation is always an enemy of freedom. The more we allow into the realm of political speech, the more we limit our rights to freedom of speech, and here's it to political speech. The same people who get horrifically offended when Howard Stern gets nailed for indecency probably need to pay attention to the real threat in our midst.
