FEC follies

FEC follies

: There’s a considerable dustup today over an interview with Federal Election Commission Bradley Smith saying that under McCain-Feingold and a recent court decision overturning an internet exemption, the commission will have to go after bloggers, ascribing a value to the links they give candidates as campaign contributions.

I’m not sure how to read the smoke signals above this fire.

Mark Tapscott and others say it’s evidence of the perfidity of the FEC and McCain-Feingold.

Rex Hammock says it’s all hypothetical and will blow away like a nonstory. Punditguy says it’s all posturing:

It’s a tactic pure and simple, and I think Commissioner Smith is playing it up – TO THE BLOGOSPHERE. He’d like nothing more than for bloggers to FREAK OUT over his little interview on CNet and create havoc. Then the FEC will be forced to bow to the pressure and continue the Internet exemption portion of the 2002 campaign finance law. He’s no doubt seen the effect (Rathergate), and I’m sure he’s counting on his words to light a fire under…well, you know what I mean.

Will bloggers take the bait and crank up the volume?

Yep.

And that’s a good thing.

I’m guessing that Smith et al are pushing McCain Feingold to its limit. It’s like Howard Stern saying he hopes the FCC fines somebody for saying “damn,” just to push it to its absurd limit.

Though hypothetical, the interview pushes the right fright buttons — like the government deciding that bloggers aren’t media.

And though hypothetical, the interview shows the potential danger of trying to restrict political speech — of all speech.

I go nutsy over the FCC and speech and FEC-haters then go nutsy over me not going nutsy over the FEC. It’s a complicated world. But I have to agree that government censoring media is the same slippery slope as government regulating political speech.

FRIDAY UPDATE: Seth Finkelstein sniffs out the hype in all this.

  • http://communique.portland.or.us/ The One True b!X

    There is, of course, a press exemption, and it includes periodicals. Rationally, blogs are periodicals. Legally, who knows.
    Think the fact that my blog has an ISSN would help there? ;)

  • richard mcenroe

    If they’re arrogant enough to make this as an empty threat, they should be publicly humiliated and slapped down hard.
    If, as is more likely the case, this is another example of legislation by bureaucrat, it should be snuffed out before it even begins to get established.
    townhall.com has a feature that lets you e-mail the White House, your Congressdrones, or all of the above.
    This is intolerable. It’s bad enough that the FEC gets away with restricting mass political speech, but now they’re trying to regulate what we can say to each other. This is obscene, unconscionable and unenforceable.
    Anyone from any party who cares about freedom should never vote for John McCain again.

  • http://www.bloggersmarket.com jd

    Wouldn’t the FEC also have to fine every newspaper whose editorial page does an election endorsement?

  • http://communique.portland.or.us/ The One True b!X

    Wouldn’t the FEC also have to fine every newspaper whose editorial page does an election endorsement?
    As I said above, there is a press exemption.

  • J. Peden

    I demand compensation for the value of my contribution! [No, not a good lashing.]
    As I recall, the scotus reasoned that any law designed to counteract even any mere appearance of “impropriety” is constitutional. Therefore, such a law may and even must be written! I will be enslaved no longer, providing my valuable input freely as I have been required to thus far by the bourgoise Bosses.

  • Bemac

    Relax. There are all kinds of ways around this problem:
    1. Move your blog to an Iranian server. If you run afoul of the FEC, the Iranians will think you are irritating the US government and will defend your blog with the nukes they are not building.
    2. Put a blurry, black-and-white wallpaper behind the text of your blog. A photo of your cat, a school picture, whatever. Just make it far too blurry to recognize. When the FEC tries to fine you, say the blurry picture is constitutionally protected Maplethorpean homoerotica and spew some pomo BS about the reason for the text of your blog. (e.g. “The juxtaposition of recognizable tropes of political discourse demarcates canonical limitations on the physioeconomic hegemony of transgressive sexuality.”) They can’t fine what they can’t comprehend.
    Or just call the FEC homophobic for hating your wallpaper. They will apologize for threatening you and implement sensitivity training for everyone from the commissioners on down.
    3. Amend the oath of office for federal officeholders to include “protect and defend AND READ” the Constitution. Of course, it would probably be easier to amend the oath than to get them to actually read the thing, alas.

  • EverKarl

    Yep, there is that press exemption and based on my short tenure at the FEC, blogs would not fall within that exemption, imho. Like the statutes that create a “reporter’s privilege,” people ought to worry every time the government purports to have the power to decide who is the press and who isn’t. The federal and state constitutional protections of free speech and press were enacted as a reaction against the governmental licensure of the press.
    The recent Supreme Court decision upholding McCain-Feingold tends to suggest that the Supremes have no problem with the media exemption (though I wonder whether, if presented with the issue of bloggers, they might go the other way; the Court has generally been very internet-friendly).
    Moreover, the existence of the media exemption is, imho, key to the existence of the entire regulatory scheme. If the media knew it would have to live under the current regulatory scheme, it would have been so roundly denounced that it would never have become law.

  • http://RuthCalvo Ruth

    Actually, there is consideration of reviewing direct communications from political offices to blogs, on the theory that posting comments on well-read blogs is a way of obtaining free exposure of political messages. Sorry, I can’t remember where I gleaned this bit of news.

  • http://www.glcq.com paul_lukasiak

    unfortunately, there is a small kernal of justifiable concern here, and I think that Jeff may be right in suggesting that there is another agenda at work.
    Specifically, as everyone knows by now, the Thune campaign was paying bloggers to smear Daschle, and those bloggers were representing themselves not as paid operatives for the Thune campaign, but as “concerned private citizens.”
    This kind of “bought and paid for” political speech is within the purview of the FEC.
    I suspect that Smith’s comments were designed to provoke a firestorm that would remove any pressure for the FEC to take appropriate action against Thune and the “bought and paid for” bloggers in question….

  • a reader writes

    Do our corporate masters have as their ultimate goal that the Internet shall exist only as a medium of *commerce*? Perhaps we’re heading for a future when the only legal uses of the Internet in the U.S. will be shopping and and consuming the copyright-protected products of the MSM–so that we’re preoccupied with the same circuses they use to placate us in “meatspace…”.

  • Andy Freeman

    > It’s a complicated world.
    It’s only complicated if you’re trying to defend the indefensible.
    Why should I care more about Stern’s right to say “tits” than my right to political speech? Why should I lift a finger to help protect MSM outlets that push restrictions on my speech. Why should I care at all about a MSM that values its tribe more than it values my free speech?
    In other news, a Texas talk-radio station is saying that they’ll sign up bloggers under their “media” exemption. I’m sure that there’s a left/liberal/progressive/objective media outlet planning to do likewise.

  • hey

    what andy said…
    the MSM is in big time on McCain Feingold.. it’s a goo-goo reform that appeals to their sensibilities… it just completely eviscerates the 1st amendment, but no big deal.
    janet jackson’s nipple? stern not being able to make fart jokes? that’s a crime against the constitution, mccain feingold isn’t.
    sorry but they can all rot in hell for the damage they do to the 1st amendment. who cares if you can have skinemax on broadcast if you can’t say that jfk is a cheese eating surrender monkey communist apologist or that w is a chimpymcbushitler if you don’t own a station?
    reading comprehension is a poor skill for the msm.. “congress shall make no law” = congress can screw the proles however they like, “the right of the people to keep and bear arms shall not be infringed” = take the guns away, “Congress shall make no law respecting an establishment of religion” = the government can’t mention religion at all, “nor shall private property be taken for public use, without just compensation” = gov can take anything they want, ” ” = there is an emanation of a penumbra that means that abortion is legal at all times…
    the court screwed it up by the numbers… but the msm pushed for these laws and attack anyone who fights for the constitution (see how national news treats people who accept a basic interpretation of the constitution).
    should the fcc being going after howie? no, but the FCC shouldn’t exist. should the FEC be able to regulate political speech? the FEC is unconstitutional, if one accepts a basic understanding of the 1st amendment! and, um, i’m pretty sure George Washington didn’t rebel because the Brits were fining the tavern girls too much for a nip slip, but rather because the colonies were oppressed politicaly and were being exploited for the benefit of entrenched interests and monopolies in britain. so which is more basic?
    i know that you’re coming around to this jeff, but it’s elemental, and your colleagies in the Dem party and the MSM worked for these draconian speech restrictions hard. They forced the president to sign it, attacked repubs who said it was unconstitutional, and now are reaping the whirlwind.

  • EverKarl

    paul,
    While I appreciate your concern about the Daschle-Thune blog (and agree that the bloggers involved behaved unethically), this issue is different. The Thune campaign had to report the payment to the bloggers as an expenditure to the FEC. Bradley Smith is raising the problem of regulating blogs that are not being paid by a campaign. For example, if a web site were promoting a story about a candidate’s TxANG service too close to an election, it might be deemed illegal electioneering, or an in-kind contribution to the opposing candidate. Not a desirable outcome, if you think about it.

  • http://www.elevendayempire.com/movavbletype James DiBenedetto

    What Andy said.
    Jeff’s offhanded comment that “I go nutsy over the FCC and speech and FEC-haters then go nutsy over me not going nutsy over the FEC. It’s a complicated world. But I have to agree that government censoring media is the same slippery slope as government regulating political speech.”
    …is laughable. Anyone who expresses the slightest concern about indecency on broadcast media is a prig, a prude, an “American taliban,” and so forth.
    Because, of course, Jeff’s precious right to see boobies on prime time broadcast TV, or to hear all about the joys of anal sex as reported by Howard Stern and his guests on over-the-air radio, has to be defended to the death.
    But actual political speech, debate on the issues of the day, advocacy of one’s beliefs and positions, well, Jeff just isn’t really concerned if those are restricted.
    The five people on the FCC who might, God forbid, make it more difficult to air garbage like Stern and the like, are evil incarnate. But the six people at the FEC who may well regulate and restrict political activity and discussion on the ‘net – including this very site, Jeff can’t be bothered to get too upset about them.
    I guess Jeff is a lot like his hero Howard Stern – just like Howard, he’s only worried about HIS freedom of speech, and his freedom to see and hear what HE wants, and everyone else’s freedom just doesn’t matter.

  • EverKarl

    Seth Finkelstein may think it’s hype — and the amount of attention it’s finally getting may seem like it — but the FEC has been looking at this issue for years. The FEC tried to be ‘net-friendly, but was overturned last Fall. And if Seth thinks that some web sites or blogs would not be the subject of FEC complaints by the same folks who sued over the FEC’s rule in the first place, he’s kidding himself.

  • http://www.richardsilverstein.com/tikun_olam/2005/03/threat_to_regul.html Richard Silverstein

    I agree with Paul that the Thune stealth bloggers really muddy this issue.
    I’ve just written a blog post about the interview & the Thune bloggers in which I propose a rudimentary standard of ethics for political bloggers in which they either renounce ad & consulting payments during campaigns or, barring that, they agree to reveal to their readers the precise nature of their involvement or connection to a campaign. If bloggers don’t do something like this then, again in light of the Thune episode, they invite FEC intervention AND the distrust of their own readers. Click on my name to go to the post link

  • EverKarl

    It’s all well and good to use someone’s comments section to promote one’s blog, but this has little or nothing to do with the ethics of political bloggers. I agree that the Thune bloggers should have disclosed the relationship, but the Thune campaign had to disclose payments to the bloggers under federal law going back to the 1970s.
    The regs that may be required as a result of last Fall’s court decision do not address the issues raised by the Thune case. Confusing the issues will only hand ammo to those who would like to see blogs regulated in ways that go far beyond disclosure requirements (which I would support for bloggers and anyone else).

  • http://www.glcq.com paul_lukasiak

    Bradley Smith is raising the problem of regulating blogs that are not being paid by a campaign.
    Karl, I really do understand that. My point was that Smith isn’t actually serious, and is using the controversy as a way of “papering over” the Thune/”bloggers for hire” issue.
    1. Smith suggests that blogs be regulated,
    2. the bloggers create an absolute shitstorm,
    3. Smith “reconsiders” his position, and says that bloggers won’t be regulated—and
    4. like magic, because bloggers are not regulated, the Thune/”bloggers for hire” problem disappears.
    the Thune campaign had to disclose payments to the bloggers under federal law going back to the 1970s.
    the problem, of course, is that the payments were not disclosed until after the election, and (unlike other forms of political advertising) there was never any indication in the blogs that they were paid agents of the Thune campaign.

  • http://www.buzzmachine.com Jeff Jarvis

    Good God, James, this is how you treat people who agree with you
    I’m quite sick of the Oliver Willis school of debating: namely, hating those who don’t agree ENOUGH.
    Enough.

  • EverKarl

    paul,
    There is no reason to think Smith isn’t serious. Smith may be hyping this a bit, but not to cover for the Daschle-Thune issue — he has a long history of opposing speech regs, which is exactly why McCain, Feingold, etc. opposed his nomination. He wants a blogstorm to head off regs that have basically been ordered by the district court decision that came down last Fall.
    Indeed, since Smith has long been in the camp of “full disclosure” as the only acceptable type of reg, I suspect Smith would not have a problem with disclosure regs to address the D-T issue from the blogger side of the issue (as opposed to the campaign side, where disclosure is already required). Nor would I.
    FWIW, my observation during the summer I worked at the FEC was that it was not an agency that was looking to do the GOP any favors.

  • http://www.elevendayempire.com/movabletype James DiBenedetto

    Jeff,
    But you don’t agree – your post about the FEC makes that clear. An FEC commissioner comes right out and says that the FEC is likely going to be regulating political expression on the Internet, and in blogs (like, for example, this one), and you’re “not sure” how to take it, and you make a point of citing two sites that poo-poo the whole thing.
    But when Michael Powell says anything, you go on and on about how he, and anyone who supports him, is a prig, and a prude, and a wannabe-Mullah.
    You don’t just not “go nutsy” over the FEC, you don’t really bother about it at all. I did a google search – 23 mentions of the FEC on this site, half of which were in comments. The FCC? 293. Seems pretty clear to me.
    And you clearly don’t agree that FEC regulation of political speech is a far bigger threat, and far more antithetical to the Constitution, than FCC regulation of broadcast media.
    Even if the FCC somehow manages to force anything remotely indecent from the airwaves, you’ll still have cable-TV, and satellite, and pay-per-view, and DVDs and CDs to get your fix of Howard Stern and anything else you want to watch.
    But if the FEC gets its way, there isn’t gong to be any venue for political speech for private citizens. I’ll be shut out, and so will you, and everyone else on this site.
    I think that’s a far bigger threat to freedom than the regulation of indecent conetns on broadcast TV and radio.