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March 4, 2005

The great FEC scare. This interview with FEC Commissioner Bradley Smith, warning that political bloggers may soon be subject to draconian regulation as a consequence of McCain-Feingold, has been linked to from all over the blogosphere.

I’m frankly not sure how seriously to take it, because in all honesty I don’t entirely trust any “news” story bylined by the guy who made up the “Al Gore claimed to have invented the Internet” story (and, later, boasted about having done so). A basic technique of the modern Right is to enlist the libertarian impulses of decent people in the service of policies that actually serve to consolidate power in fewer and fewer hands, and lots of libertarians have shown themselves to be entirely user-friendly in this regard. Not being an expert on the intricacies of campaign law, I’m not entirely sure all this alarm about Imminent Regulation Of Weblogs (film at 11) isn’t just a con designed to undermine support for any limitations on the latitude of the ultra-rich.

Assuming the story is legit, though, Nathan Newman, as he so frequently does, talks sense.

The FEC is making noises to limit the speech of blogs in the name of campaign finance reform. Josh worries that this “would mean the end of what this site and so many others on the right and left do.”

Only if we follow the rules. I won’t. Free speech is worth fighting for and the best way to do it is to refuse to be silent. There are a lot of bloggers out there and that’s a lot of people to throw in jail if they all pledge to defy the rules.

I think most campaign finance rules restricting contributions are worthless and lead to idiotic proposals like this one. This is a good place for the insanity to stop. The more bloggers who pledge to defy the FEC, the less likely they are to move forward.

I’ll take that pledge. [08:09 AM]
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Comments on The great FEC scare.:

James Slusher ::: (view all by) ::: March 04, 2005, 09:57 AM:

Not to mention the absolutely insane problem of enforcing such a law. If such a thing comes to pass, I'm going to become a thief. The police would be busy shutting down a few million blogs that all think George W. Bush blows underage goats.

He does, by the way.

Hey, there's someone at your door.

Thomas Nephew ::: (view all by) ::: March 04, 2005, 10:07 AM:

Don't know if viewing blog endorsements etc as campaign contributions would be very hard to enforce, depending on how it was implemented:
(1) Technorati everything with a link to CandidateX.com.
(2) Charge a fee via their Internet provider.
For all I know, the FEC could even measure traffic to the site somehow -- for instance by requiring the Internet provider to do so -- and make it a per-visit fee.

None of which I support, I just wonder if personal pledges of resistance will help much. I'll be happy to learn how the above scenario is unlikely, impossible, or easily circumvented.

julia ::: (view all by) ::: March 04, 2005, 10:08 AM:

I really don't buy it. The last thing the Republicans want to do is make advocacy into an in-kind contribution.

I think this is supposed to keep us busy being indignant while Rep. Jones pushes his bill to allow churches to keep their tax-free status while endorsing candidates.

Avedon ::: (view all by) ::: March 04, 2005, 10:31 AM:

Julia may be right.

Declan has been known to be taken in before and since, but sometimes he is alarmist for the right reason.

Josh Jasper ::: (view all by) ::: March 04, 2005, 10:58 AM:

OK, how about the we create First Church Of Jesus, Blogger?

Nina K ::: (view all by) ::: March 04, 2005, 12:27 PM:

I found it slightly amusing that they were considering linking to a campaign web page as an in-kind contribution. So would a googlebombing linking something like, oh, "Miserable Failure" to a campaign website be counted as a campaign contribution?

Dang, I guess I really DO contribute to both parties.

Alan Bostick ::: (view all by) ::: March 04, 2005, 12:46 PM:

What's more, the rule becomes unenforceable the moment someone opens up a Blogspot-clone in the Bahamas (sometimes I wonder why the .bs top-level domain isn't already coveted by bloggers).

Terry Karney ::: (view all by) ::: March 04, 2005, 01:02 PM:

Yeah. I had a knee-jerk reaction, had some doubts and then decided I was over-reacting, but by then all I could do was add a comment that perhaps this wasn't the best guy to be looking at where such things were concerned.

Then again, I also planned to ignore the law too.


Mary Kay ::: (view all by) ::: March 04, 2005, 01:22 PM:

I'll be ignoring it too. I mean, they didn't count my flying to Des Moines, renting a car, a hotel room, and eating out for a week as in-kind contributions, so why should this? Nuts to 'em says I.

MKK--first amendment fan

JamesG ::: (view all by) ::: March 04, 2005, 01:34 PM:

Why stop there? Let’s just get this whole nation under control while we still can. I say we make it illegal to even discuss anything political (unless of course it shows the current administration in good light). If you drop a “Dubya” bomb while talking to a friend in a bar, you go to jail.

How can the government show us how much they are doing for us if they are constantly reminded of how unhappy the people are about their decisions? The new national motto will be: “Don’t confuse me with the truth.”

They are obviously upset about people linking to their sites to show what jackasses they are or this would be a non-issue. Campaign contributions my foot, they are just looking for a reason to silence the voices they can't control. If they don’t want to come off looking like a jackass then they shouldn’t act like one.

Rich McAllister ::: (view all by) ::: March 04, 2005, 01:36 PM:

Now, to the extent I understand the rant, the idea is that "reprinting" campaign info or linking to it constitutes a "contribution in kind" and thus comes under the contribution limitations. But the usual remedy for exceeding the limitations is for the campaign to send the excess money back to the contributor. So if a blog were to "accidentally" reprint too much of, say, the Cheney '08 campaign's material, wouldn't the first result being the Cheney campaign having to cut a check to that blogger?

Jonathan Vos Post ::: (view all by) ::: March 04, 2005, 02:01 PM:

Rich McAllister:

Cheney '08? Nah, more fun in 2008 would be
Condi vs. Hillary. But point well taken.

I think that such an infringement of the First Amendment (speaking as a former dues-paying member of The First Amendment Coalition who prosecuted a First Amendment case In Pro Per) would fail a balance test for which McCain-Feingold succeeded. The conflict between theories of campaign contributions as speech has not yet been exhausted in the courts.

Is it only a coincidence that this all emerged after Emperor Bush II and Czar Putin compared notes on how best to dismantle Democracy?

"Given a choice between government and blogs, I'll take blogs any day." [Tommy Jefferson's blog, if he had one]

Xopher (Christopher Hatton) ::: (view all by) ::: March 04, 2005, 02:24 PM:

If linking to a campaign website counts as a campaign contribution, I'll pay my taxes by linking to the IRS website.

Dave Weingart ::: (view all by) ::: March 04, 2005, 03:35 PM:

Welll...I rarely do any political blogging, but I'll have to start just so I can take that pledge.

jim ::: (view all by) ::: March 04, 2005, 05:20 PM:

Umm. There's a "press exemption" in the law. it applies to all periodical publications. It says nothing about the medium through which they're published. Blogs are periodical publications. Some have even received ISSNs.

Nothing to see here. Move along.

arbitrary aardvark ::: (view all by) ::: March 07, 2005, 09:10 PM:

"Bush blows goats" - allowed. Not express advocacy.
"Vote for Bush" - not allowed, missing a 'paid for by' disclaimer.

Alex Wallenwein ::: (view all by) ::: March 13, 2005, 08:03 PM:

I'll join the "pledge to defy the FEC" drive anytime. There is no other way since Congress has already passed the BCRA, and the Supremes upheld it on spurious reasoning.

As to Declan McCoullogh crying "wolf" once again: What matters is not who wrote the article but what Bradley Smith actually said and whether it holds water.

FECA (2 USC 431) in Subsection (9)(A)(i) states
"The term ''expenditure'' includes -
(i) any purchase, payment, distribution, loan, advance,
deposit, or gift of money or anything of value, made by any
person for the purpose of influencing any election for Federal

"Expenditures" are considered "contributions" under BCRA - and thus may be regulated under it.

"Anything of value" is unbelievably broad. Is a private citizen's negative opinion about a certain candidate, expressed on a popular blog online something "of value" to his opponent?

"... for the purpose of influencing any election for federal office" is equally broad. When you publish a blog entry that says "Candidate X sucks", are you implicitly trying to influence an election?

You bet.

Wanna bet that some activst judge will agree with that statement when he has a chance to use it?

In 2002, the FEC exempted the Internet from regulation under BCRA by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision. "The commission's exclusion of Internet communications from the coordinated communications regulation severely undermines" the campaign finance law's purposes, Kollar-Kotelly wrote.

The FEC then decided not to appeal that decision. That's what got Bradley hot under the collar.

Do you see how the noose tightens, ever so slowly?

There is no doubt in my mind that the trend is to choke private citizens' right to free speech on the internet - and elsewhere - right out of existence.

This trend will continue unless a whole bunch of one-sided and "hysterical" bloggers become whistleblowers like Bradley Smith did and cotninue to "overreact" for all it's worth, until the BCRA is overturned.

This must not stand!

I am somehwat surprised and dismayed at the cavalier attitude with which most contributors to this blog treat this issue. Afraid to be called "silly" one day for "overreacting"?

Not me. Having a little bit of egg on your face is a far cheaper price for freedom than losing your life for it.

I'm willing to do both.
For those who feel the same way, there is a petition drive going on that can be accessed through this article:
Total Revolt.

Alex Wallenwein
Euro vs Dollar Monitor

Dan ::: (view all by) ::: March 22, 2005, 12:13 AM:

I made a badge, and worded the pledge, if you'd care to take either. Here they are.