Trust Us. We’re from the Government.

So now the Giant Flaming Sauron Eye of the Federal Government has focused squarely on us, the American people.

What did we do to deserve this? What was our transgression? Why, we had the temerity to create these strange things called “weblogs” and with them we published our beliefs and opinions – our political opinions.

In short, we decided to go play in the big boys’ sandbox, and the big boys are decidedly unhappy about it.

I’ve already told you that the FEC seems set to go after bloggers (and, by extension, every single American who dares to voice a public political opinion) and that we’re not quite ready to roll over and take it. This week, though, the government spoke back.

Their message? Trust us.

Senators McCain and Feingold issued a brief statement that basically boils down to, “We’re not going after bloggers, just those other cash-happy money mongers”.

The latest misinformation from the anti-reform crowd is the suggestion that our bill will require regulation of blogs and other Internet communications. A recent federal court decision requires the Federal Election Commission to open a new rulemaking on Internet communications. The FEC will be looking at whether and how paid advertising on the Internet should be treated, i.e., should it be treated differently than paid advertising on television or radio. This is an important issue — since BCRA outlawed soft money, we need to make sure that the FEC doesn’t try once again to subvert the law by creating loopholes. So far, the FEC has not even proposed new regulations. When it does so, there will be ample opportunity for comment and debate about whatever proposal the FEC makes.

This issue has nothing to with private citizens communicating on the Internet. There is simply no reason – none – to think that the FEC should or intends to regulate blogs or other Internet communications by private citizens. Suggestions to the contrary are simply the latest attempt by opponents of reform to whip up baseless fears. BCRA was intended to empower ordinary citizens, and it has been successful in doing so. We will continue to fight for that goal.

Now, mind you, those “powerful monied interests” take the form of a member of the FEC, Bradley Smith. But never you mind that Smith isn’t a tool for a powerful lobbying firm or that John McCain seems to be up to his eyeballs in “powerful monied interests”. All we have to believe, the Senators say, is that, “There is simply no reason – none – to think that the FEC should or intends to regulate blogs or other Internet communications by private citizens.”

Well, no reason, unless you happen to read what Ellen Weintraub, the Chair of the FEC had to say later in the week. Ms. Weintraub, in a piece charmingly called “Bloggers, chill out already!”, lets the cat out of the bag a little bit. Says Weintraub:

First of all, we’re not the speech police. We don’t tell private citizens what they can or cannot say, on the Internet or anywhere else. The FEC regulates campaign finance. There’s got to be some money involved, or it’s out of our jurisdiction.

Second, let’s get the facts straight. Congress, in the Bipartisan Campaign Reform Act, limited how one can pay for communications that are coordinated with political campaigns, including any form of “general public political advertising.”

Got that? Your speech is just fine as it is. No problem.

Unless you ask the Supreme Court. See the Supremes decided in 2003 that it’s just not speech that’s considered “political speech”. Money is speech, too. Further, “money” can be defined as things like “in-kind” contributions also.

Here’s a rough analogy. You can choose to donate cash to a charity and claim it on your taxes. But you can also clain the value of any time you spend working for a charity also as a contribution. Your time and work has a cash value, too, and that counts as an in-kind contribution which you can also claim on your taxes.

The same thing applies to campaign contributions. Not only does the cash you spend on political spech matter but so also does the cash value of what you produce or the time you spend producing your speech.

Right now, that’s a loophole in the law. But the FEC seems poised to move on the loophole thanks to a recent court decision. Weintraub speaks to that.

The commission issued a regulation defining those communications to exempt anything transmitted over the Internet. A judge struck down that regulation as inconsistent with the law. So now we’re under a judicial mandate to consider whether anything short of a blanket exemption that will do.

For example, can paid advertisements on the Web, when coordinated with a particular campaign, be considered an in-kind contribution to that campaign? Context is important, and the context here has everything to do with paid advertising, and nothing to do with individuals blogging and sending e-mails.

The FEC’s hands are tied by the judge from giving a blanket exception to speech on the internet. It has to create a more rigorous rule. The question Weintraub asks here is indicative of what the FEC is going to have to decide.

And herein lies my problem.

Weintraub says “context is important”. It’s impossible, though, to determine context without examining content. That examination means that the FEC is going to , by necessity, have to read each politically-based statement on every blog to decide whether it constitutes an in-kind contribution. Furthr, it’s going to have to divine whether that speech was coordinated in some way with a political campaign.

Now I don’t know about you, but that seems to be a job that neither I nor any human being is capable of handling. How will the FEC decide whether a certain blog post is “coordinate” when cordination could be be something as small as a bloggers’ reaction to a statement made my a political candidate (as we saw in the 2004 campaing by groups like MoveOn.org)? How can the FEC even begin to put a cash value on a hyperlink and how will it be able to value the difference between a hyperlink on a blog that gets thousands of daily viewers and one that only gets a couple hundred?

More importantly, though, do we really want the FEC poking around and trying to even answer these questions?

I’m not mollified by the government’s reassurances that we aren’t targets of the next round of legislation. There’s every reason to believe that we are and none to suggest that our freedom of speech will remain intact once the FEC finishes their rule-making.

No related posts.

Category: The Good Old US of A