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March 23, 2005

Apocalypse Never? I Love The Smell Of I Told Ya So

McQ points to a WaPo article which indicates the FEC will move forward on regulation of the Internet. Interestingly, the piece paints a very different picture from the impassioned clarion calls sounding across the B-sphere:

The agency is weighing whether -- and how -- to impose restrictions on a host of online activities, including campaign advertising and politically oriented blogs.

Election officials are reluctantly taking up the issue, after losing a court case last fall. The FEC, which enforces federal election law, had issued scores of regulations delineating how the campaign finance reform legislation adopted in 2002 ought to be implemented. But Reps. Christopher Shays (R-Conn.) and Martin T. Meehan (D-Mass.), who sponsored the legislation, complained that many of those rules were too lax, and they successfully sued to have them rescinded. The commission must now rewrite a number of those directions, including ones that left online political activities virtually free from government regulation.

"We are almost certainly going to move from an environment in which the Internet was per se not regulated to where it is going to be regulated in some part," said FEC Commissioner David M. Mason, a Republican. "That shift has huge significance because it means that people who are conducting political activity on the Internet are suddenly going to have to worry about or at least be conscious of certain legal distinctions and lines they didn't used to have to worry about."

But is this necessarily a bad thing? In all the sound and fury over free speech (which was never really the issue, in my opinion) the broader intent of McCain-Feingold has been obscured: to get the money out of politics. That McC-F does this badly (or fails to do it at all) is beside the point. It's the law of the land, and until it is repealed we're stuck with it. And while I will continue to keep a watchful eye on Washington, it does begin to seem that the B-sphere may be getting their collective knickers in a twist for naught. Because while there are aspects of blogging that legitimately fall under the purview of McCain-Feingold, they are narrow in scope and don't apply to the vast majority of independent bloggers. I continue to believe the FEC would be insane (and indeed has no authority) to regulate independent bloggers absent some financial involvement with political campaigns. It's that simple: keep your nose clean and your powder dry, and you've nothing to worry about.

In my first post on this subject, I commented:

No one, I think, wants to regulate grassroots speech: the individual blogger expressing his or her opinion.

... unfortunately, those bloggers who establish pecuniary ties to political campaigns or sponsor paid campaign ads on their sites have left the back door open to regulation by McCain-Feingold, Ms. Weintraub's assurances notwithstanding. For who could argue that blogs were not used to great effect by both campaigns in the last election?

Let's not forget the makeup of this commission: 3 Democrats and 3 Republicans. And so far 4 of the commissioners have said they are against regulating bloggers, who aren't financially-entangled with political campaigns:

Four commissioners -- Democrats Scott E. Thomas and Ellen L. Weintraub, along with Toner and Mason -- said in interviews that they oppose regulating independent bloggers.

"I really see no appetite at the agency for regulating bloggers," Weintraub said. "I would be very, very surprised if that was the result."

She said the commission would likely focus on other issues, such as whether to subject expenditures on Internet ad campaigns to the agency's contribution rules. The FEC requires campaign supporters who spend money on political ads in coordination with a candidate to report those expenses to the government and subjects them to contribution limits -- but the rules apply only to offline ads.

"We regulate campaign finance. We don't regulate speech in the abstract. We only regulate when money is spent," she said. "One of the great things about the Internet is that it's really cheap, and if people are not spending money, then it's really none of our business. Most of the time when people are sitting at their home computers, blogging, e-mailing -- whatever they're doing -- there really isn't any money being spent."

McQ adds:

They have no appetite for regulating bloggers because they'd never, ever succeed in doing so. It would begin an on-line insurgency which would completely overwhelm them and would demonstrate to all their total inability to enforce their regulation. Most agencies don't want unenforceable regulations. It makes them look inept. However, a narrower focus, such as "internet ad campaigns" is something they have some possibility of actually regulating, thus the shift in focus.

Just one more reason why I haven't been particularly alarmed about this brouhaha. There are a million ways to crack this nut without creating an unpopular and ultimately unenforceable law. Ideoblog discusses regulating bloggers in the pay of political campaigns, a problem I touched on during the Armstrong/Kos debacle:

The potential danger here is that voters may not be able to determine when a blogger is being paid for his opinion. Armstrong Williams and similar cases show that this can also happen in the mainstream media, but opening up the process to millions of blogs could make the problem much harder to solve.

Hasen recommends that those who are paid “should have to include on each blog page view a statement that the writing was paid for by the applicable candidate or committee.” This seems sensible, as long as the law clarifies who must disclose and what, and as long as more than trivial cash payments are necessary to trigger disclosure. However, any risk of “corruption” should be balanced against the threat that regulation will undercut a potential solution to the “corruption” problem by deterring broad participation by bloggers.

It is also important to keep in mind that open blogging can solve the specific disclosure problem noted above. As long as contributors must disclose, bloggers will have access to information that they can use to discredit other bloggers. Given the large number of bloggers, the non-disclosing blogger takes a substantial risk that some blogging critic will access campaign disclosures and publicize the contribution. The risk of reputational harm may be enough to constrain the more influential bloggers, who also have the most reputation to lose. So we can expect that these bloggers will make voluntary disclosures. This reduces the need to require all bloggers to disclose, or to decide who should be subject to a disclosure requirement.

In a post that nearly made me spit out my morning coffee, Greg Wallace has a few interesting comments on "the FEC's move to crack down on bloggers" (a move that, I'm just saying, seems to be opposed by 4 out of 6 of the sitting commissioners):

Much more than likely, this is yet another meme destined to morph into a noble blog-cause based on nothing more than a badly misleading headline of an interview rife with hearsay and assumption. And haven't we heard this before? Isn't Congress going to tax e-mail, or aren't atheists petitioning the FCC to get religious broadcasting banned from American airwaves?
I'll close with Hammond's restated position on this:
I worked in a congressional office for three years and I can say with some confidence, this is a tempest in a teapot if no one of the Hill steps forward to say, specifically, "I support the FEC's effort to crackdown on bloggers." I agree that momentum and inertia take over in regulatory agencies, but there has to be some inertia to begin with. "Cracking down on bloggers" in the way described [in the article] has no inertia unless someone can produce a real live lawmaker who wants to identify him or herself [as the] inertia-leader in the movement to crack down on links to campaign websites. If one such member of Congress can be produced, I'm right there with you. Just don't talk to me about crisis until it's something more than a fear of a potential problem.

I guess I'm not the only ornery person out there. Here's another.

There is nothing wrong with writing about this issue, nor watching it, nor debating it, nor with putting appropriate pressure on public servants. That is, after all, why we're here. But I get the impression some of the coverage of this issue in the blogosphere is somewhat one-sided, so if I appear to be poking a sharp stick into the hornet's nest, perhaps that's why. Witness this interesting little tidbit from the Campaign Legal Center: (via Shameless Self-Promotion)

In a recent interview with CNET, Federal Election Commissioner Brad Smith claimed that as a result of new campaign laws and and a recent court decision, online news organizations and bloggers may soon wake up to find their activities regulated by government bureaucrats. That would indeed be troubling, if it were true. Fortunately, Mr. Smith - an avowed opponent of most campaign finance regulation - is simply wrong.

The issue the FEC - and the courts - are grappling with is how to deal with online political ads by candidates and parties, and with paid advertising that is coordinated with those groups. As the Internet becomes a vital new force in politics, we are simply going through a natural transition as we work out how, and when, to apply longstanding campaign finance principles - designed to fight corruption - to political expenditures on the Web.

These laws are decidedly NOT aimed at online press, commentary or blogs, and the Bipartisan Campaign Reform Act of 2002 was carefully drafted to exclude them. The FEC has now been asked to initiate a rulemaking to work out how to deal with different kinds of Internet political expenditures, and there will be plenty of opportunity for public commentary. The Commission's duty then will be to distinguish candidate and party expenditures, and coordinated independent expenditures, on the Internet (which should be subject to campaign finance law like any other expenditures) from activity by bloggers, Internet news services and citizens acting on their own that should remain unregulated, free and robust.

Bloggers are funny. We get our backs up so easily. We spend an awful lot of time criticizing the mainstream media and not much time on the kind of blogospheric navel-gazing (that's 'in-tro-spection' to you erudite folks out there) that might make us into a force to be reckoned with. We can always get better.

If we want to be treated as a grassroots activity, I believe we ought to behave as a grassroots activity and that means no money from political campaigns and full, frank disclosure of any ties to political candidates. Howard Dean's savvy use of the Internet will not be lost on candidates in 2008. To think that blog-power will not be used - and abused - by candidates at some future time requires a willful blindness of the foibles of human nature that is simply stunning. The FEC is looking at real issues - real problems. Perhaps instead of chasing after red herrings - or even while we're chasing them - we owe it to our readers to take an honest look at the ethical issues here and how we as a community will rise to meet those challenges.

Like the mainstream media, which we so often criticize for being biased and for succumbing to hype and hysteria, we owe it to our readers to present the whole story.

And I worry a bit that that's not really happening here. Hence my sharp stick.

CWCID: Thanks to John at Wuzzadem for the Greg Wallace link. Great blog by the way, if you're looking to update your blogroll.

Posted by Cassandra at March 23, 2005 05:26 AM

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Damnable sensible woman!!!
Now I have to go find something else to rail half-cocked about!

Posted by: spd rdr at March 23, 2005 08:25 AM

My biggest concern, Cass, is what they will consider to be campaign finance. They want to take the money out of politics. Will this affect us if we have a direct link to a candidate, such as one of those side bars to GWB's site, even if it doesn't ask to donate $$$ and we aren't being paid? What if there is a link to an PAC or action group?

One restriction I would agree to are links that ask a reader to directly donate to a political party or PAC. Which would hurt Lefty sites in a big way, since seemingly half of them or more had a donate link on their sites.

Here is a scary thought about it, though it may be a stretch. They could literally rule that if you have a paypal or amazon "donate to me" box, google adds, blogadds, etc, then you are being paid for your political views, especially since they could not necessarily know where the money is coming from.

I suppose it will depend on what their actual rules end up being.

Posted by: William Teach [TypeKey Profile Page] at March 23, 2005 08:33 AM

My goodness, was that a compliment counselor? I'll be walking on air for the rest of the day.

Thanks :)

Posted by: Cassandra at March 23, 2005 08:36 AM

I agree William.

It will be very interesting. But McQ made a VERY interesting point -- imagine the enforcement end of all that, and if you don't believe agencies consider the dollars and cents aspect of enforcement when they pass regulations, I've a bridge I'd like to sell you. All those blogs.... all those links.... who checks 'em all?

Yikes. They had better be a pretty clear public policy interest here to justify all that effort and expense on the enforcement side, heya?

Posted by: Cassandra at March 23, 2005 08:39 AM

But the Campaign Legal Center's claims don't address nearly all of the issues Smith brought up, and they certainly don't refute his statement that the FEC is looking at ways to address the value of a link on a blog, for example. For one thing, their claims don't agree with the original suit and legal decision. I'd also check out what Democracy Project had to say about this before dismissing it completely.

Posted by: Big Dog at March 23, 2005 08:49 AM

Oh, definately, Cass. Enforcement would be darn near impossible. The big boys (and girls) on the internet(s) would be in trouble, blogs and static sites alike. Many Lefties would be in deep doo doo, such as Kos, MoveOn, and the DU, who do an enormous amount of fund raising for Dems. Such a shame ;)

Posted by: William Teach [TypeKey Profile Page] at March 23, 2005 08:59 AM

I don't think I've dismissed it completely, BD. My point is that it's a 6-member commission, 4 members have said they're against regulating independent bloggers and their interest is in following the money (i.e., only where money has actually been spent, not in valuing links).

And by the way, I did read that before writing this post, but frankly found it unpersuasive and it had been covered in every other conservative blogger's post, which is why I didn't use it here (since my point was to counterbalance). At issue is this line:

It admits that the court decision must be enforced, and that the FEC must "initiate a rulemaking to work out how to deal with different kinds of Internet political expenditures."

A link is not an expenditure, which brings me back to my earlier point: THE FEC IS TRYING TO REGULATE EXPENDITURES.

And as a sheer enforcement issue (and surely lawyers will admit this) I'm imagining some poor gobmint prosecutor trying to take a blogger to court and explaining to a judge - and they are notoriously hostile to this type of argument:

"Yes your Honor: we admit no money ever changed hands. Yes your Honor: we admit we can show no evidence of financial wrongdoing under McC-F. But...b...b.. DADGUMMIT! THAT LINK HAD FINANCIAL VALUE!!!!"

Judge (chewing on stub end of eyeglasses): "Uh-huh".

Quite frankly, the sum total of the arguments I've seen seems to be, not based on fact, but on some amorphous "I don't trust them...". Fine, says I.

Don't trust them. Watch and argue and monitor and attend public hearings. AND PRESENT ALL THE FACTS, AND BE RESPONSIBLE BLOGGERS, and maybe, just maybe, calm down just a bit.

Of course I was saying the same thing when everyone was screaming that Dubya sucked at debating and Kerry was wiping the floor with him and he couldn't possibly win in November, so I'll just go on home now.

Heh... snarky female.

Posted by: Cassandra at March 23, 2005 09:05 AM

[deep breath]

I feel like I should reiterate my central point.

I'm not saying there's nothing to this.

I'm not saying you're stupid for being concerned.

I'm not saying you should blindly trust the FEC.


In my reading, I'm getting a different picture than what I'm seeing portrayed on the vast majority of blog posts on the subject. I'm not seeing a whole lot of balance.

And I'm presenting what I see at this point. My right, and as far as I'm concerned, my duty. I trust that readers will read what's out there and make up their own minds.

Posted by: Cassandra at March 23, 2005 10:18 AM

Criminalize everything, and everyone is guilty.

Don't think that someone hasn't thought about this, in its entirety.
Political blogging of any stripe could be EASILY regulated by requiring filings by the blogger to the FEC (and make it REAL COMPLICATED, so you have to hire an expensive lawyer) and usage DENIED by your IP carrier under FEDERAL LAW if you aren't behaving in an approved way.

We could have one faction of bloggers ratting out (informing on) another faction, just like any authoritiarian state. It doesn't matter if it's left or right. They will do the government's bidding just to prove a point.

And we should also remember that the main (unspoken) purpose of McCain-Feingold was to PROTECT the incumbents.

And that's my two bits.

Posted by: Don Brouhaha at March 23, 2005 01:20 PM

There are lots of things they could do Don.

The question is, will they? How likely is it? Who benefits, and why? Are there any indications that they're going in this direction?

The more complicated it is, that means someone on the FEC end has to process all that paperwork.

And if the unspoken purpose of McC-F was to protect the incumbent (and I'm not saying it wasn't), it was a miserable failure in the last federal election if you follow the money.

Just a thought.

Posted by: Cassandra at March 23, 2005 01:47 PM

Hmmm. Time to put on former cop hat.


When making a speeding stop, you would many times get the question - "Why me? Why not the fifteen people who passed me?"

The answer is simple. The fisherman does not catch every fish who swims by. Mebbe they slowed down before I could get the gun on 'em. Mebbe all the traffic was moving at roughly the same speed and I didn't notice. Mebbe I just got there.

What's it matter? I got you. And now everyone is slowing down for a while, because they know I'm here.

Which is why I put myself by the school zone/dangerous intersection/construction site, etc.

They don't have to try to enforce it on everybody, any more than the IRS audits everyone.

You do what you can. And if you get caught - you get all ground up into fishbits.

Just sayin'. None of which detracts from Cassie's central point - but does address a peripheral one.

Posted by: John of Argghhh! at March 23, 2005 03:29 PM

Oh crap John. You are, of course, correct.

That's an excellent point, and I knew someone would bring it up because it popped into my head when I was halfway through my post.

Obviously anyway you don't care about enforcing anything against twits like me - you go after the big guys like KOS.


That still does not address what the legitimate interest (i.e., corruption) is addressed by "shutting blogs down" via valuing links in the manner several bloggers have said the FEC is contemplating (well, actually, 2 of 6 commissioners may...possibly...be contemplating, and from what I can gather Brad Smith ain't one of them so NOW WE'RE DOWN TO ONE OF SIX!).

It simply (IMO) is far too much work for far too little payoff: the government is going to have a helluva time making the case when weighed against the freedom of speech issue. The potential harm of shutting down speech is awfully clear. The potential harm from allowing a blogger to merely link to a site (ABSENT MONEY CHANGING HANDS, AS IN AN AD) or repeat campaign verbiage that is already freely available to any fool who can use a mouse (AGAIN, ABSENT MONEY CHANGING HANDS) is going to be damned hard to prove.

My guess is that even were such rules to go into effect, a judge somewhere is going to look at them with a VERY hairy eyeball.

Posted by: Cassandra at March 23, 2005 03:43 PM

True on the judge part. At least one would hope so.

However - for most of the munchkins it will only take a 'cease and desist' order to shut 'em up.

And a couple of zealous net 'surfers with a printer and franking machine are all that is needed.

And god help us if we get an ambitious prosecutor.

Posted by: John of Argghhh! at March 23, 2005 03:53 PM

I still say that, if they are going to do anything, it should be about those who ask for contributions for a PAC, candidate, or Party. How would the Dems raise money then? It would also take away half the point of Lefties blogging. They could be Moonbat 100% of the time ;)

Posted by: William Teach [TypeKey Profile Page] at March 23, 2005 04:01 PM

Although...the speeding or IRS analogy isn't quite the same.

While the cops cannot be expected to catch every violator and the threat of capture is plenty a deterrant to many others. When I complain that you should have caught someone else too, I cannot prove my case (I don't have a radar gun and camera or your tax returns) so it rings somewhat hollow therefor we don't expect the cops to follow up on it.

However, due to the semi-permanence and public nature of the internet, when you catch me and I complain about others and then present you (and everyone else in the world) with all the evidence you need to convict in a neat little package, then you are essentially bound to follow up. If you don't you'll have a PR nightmare on your hands as being a selective (biased) enforcer and if you do, you will be swamped in more paperwork than you can imagine as folks like XRLQ form "rat-out" coalitions.

In this, the threat of civil disobedience (as a last resort, of course) may be a deterrent to enacting law that you will lose no matter what you do. The only way to win is not to play the game.

Posted by: Masked Menace© at March 23, 2005 04:06 PM

Good point, William :)

Posted by: Cassandra at March 23, 2005 04:10 PM

The danger is precisely one of selective enforcement: prosecute people they don't like, and let the others go.

But the problem with such a course of action is the bad publicity they will get, and a lot of it from this uncontrollable thing called the internet. I'm sure these people are mindful that putting handcuffs on a citizen blogger in his/her pyjamas is going to look so bad, even the MSM will probably join in in publicizing it. And the rest of us will proclaim it to the far corners of the earth.

You're right: watch and wait. But in defense of the seemingly hysterical bloggers you're observing, part of their (our) point is to make sure the FEC understands what it's up against: to make it clear that a unified online world—left and right together—would be a formidable force, and that anything smacking of First Amendment violations would cause activism the likes of which they've never seen.

Some of what's going on is simply, "don't misunderstand the fight you could have on your hands if you make the wrong choices, here." A little friendly warning to the FEC not to do anything insane.

Posted by: Attila Girl at March 23, 2005 05:29 PM

MM© Exactly - I'll have both sides of the fray reporting on each other. And I don't have to make it a criminal sanction, I can go for civil actions, in mass.

The hammer is there, and the ability to chill the meeker among is there.

Which is summed up nicely by Attila Girl as to why this blogosteria should happen to some extent. Restless peasants with pitchforks and torches *do* get the attention of the political class.

Small numbers of misbehavers go to jail.

Posted by: John of Argghhh!!! at March 23, 2005 05:46 PM

And I think that's all to the good, AGirl. I have never had any problem with vigilance and I was positively thrilled to see the left-right coalition (for once).

I guess I just think arguments are less easy to dismiss if you stick to the facts and stay calm - when you start right off the bat promising to disobey the law, that sort of thing can backfire.

I'd be thinking, "What a bunch of nutjobs - those are exactly the kind of people who CAN'T be trusted and need to be reined in". You don't come across as reasonable or sane, which is a shame. Often your arguments are dismissed out of hand.

Posted by: Cassandra at March 23, 2005 05:53 PM

MM© Exactly - I'll have both sides of the fray reporting on each other. And I don't have to make it a criminal sanction, I can go for civil actions, in mass. - John

Do we have the infrastructure to handle the flood of paper involved? Wouldn't the court system grind to a halt? Not to mention the extreme cost to bring every incident to trial. This would seem to me to get the peasants out with the torches and pitchforks quite nicely as well.

Posted by: Masked Menace© at March 23, 2005 06:01 PM

Well if you really want to know what I think, I wonder why the Blogosphere isn't up in arms about this:


If there were ever something where good timing collided with them having their pantyhose in a knot, THIS IS IT FOLKS.

We all hate McCain-Feingold.

Everyone is all discomboobulated over the FEC.

Now we find McCain-Feingold was foisted on us by...

The efforts of Pew and the other liberal foundations, which include George Soros's Open Society Institute and the Carnegie Corp., were aided by the news media's complicity. The American Prospect, a liberal magazine, put out a special issue on campaign finance reform in 2000 that was paid for by a $132,000 Carnegie grant--a fact the magazine failed to disclose.

National Public Radio openly accepted $1.2 million from liberal foundations to provide such items as "coverage of financial influence in political decision-making." Its campaign finance reporter, Peter Overby, is a former editor of the magazine put out by Common Cause, a major supporter of McCain-Feingold. No one suggests there was direct collusion between NPR and campaign finance lobbies. With the money and personnel available to NPR, there didn't need to be. Sympathetic stories on the need for campaign finance reform flowed naturally. Sounds like the kind of "faux news" that liberals are complaining the Bush administration was guilty of engineering when it put out video press releases or provided conservative commentator Armstrong Williams with a grant.


Didn't write about this today. Didn't have time.

Posted by: Cassandra at March 23, 2005 06:04 PM

Cris Muir had something on it last Friday. I was wondering if anyone else was going to make some noise about it, and just figured you were doing more research on it for a thorough destruction of it. For groups that make such a big deal out of the influence of "special interests" it's incredibly hypocritical.

Posted by: Masked Menace© at March 23, 2005 06:21 PM

Last Friday I wasn't making any long-range plans, Menace. Apparently I have missed quite a bit over the last week - today's the first I heard of it, but I will check it out.

Posted by: Cassandra at March 23, 2005 06:38 PM

hey, Cass, check this link out: http://www.democracy-project.com/archives/001396.html

I think you will like it.

Posted by: William Teach [TypeKey Profile Page] at March 23, 2005 07:58 PM

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