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April 14, 2005

Online Freedom Of Speech Act

There is a bipartisan effort underway to amend McCain-Feingold. Twin bills before the House and Senate would exclude all Internet communications from the definition of "public communication" regulated under McCain-Feingold. Sen. Harry Reid (D) and Rep. Jeb Hensarling (R) led the bipartisan effort. The language could not be more simple:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
Paragraph (22) of section 301 of the Federal Election Campaign Act of 1971 (2 U.S.C. 431(22)) is amended by adding at the end the following new sentence: ‘‘Such term shall not include communications over the Internet.’’.."

Patterico comments:

This is far better than begging the FEC for a media exemption (which I have previously opposed), for two reasons.

First, and most important, it is not squishy. Bloggers can heartily endorse candidates, urge readers to contribute to candidates, and engage in other robust political speech. They need not feel chilled in the slightest by the fear that they are crossing some nebulous line separating “legitimate” bloggers from those whom government deems undeserving of the protection of the media exemption.

Second, the amendment will have the force of law, just as McCain/Feingold does. I would much prefer a Supreme Court ruling or constitutional amendment that makes clear that McCain/Feingold is unconstitutional. But I prefer a statutory change to an effort to effect change through the regulatory process, primarily because changes that occur through the political process have a more permanent feel to them.

It will likely surprise no one that, though inclined to support the amendment, the contrarian in me is suspicious of blanket exemptions. I already noted my ridiculously overblown ethical concerns about disclosure when a blogger receives pay from a political campaign. Rick Hasen agrees bloggers should disclose, but he raises what (to my mind at least) is a far more interesting point: will consideration (or the lack thereof) of who is exempt from spending limits under McCain-Feingold have unintended consequences?

The FEC rulemaking requires it to consider the question of who is a journalist. That question matters very much because journalists - even if they are paid by corporations or unions - are exempt from otherwise-applicable spending limits.

Generally speaking, individuals are allowed to spend as much money as they want supporting or opposing candidates for federal office, though those spending significant sums must file certain reports with the FEC and include information on funding sources on the face of certain campaign literature. In contrast, corporations and labor unions cannot spend any of their treasury funds on certain election-related activities, and must fund these activities through separate political action committees, or PACs.

So what effect will creating a blanket exemption for Internet communications have? Have we now allowed unions and corporations a loophole under McCain-Feingold by proxy?

Like Patterico, I support the Online Freedom of Speech Act, but with reservations. I wonder whether this has really been well thought-out. Many times these things are kneejerk reactions to political pressure (blog-swarms, if you will) and like most hastily considered acts, they have unintended consequences. Like Patterico, I prefer a statutory change to agency rulemaking but unlike him, I most emphatically do not prefer a court decision to a legislative solution. That is precisely what we have had too much of lately: justices attempting to cast their every whim in stone, never to be revisited. Unlike a SC decision, statutes can always be amended as needed to reflect changing conditions. I am reminded of the words of Justice Scalia:

The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law trained elite) into our Basic Law.

We don't have a convenient spyglass into the future. If we did, things would be so much easier. I would note here that over and over again this FEC debate has been cast as a fight over free speech rather than as an attempt to apply the provisions of McCain-Feingold (which we all agree is bad law, but is, after all the law of the land, to the Internet as the FEC is required to do). And I suppose it could have turned out that way. It may still, one day: the future is fluid and unknowable and I certainly have no crystal ball.

The blogosphere caught fire when Brad Smith raised the alarm. It didn't seem to matter to anyone that 4 of the 6 commissioners had previously gone on record opposing regulation of individual bloggers absent financial involvement, nor that the draft rules that came out were in perfect alignment with their prior comments to that effect.

The second alarm happened when it appeared that San Francisco might try to regulate bloggers, but that fear was quickly put to rest when the proposed ordinance turned out to be far less draconian than originally billed, and the city quickly agreed to sub a provision exempting bloggers.

Facts are stubborn things. Some continue to believe in an evil government conspiracy to persecute grassroots bloggers. This requires a willful dismissal of highly suggestive evidence, to include the undeniable fact that 4/6 of the commissioners publically opposed regulating bloggers, no move was made to regulate until a court forced the FEC's hand, and information about the FEC's rulemaking process kept "leaking" to the blogosphere... I wonder why?

Others believe that disaster was only averted by threats of mass civil disobedience. The interesting corollary here is that those who justified their willingness to break the law before even attempting to work the system justified this tactic by saying the government showed no respect for their wishes. Yet now they are crowing about how the government caved in so quickly.

So how was that again? You have to go to general quarters because the lawmakers don't respect your civil rights, but they cave at a few thousand emails and phone calls? You can't have it both ways: seems to me your rationale just went away. Perhaps, just perhaps, things move at a deliberate pace. I think we are seeing the power of the blogosphere, and the power of representative government.

This power never went away: it was always there. For all we complain about them, Congress are still, truly public servants. But servants presuppose a master who is willing to supervise and hold them accountable. They cannot continue to hold office if they incur our displeasure. I'm not surprised to see this measure come up in Congress. Several weeks ago I suggested that the anger against the FEC was misplaced. It was McCain-Feingold that needed to be changed, and now it appears that may be happening.

Three things are needed to make representative government work: faith, scrutiny, and citizen involvement. This is why I so harshly criticized the idea of civil disobedience before legitimate efforts to change McCain-Feingold and why I will continue to do so. I truly believe that if one examines the facts in this story, they reflect well on our system of government and the value of citizen involvement.

And I truly believe that the rule of law, with the protections it provides to the weakest among us, is a concept worth upholding And it is we who must uphold it. In the end it is the rule of law that guarantees our civil rights; without it, we are forced to defend them ourselves at the point of a gun. And though most of us are willing and able to do this, I think we would prefer that our children live in a country where we don't have to brandish firearms simply to live as free human beings.

That is why my husband is in the military, and why I have supported him for twenty-five years. For all the romanticized talk of rushing to the ramparts, most of us don't really want to see that day come when we are forced into the streets with pitchforks. We much prefer to outsource our freedom: to let someone else worry about defending it. And the price is small. All it requires is a little vigilance.

Posted by Cassandra at April 14, 2005 05:34 AM

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Cass, I would far rather they err on the side of freedom and PROTECT the internet as a medium of robust speech that REGULATE it. The nose of the camel will be in this tent.

If the unions who have websites want to endorse, SO WHAT? A verbal isn't cash. It would force the candidates to show where THEY spent their money in terms of paid time. Heh. I would rather the candidates be regulated than the people who vote for them.

Posted by: Cricket at April 14, 2005 09:17 AM

That's the difference here though Cricket.

The FEC was going to distinguish between online fundraising and speech.

I'm not at all sure that this is what the amendment to McCain-Feingold does - it appears (at least on first impression) to say that any online communication is exempt from the provisions of McCain-Feingold simply because it occurs online.

In other words, the exact same communication that would be illegal otherwise under McCain-Feingold will be legal as long as it happens online.

Excuse me, but I don't see that sort of thing as being good for bloggers IN THE LONG RUN. Because it will be abused. And then there will be a backlash.

I can't help wondering whether it wouldn't make more sense to craft something more narrowly worded that is consistent with the spirit of current law. Or amend McCain-F so that the same rules apply across the board. I don't see how it is a good thing to have inconsistent law.

Posted by: Cassandra at April 14, 2005 09:23 AM

And as far as the 'nose of the camel argument', I keep hearing that one floated - it is all-too-often used to substitute for research or a well-reasoned argument (not by you, Cricket - by other bloggers).

Let's take a look at the incredibly vigorous attempts of the FEC so far to get the big money out of politics.... Hooooo-ee!

Wow. I'm impressed. Bush v. FEC is STILL working its way through the court system and can't get any traction. The FEC is not, and has never been, interested in going after money in politics in any aggressive or consistent fashion. Show me where I am wrong.

Show me how they impeded George Soros in the last election.

Ummm... yeah.

I am no opponent of keeping an eye on this. I have been keeping an eye on it, and will continue to do so.

I have been writing very detailed and well-researched posts on the issue, consistently, for weeks. I've put a lot of time and effort into it.

I try not to scream "the government is after my rights" or "the government is my best friend" without citing ample evidence to back up what I am saying. I have read an awful lot of one- or two- paragraph posts with, maybe, one link in them over the past month or two, and I try to be more thorough in covering the issue. I try to actually READ at least the pertinent parts of the proposed rules when they come out instead of panicking.

And I worry sometimes when I say, in effect, "I told you so" in a post, but I'm not doing that to gloat, because I could still turn out to be wrong and then all those prior posts will get looked up by other bloggers and my nose will be rubbed in it, and rightly so. I do it to make an argument to allow people who are surfing in for the first time to follow a trail to prior posts.

Posted by: Cassandra at April 14, 2005 09:38 AM

Heh. I know you are responsible for researching it and thinking it through and letting us follow the story.

I know what you meant about the nose in the tent.
I was thinking in shorthand and figured you could read my mind. :)

Any time government gets involved they have shown themselves to be arbitrary and restrictive. That rules or laws under one admin will be rigorously enforced or ignored under another.

Sometimes it isn't the consistency of the law, it is the application of the existing laws.

As far as the internet goes, I believe in a lassaiz faire approach to it. Let it regulate itself.

Posted by: Cricket at April 14, 2005 01:30 PM

rules or laws under one admin will be rigorously enforced or ignored under another

That's an excellent point, Cricket. Lord knows we see that in the military all the time. And the far better solution (perhaps) is just to repeal McCain-F and have done with it: it certainly isn't keeping the money out of politics.

On the otter heiny, aren't we in effect saying to one class of people (bloggers): "OK, you can perform certain functions on behalf of a candidate" and to another, "You cannot perform certain functions on behalf of a candidate" for no other reason that that they are doing it online? That's what I'm asking, because I don't know the answer.

Take Hasen's example:

A few months before the 2004 election, the incorporated National Rifle Association began NRANews, a daily news and commentary program broadcast on satellite radio. The NRA is claiming the press exemption. And so it goes.

OK, you say, I have no problem with that. Now, make it America Coming Together, MoveOn.org, or any of the plethora of other organizations that have strong ties to the DNC and are thinly-veiled proxies for the Democratic candidate. Why, now, do we even have McCain-F at all? You have just neatly eviscerated it by writing in a backdoor loophole to campaign finance spending limits.

Of course this simply amounts to an under-the-sheets repeal of McCain-F, but in reality what it will mean is selective enforcement, and that is never good news for the Republican party.

Posted by: Cassandra at April 14, 2005 01:48 PM

So as I read it, since M/F opens a can of worms with regard to the internet and campaign finance, the best thing to do is shelve it? I can hang with that.

Especially when it comes to selective enforcement.

Posted by: Cricket at April 14, 2005 01:55 PM

I meant 'repeal,' not shelve...must need more DP.

Posted by: Cricket at April 14, 2005 01:56 PM

I don't know - this whole thing gives me a colossal headache. There is something about it that violates the space-time continuum. I half expect to wake up and find that I've been propelled back in time and become my own grandparent, thus causing myself never to have been born and thus forever altering the course of human history beyond hope of repair.

Or maybe it's me who has been violated.

I certainly feel that way.

Posted by: Cassandra at April 14, 2005 03:48 PM

The interesting corollary here is that those who justified their willingness to break the law before even attempting to work the system justified this tactic by saying the government showed no respect for their wishes.

I was one of those bloggers, but that wasn't my argument. I assume that government will show no respect for my wishes.

My argument is that in cases about fundamental rights, as opposed to mere economic or social regulation, disobedience is "working the system." You disobey, get prosecuted, and hope that you win.

Fights about rights, as opposed to other things, are not susceptible to democratic processes. Why? The rights are fundamentally anti-democratic. The First Amendment is entirely unnecessary to protect people whose speech is consistent with the wishes of the majority. It exists only to protect the speech of those who are in the minority. Therefore, democratic processes are inherently unsuitable for dealing with these situations. That's why we have courts with life-tenure judges on them: to uphold the fundamental rights of people who do not have the votes to win in the legislature.

Now, that does not mean that I don't hope that the majority arrives at a policy that protects speech as expansively as I believe the First Amendment protects it. But it either will or it won't, and if it doesn't then disobedience is the only "working within the system" that we have.

Posted by: TigerHawk at April 14, 2005 08:36 PM

Mssr. Le TigerHawk:

With respect, because you did not annoy me as much as several others, and not all people made the same argument so one cannot lump them all into the same basket, our argument was over timing and tactics. And yes, I am a stubborn woman.

If your back is to the wall, you fight.

My point was that no one's back was to the wall yet. Not even close. So IMO, talk of fighting was way premature, and even, I would argue, quite possibly counterproductive in that it distracted from the main point.

Be honest: how many of those who were talking so much trash THEN are blogging seriously about this issue now, when it matters? That is my beef.

These things flare up like nine-day wonders. Everyone gets their pantyhose in a knot and then forgets about it the next day. Anger is fun, constant vigilance is not. No one likes detail. No one likes to read the f-ing fine print.

Yes, I'm a pain in the butt. I know it. But I think it's possible that I might have a point, as well.

Posted by: Casserole at April 14, 2005 08:48 PM

"Pain in the butt", just what I need on top of the terrible pain in all the diodes down my left side.

Posted by: Marvin at April 14, 2005 09:22 PM

I'm sorry Marvin. That's all I seem to be good for these days.

Posted by: Casserole at April 14, 2005 09:29 PM

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