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Blogs Under Attack! Man Battle Stations!

The conservative blogosphere is abuzz with the news that the Federal Elections Commission is planning to clamp down on political blogging as improper "coordinated activity" under the McCain-Feingold campaign finance law. (Admittedly, the left is talking about it also.) All of the furor comes from an interview at CNET with Republican FEC Commissioner Bradley Smith in which he talks about Judge Kollar-Kotelly's recent ruling that the FEC can not exempt coordinated activity between a campaign and internet media from McCain-Feingold and the decision of the Democrats on the panel not to appeal.

The furor is a shame and a sham. Bradley Smith and the Republicans aren't nearly as concerned with protecting blogs as they are with undermining McCain-Feingold. Conservatives have always considered campaign finance laws an attack on the First Amendment (and they aren't all wrong, but a bit nutty about it). What better way to make this clear than to point the finger at those speech-suppressing democrats on the bench and at the FEC? I'm more than a little disappointed that a lot of the lefties appear to be buying his line; his "chicken little" routine doesn't withstand scrutiny.

There are so many odd aspects to his criticism that I feel that I have to apologize before even starting to write about the expected length of this post.

First, the conservative blogs (and Commissioner Smith, for that matter) are piling on Judge Kollar-Kotelly for ruling that the FEC can not expand the statutory language of McCain-Feingold to exempt blogs from its restrictions. Why? The statute plainly does not include them. Ordinarily this is exactly what conservatives want in a judicial opinion: adherenceto the statutory text and a refusal to allow unelected officials - like FEC staffers - from "making new law." It is apparently more fun for conservatives to blame a Clinton-appointed judge and three Democratic commissioners for the coming Armageddon in the blogosphere than it is to maintain ideological consistency.

Second, the Democrats on the commission probably knew exactly what they were doing when they declined to appeal Judge K-K's decision. Not only is the decision is invariably correct on the law, but from Gannon/Guckert to Armstrong Williams (not to mention Robert Novak), the Republicans have shown themselves to be quite willing to blur the lines between independent press and coordinated campaign activity. If the new media can be used by the campaigns to disseminate coordinated communications, a truck-sized hole has just been blown in the law. Who is surprised that the people who hate the law want an exception that will totally neuter it? In any event, the Republicans control Congress and the enforcement arm of the FEC. If they want to change the law to exempt bloggers - or prevent prosecutorial abuse of the law as it stands - they can.

Third, the faux-horrors that Smith proposes are insane and would be unconstitutional if the FEC tried to enforce them in the way that Smith predicts. To the extent that McCain-Feingold actually bars a blogger from "linking to a campaign website" or "posting a press release" from the campaign, I'd be willing to be the blogger that violates these stupid rules. I don't care what the internal FEC white papers say; that is clearly a First Amendment violation and I'd help tear down the law. Come and get me, motherfuckers.

Posted by Charles Star on 03/04/2005 | Permalink


Hey Charles,

The problem to me is that limiting the ways in which an individual may assist a political campaign inevitibly is deeply troubling.

I think that you sidestepped the importance of individual liberty by dismissing those with these concerns as being not 'all wrong, but a bit nutty about it.'

Dismissing these concerns as being about 'making new law' which Conservatives claim to oppose is, frankly, a bit of a straw man argument for two reasons, first, strict constructivists typically have no problem with judges 'making new law' when the law violates fundamental liberties, and second, because there are a lot of people who have deep concerns about the liberty implications of campaign finance reform who are not Conservatives.


Posted by: Rich Gibson | Mar 6, 2005 2:35:16 PM

It is deeply troubling, Rich, but so is the genuine fear of corruption by political contribution. I may be the only person in the world who thought that the Buckley v. Valeo did a good job of balancing those concerns. It is a bit nutty to think that regulation of campaign activity is the same as censorship, even if there are some serious slippery-slope issues to be wary of in the future.

As for the alleged "straw man," I'm sticking to my guns. This case wasn't being argued on constitutional grounds - it was a straight statutory interpretation; "fundamental liberties" weren't being argued over. Congress set the definition of "media" and the judge followed it to the letter. The squaking from concerned liberals doesn't bother me as much because they aren't strict constructionists to begin with.

Posted by: charles | Mar 6, 2005 2:49:21 PM

Hey Charles,

You Say "It is a bit nutty to think that regulation of campaign activity is the same as censorship, even if there are some serious slippery-slope issues to be wary of in the future."

I must say that to me this is not an abstract 'campaign activity' but basically the heart of the First Amendment.

Right now it is illegal for me to say certain things in the 30 or 60 or whatever days before an election. How is that not censorship?

Granted, the 'only' speech that is being censored is speech that names a candidate by name and appears on Radio or Television (do newspaper ads also count?).

Does the fear of corruption by political contribution justify the very real censorship of political speech?

As for Buckley v. Valeo, my take is that in summary they decided that you can spend your own money on your own campaign, but you can't spend your own money on someone else's campaign (without limits).

I just have trouble with the basic fairness of limiting what an individual can say. I know this is an emotional trigger point, but basically First Amendment protected speech is largely interchangeable with cash (at the trivial level, dropping out and flying to Florida to be a precinct walker is 'legal' while paying your children to fly to Florida to be precinct walkers is not legal. Speaking is legal, but paying for a commercial that will actually be heard is not legal).

And when we get right down to it, we both know that if we are to truly honor the intent of McCain-Feingold that DailyKos, among others, would need to be severely limited. That isn't just a random guy saying 'hey, I like this campaign' but a coordinated effort to affect multiple elections at multiple levels.

And while Bradley Smith clearly has an agenda, he is basically correct. If, as I suspect we both believe, the 'internets' have growing political power then the next battles to close loopholes will have to be fought at the level of looking at actual server logs, and assessing how much a 'click' is worth, and basically gutting the First Amendment...


Posted by: Rich Gibson | Mar 6, 2005 6:02:08 PM

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