Bloggers Beat The FEC, So Now What?

Originally published at NationalJournal.com
By K. Daniel Glover

Bloggers won. That was the consensus two weeks ago, after a yearlong, off-and-on blog swarm that clearly shaped the thinking of the Federal Election Commission about campaign finance rules [PDF] for the Internet.

That consensus is on the mark, too. Ordered by a federal court to write those rules, the FEC ultimately gave bloggers exactly what they wanted: a broad exemption from regulations that focus instead on political advertisements online.

Bloggers will not have to disclose election-related payments they receive, nor will they have to post disclaimers about such payments. In essence, the six federal election commissioners voted unanimously to preserve free speech online, at least to the extent the court would allow.

So now that the Internet campaign law of the land is settled, at least for the moment, what does it mean for the blogosphere in 2006, 2008 and beyond? The answer depends on whom you ask, so I asked four people who were central to the debate over the past year.

The first was Brad Smith, the former FEC member whose interview with News.com triggered the blog swarm. Smith left the agency last summer to return to teaching law in Ohio. Ironically, he also is now a blogger at RedState.

He is a harsh critic of campaign finance laws in general and never wanted to see any rules for the Internet. He often lamented that the FEC refused to keep fighting the courts and campaign finance advocates on that issue. But he is heartened by the rules the FEC crafted.

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Brad Smith Departs To Cheers And Jeers

Originally published at National Journal
By K. Daniel Glover

In a January 2004 speech before the American Conference Institute, then-Federal Election Commission Chairman Bradley A. Smith delivered a scathing critique of McConnell v. FEC, a Supreme Court ruling from the previous month that had upheld campaign finance reforms as constitutional. “Now and then,” he said, “the Supreme Court issues a decision that cries out to the public, ‘We don’t know what we’re doing!’ McConnell is such a decision.”

That was just a warm-up jab. A passionate defender of unfettered political speech, Smith then used what has since become a favorite comparison of his: “If it was unclear before, it is now a fact that our Court gives less constitutional protection to the right to criticize the voting record of an incumbent congressman close to an election than it does to virtual child pornography, cross-burning, sexually explicit cable television programming, topless dancing, tobacco advertising, flag-burning, defamation, and the dissemination of illegally acquired information.”

Such pointed rhetoric, a hallmark of Smith’s five-plus years at the FEC, explains why self-styled campaign reformers are celebrating Smith’s departure from the commission last month. But it just as clearly reveals why free-speech advocates are lamenting the loss of a man they see as a principled, fearless, and eloquent champion of the First Amendment.

“It seems that what the ‘reform industry’ wants is a puppet, and if [a commissioner] isn’t their puppet, then they run to the media and whine about how awful that person is,” said Cleta Mitchell, a lawyer at Foley & Lardner who practices before the FEC. “So, Brad Smith isn’t and wasn’t their puppet. Good for him.”

Then-Senate Majority Leader Trent Lott, R-Miss., and Kentucky Republican Mitch McConnell, the senator whose challenge of the McCain-Feingold campaign finance law eventually went to the Supreme Court, suggested Smith for the slot on the FEC back in February 2000. Smith’s nomination quickly became controversial because of his criticisms of campaign finance law during his time as a law professor at Capital University in Columbus, Ohio, a post that he now has resumed.

Sen. John McCain, R-Ariz., compared putting Smith on the FEC with “confirming a conscientious objector to be secretary of Defense.” McCain’s allies in the advocacy community agreed. “The full Senate should reject Bradley Smith to serve on the FEC because of his fundamental disagreement with the law he would be sworn to enforce,” said then-Common Cause President Scott Harshbarger in a March 2000 statement.

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‘Blog Swarm’ Stings The FEC

Originally published at National Journal
By K. Daniel Glover

The Federal Election Commission’s announcement that it intends to extend campaign finance restrictions to Internet communications is generating plenty of hostility online, particularly among the Web diarists known as bloggers.

After one FEC commissioner hinted that the agency might slap regulations on the Web activists sometimes credited with rallying the masses during the 2004 presidential election campaign, bloggers protested online. “This is something bloggers of all political stripes should unite against,” syndicated newspaper columnist Michelle Malkin declared on her blog.

Most of the FEC commissioners insist that they have no interest in regulating the political speech of individual Web users. In draft regulations approved on March 24, the agency says that the proposed rules are designed to “have an extremely limited impact, if any, on the use of the Internet by individuals.”

But many bloggers remain skeptical. In reaction to the FEC’s plan to harness part of the Internet, individual online activists set off a “blog swarm.”

The commission began pondering how to apply campaign finance laws to the Internet in 1999, well before the McCain-Feingold law was enacted and well before blogs were widespread and influential. During the 2000 election cycle, the activities of Web sites like the now-defunct Voter.com — which billed itself as “a central clearinghouse of candidate and issue information, provided by the candidates and issue advocates themselves” — raised questions about whether online campaign activities fell within the FEC’s jurisdiction.

In 2001, the FEC proposed rules that addressed issues such as hyperlinks and political endorsements on the Web sites of corporations and labor unions. The planned regulations generated thousands of comments, most of them negative. Ultimately, the FEC did not issue final regulations.

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