ARGH: McCain FeinGold Threatens Blogs?

When I was in college it seemed like all my fellow Democrats were just obsessed with getting McCain-Feingold passed. They were convinced that the greatest problem in politics was money, that it disadvantaged the Democrats enormously, and that McCain-Feingold would finally bring politics back to the people. I have no idea if this reflected Democratic gospel throughout the country--Berkeley not being the best place to find an exemplar sample. I have noticed that Democrats seem particularly loyal to the idea of McCain Feingold even when it doesn't really help them mechanically (Bill Clinton having been one of the greatest party fundraisers of all time), and not necessarily willing to debate the nitty gritty of the regulations. Campus Republicans were against it, ostensibly on First Amendment grounds, but their arguments were almost always about the actual campaign contribution caps, not the advertising--and I certainly thought that we have to keep bribery under control. Still, I was a little lukewarm on the law. I applauded many of its ideas and motives, but was not confident in its mechanics. Apparently, I was right.

Josh Marshall at TalkingPointsMemo links to a CNET interview with Federal Election Commissioner Bradley Smith. It's terribly unclear, but it seems that previously, in 2002, the FEC specifically exempted the Internet from McCain Feingold rules aimed at prohibiting coordination in traditional advertising between a political campaign and an advocacy group, since advocacy groups are not subject to the same stringent donation laws that campaigns ostensibly are. Apparently Chris Shays (R-CT) and Marty Meehan (D-MA), the House sponsors of the bill, decided to sue the FEC over this, and last September U.S. District Court Judge Colleen Kollar-Kotelly decided that the special treatment of the Internet was against the intent of the law. In fact, it seems, an exemption for news organizations to just mention candidates may only apply to old media. The problem is--how do you define an online ad? Is a link an ad? Is mentioning a candidate positively an ad? Is reproducing campaign email an ad? Is a mass mail asking your friends to donate an ad? Kollar-Kotelly apparently wants to regulate all that. Which could easily include fining individual bloggers for linking to candidates and extolling them. And most individual bloggers, like me, can't possibly afford to deal with FEC fines. Inscrutably, the three Democratic commissioners seem to be on her side, stymying the FEC's ability to appeal her decision. The ability to say your say on the internet and spread information cheaply is probably the single greatest first amendment development of the last 100 years, and has done more to bring politics to the people since the advent of radio--yet it's under attack by those wishing to protect politics from special interests. ARGH.

In 2001, Josh Gerstein--the first online journalist I really followed, whose excellent ABCNews.com White House Wag column, has, sadly, been taken down by ABC--wrote a piece cleverly pointing out the asymmetries between the law's effect on newspapers and on television. You can catch a visually mangled version at web.archive.org. So now it isn't entirely clear what exemptions apply to what media and how. In fact, this whole story is a bit tangled up, and I'm still looking into it. To quote Bradley Smith from the interview: "This is an incredible thicket. If someone else doesn't take action, for instance in Congress, we're running a real possibility of serious Internet regulation. It's going to be bizarre."