Countering Candor at the FEC or, How Do You Stop a Blogswarm?

Let's say you favor, either through conviction or employment demands, the Bipartisan Campaign Reform Act of 2002, commonly known as McCain-Feingold. You're stunned by a blogswarm born of a candid interview one of the commissioners of the FEC grants to an Internet publication. What do you do? Send out a press release written by a man who served on Al Gore's legal team during the Florida recount controversy in 2000, perhaps? A man who's employed by a lobbying firm headed by the former general counsel to Senator John McCain (not that you'll learn that from his official company bio.)? Who is also the former commissioner of the FEC?

Well, perhaps that's not what you would do, but it's what the forces working to ensure that the "reform" of our campaign laws isn't weakened, and that it indeed will be applied to the Internet, in fact did. I'm sure I wasn't the only blogger who, having posted yesterday on FEC Commissioner Bradley Smith's interview with CNET, received a press release, "Setting the Record Straight: There is No FEC Threat to the Internet," late last night from Mark Glaze (more below). The stated purpose of the release is to deny the validity of Commissioner Smith's charges that, thanks to McCain-Feingold, the FEC may be forced to regulate blogging. It does anything but that, however, and in the process accuses Bradley Smith of distorting the truth, an act that, outside of Washington, is known as lying:

Mr. Glaze works for the Campaign Legal Center in Washington, where he is Director, Government Ethics Program and Public Affairs. His biography notes that, among other accomplishments, he "served on the legal team of Vice President Al Gore in Florida during the 2000 election recount controversy." To be fair, one of his colleagues worked for the Bush campaign during the Florida recount, so there's no denying the bipartisanship of the firm.

Here's how Firmseek describes the president and general counsel of the Campaign Legal Center, Trevor Potter:

Which Senator came in for the most criticism from bloggers during yesterday's swarm? John McCain. Who's rushing to his defense? His former general counsel. Mr. Potter's resume is indeed impressive, but it fails to list, at least on the company's staff website, his previous work for John McCain. That's an odd omission given the high profile nature of that job.

Here is the crucial text from the press release:

I fail to see how this refutes Bradley Smith's charges. 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." This is precisely Smith's point: given the interconnectivity of the Internet, which after all is its strongest point, how will posts from different blogs, or email lists which are passed all around the Net, be spliced so as to ensure that free speech isn't trampled?

It would take the wisdom of Solomon to split this baby, and I know I speak for many (even most) bloggers in saying that I trust neither the FEC, nor Mr. Potter's lobbying firm, nor the U.S. Senate, nor any other body to decide what I may or may not write on this blog, or read on a blog written by anyone else. I charged yesterday that this represents an extension of McCain-Feingold into the blogosphere, and Mark Glaze's press release only strengthens my conviction that I was correct. Why else turn to the very lawyers who've worked so closely to regulate political speech in the past in an effort to convince us that, after all, they only want to help us live clean lives.

For the full the text of the press release, click "read more" just below. It's also available here. I'll have more to say on the Campaign Finance Sourcebook later.

Update: Michelle Malkin has many additional links, and her trackback is always a great source to what other bloggers are saying; Deacon at Power Line continues to update his earlier post, which is itself very informative; and, via Glenn Reynolds, Roger Simon says "shame" on Apple for its lawsuit to force three bloggers to cough up sources.

Update II: Captain Ed concludes that Shays, Meehan v FEC, the relevant court decision, leaves far too much discretionary power to the FEC. Meanwhile, Red State has been delving into the aforementioned New Campaign Finance Sourcebook, and he, too, says that separating paid activity on the Net from unpaid activity that may be ruled in-kind aid to a political candidate will prove to be an impossible task.

Update III: As Michelle has reported, Daniel Glover of National Journal has written about yesterday's blogswarm. It amounts to a further attack on Bradley Smith, the FEC commissioner whose interview in CNET alerted bloggers to the dangers posed by the FEC via McCain-Feingold. Ellen Weintraub and Danny McDonald, Democratic appointees to the FEC, disagreed with Smith, with McDonald calling Smith's concerns an "overstatement." But Democratic Rep. Martin Meehan of Massachusetts said that Smith's worries were about "as believable as the 'Bill 602P' hoax about Congress imposing a 5-cent tax on every e-mail." Smith, for his part, replied: "I think there are clearly people who want to regulate bloggers."

Update IV: LaShawn Barber weighs in; and you can listen to a Bradley Smith interview here at Right Talk.

Update V: Steve Bainbridge reminds us not to forget this incident should McCain or Feingold run for higher office; Hindrocket updates Deacon's earlier post at PL with a long post that includes this: "[I]f anyone thinks that we bloggers can be prevented from saying what we think, that person is living in a different universe from mine."

Mar 4, 2005 -- Setting the Record Straight: There is No FEC Threat to the Internet
Statement of the Campaign Legal Center

FOR IMMEDIATE RELEASE
Press Contact: Mark Glaze, 202-271-0982

Washington, D.C. -- 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. Mr. Smith has advocated an extreme position that politicians, parties and outside groups can pay for Internet advertising with "soft money" - unlimited, unregulated checks from corporations, labor unions and wealthy individuals. A federal court rightly rejected that position, saying that the new ban on soft money in our elections obviously applies to Internet advertising, too.

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.

Mr. Smith's comments are obviously designed to instigate a furor in the blogosphere to pressure Congress to reverse the court decision requiring that paid political ads on the Internet should be treated like any other paid advertisements. Mr. Smith has a right to try to win converts to his anti-regulatory philosophy, but he has an obligation to present the issues fairly and forthrightly, and his comments to CNET fail both tests.

For more information on why the sky is not falling, see a chapter on the history of the FEC regulation and deregulation of the Internet by Trevor Potter, former FEC Chairman and president of the Campaign Legal Center, and Kirk Jowers, deputy general counsel for the Legal Center in the Brookings Institution's New Campaign Finance Sourcebook.

For the relevant court decision, please click here.

For information on the future FEC rulemaking, see the agency's website at www.fec.gov.