Blogs Getting Exempted
Rick Hasen, a law professor in LA who specializes in election law issues, has a good and interesting piece up on the
FEC and blogs.
Even without a crushing number of e-mails to the FEC protesting any proposed limits on Internet-based election activity, the FEC is likely to be reluctant to impose onerous requirements that crack down on grassroots political activity like personal blogging. Commissioner Smith doesn't want it, and according to news reports many other commissioners don't want such regulation either. And Congress would likely overrule such regulations if the FEC enacted them and they survived court challenge. So I expect that the FEC will propose only modest regulation, mostly to insure that, as under current law, campaigns and committees fully disclose amounts spent on political advertising to appear on websites.
Blogging = Grassroots Activity?
But it is worth considering what the FEC should do, consistent with the goals of campaign finance law and the First Amendment. In thinking about any campaign finance regulation, the Supreme Court has said that we need to balance government interests that can justify regulation against the costs of regulating core political activity. Thus, regulations that can serve to prevent corruption or its appearance can justify some limits on campaign financing?and certainly justify disclosure?but they would not justify shutting down political speech for its own sake or interfering with grassroots political activity. (Indeed, in 1979, Congress loosened its 1974 campaign finance law out of a belief that it was discouraging grassroots activities such as the printing of campaign buttons, bumper stickers, and lawn signs.)
...
As Commissioner Smith?s interview shows, the real threat to grassroots Internet-based political activity comes from the issue of coordination. Generally speaking, when someone acts in coordination with a candidate or committee and provides a benefit to that entity, the financial value of the benefit sometimes counts as a contribution to the committee. So if I own a printing press and I print up $500 worth of bumper stickers at the request of a candidate?s committee, that?s like a $500 contribution?and the law limits the amount that individuals can contribute to candidates, even through in-kind activities. Otherwise a big donor could get around the $2,000 limit on direct contributions to candidates (per election) simply by making large in-kind gifts.
Commissioner Smith suggests that a blogger?s placement of a hyperlink to a candidate?s home page might be considered coordination with that candidate, and that the action could therefore trigger coordination rules and valuation rules that could get the blogger in legal trouble for making an excessive in-kind contribution.
The FEC likely won?t go down this route, nor should it. It should create a safe harbor for activities like linking to a candidate web page, much like current law creates an exception to the in-kind contribution rule for donating the value of one?s time for a campaign as a volunteer. There?s not much corruptive potential in creating such a hyperlink, and the government has no good reason to discourage what looks like beneficial, grassroots political activity.
The average, uncompensated blogger therefore appears to have very little to worry about from FEC regulation, fearing neither disclosure requirements nor contribution limits for political activity. The same appears to go for private individuals who send e-mails to friends, or even to a listserv.
[Emphasis added.]
It's worth reading the whole thing. Here's the thing about the piece, though, that strikes me. Professor Hasen isn't actually disagreeing with FEC Commissioner Bradley Smith that the BCRA can be extended to blogging. What he is arguing, is that the FEC should act to exempt it. In other words, blogging should be given special permission to engage in political speech and activity.
Does anyone else find that wrong? How comfortable are you to know that an unelected federal agency has the power to decide whether blogging that goes to political advocacy? Your own personal political views and how you express them online, are now within the purview of the FEC.
But don't worry, they'll give you permission.
I once actually supported campaign finance. Then I started reading the case law and the federal laws. The more I learned, the more I came to dislike them and find them counter productive.
