Will FEC Draft Regulations Lead to Greater Regulatory Control Over Blogging Community?

This interview with FEC Commissioner Brad Smith again reminds us of the potential ongoing threat to our freedom of speech as bloggers via FEC draft regulations on Internet communications. The editor's note at the beginning of the interview defines the issues:

The Federal Election Commission (FEC) is currently under court order to consider extending regulation and restriction of political speech outlined by the Bipartisan Campaign Reform Act of 2002 (BCRA, also known as McCain-Feingold). The court order was the result of a lawsuit filed by advocates of regulated speech, including the architects of BCRA, Sens. John McCain and Russ Feingold. Users of the Internet, such as online publications and blogs, so far have enjoyed a broad exemption from the speech restrictions favored by reformers. But the court-ordered rule-making by the FEC could change that.

Brad Smith then makes these comments in the interview:

...one of the problems I think with campaign finance law and regulation is that it adds complexity and makes it more difficult for citizens to participate in politics -- it puts legal hurdles in their way.

So it's not necessary that the FEC would be setting this rule-making determined to shut down blogs before bloggers have to get concerned or before people should be concerned about their rights to participate in politics; or before people should be concerned about what effect the regulation might have on what has been a very democratizing medium.

And what this rule making does is it sets the stage. We will have changed the presumption from the idea that the Internet is not regulated to one that it is regulated. And once we have made the presumption that it's going to be regulated, it's only a matter of time before people will find things that they think therefore ought to be regulated.

Politics is a dirty business...People who lose in political battles don't like to admit that they lost because maybe their ideas weren't good enough or they weren't persuasive enough, or people just don't agree with them. They would like to say, well, those guys must have an unfair advantage that must be regulated. That's the way that the political system works here and we have now set up the presumption that when things come up that people are unhappy about, government should regulate them.

I go back to a First Amendment perspective, that the First Amendment was there for us to keep government out of this. Now we are past the stage in which we can say that the courts will strike down all campaign finance regulation. But we really need to ask ourselves: is there not one area of American political life that can be unregulated? Is it absolutely required to regulate every area? And if there is one area that could be unregulated, one would think it might be the Internet, given that it's one area where the little guy -- the average citizen -- really can get in there and compete with the big, well-financed interests...

We have been forced into a position that there will be some regulation; and that alone will mark a substantial change in the whole disposition towards the Internet. I think that the commission can and should adopt a broad exemption for personal activity on the Internet and also for paid ads to be on the Internet.

We need to make clear that bloggers are press, these are periodicals and people update them regularly; that the first amendment does not only apply to people who are members of the National Press Club, that it is not limited to people who have a little press card in their hat band like some 1930s movie.

The press is everybody; every citizen has a right to publish his views and to promote his views and if the Internet is blurring a distinction between traditional media and just average citizens, I am not sure that's a bad thing. That's a good thing, a democratizing thing, it is exactly the type of thing that the reformers claimed for years to want. They ought to rejoice in it. That they don't is interesting in itself...

...oddly, with the type of regulation in which the more money you have the more free you will be to participate. A wealthy guy like George Soros, who can spend his millions, or Rupert Murdoch who can own a network, will have heightened influence. Your average small business doesn't have that possibility. They can, however, go onto the Internet. But now we are going to say, "No, you can't take it on the Internet either." Systematically we are working again exactly backwards.

Here is some further background on this topic:

Thanks to Mike Krempasky at Red State, here are the original set of FEC proposals from March 2005 which were more severe than the subsequent draft regulations issued in April for public comment. As one blogger wrote me at the time:

Proof of just how accurate Brad was in his March interview came when Mike Krempasky at Red State published an earlier draft of the proposed FEC rules for the Net. They were, in fact, far more severe than the actual draft proposal that came out later that month, and Brad of course knew that, absent his own efforts to publicize the potential harm that lay just over the horizon, such rules might take effect.

This earlier Anchor Rising posting presents some thoughts on Correcting the Bizarre Incentives Created by Campaign Finance Reform Laws.

Another Anchor Rising posting entitled The Looming Threat of Government Regulation to Blogsphere, Brought to Us by Campaign Finance Reform links to this Democracy Project posting about another Brad Smith interview done at the time when the March draft proposals were the latest version.

This informative posting by Democracy Project entitled Why Are They Smearing Brad Smith? provides a lengthy and valuable rundown of Bradley Smith's relationship with Senator John McCain and the left. The posting gives readers a context for understanding the strong words often said about Smith by many politicians and their allies.

Here is the link to Brad Smith's FEC website.

[Note on June 15, 2005: Brad Smith has resigned from the FEC, effective August 21, 2005. Here is a Democracy Project posting on his resignation. Smith said the following in the resignation press release:

Noting that the Commission’s regulations now are nearly 400 pages long, Smith added, however, that he remained, "concerned about the effects our campaign finance laws are having on grassroots political participation. Political activity is more heavily regulated than at any time in our nation’s history."]

On April 4, 2005, the Federal Election Commission issued a Notice of Proposed Rulemaking on Internet Communications. The comment period closed June 3, 2005.

Here are the links on the FEC's website to comments received in response to that notice.

There will be hearings on the draft regulations in Washington, D. C. on June 28-29.

For regular updates on the topic of FEC possible regulations on bloggers, check out RedState.org's FEC section.

Here is some parting thoughts from Mike Krempasky:

...But perhaps it's worthwhile to speak very clearly: I tend to think that the electorate - the citizenry is best served by competitive elections - not the inevitable incumbent protection that breeds an out-of-touch political establishment. And make no mistake - that's what these laws do. It's like allowing Microsoft to write our anti-trust laws. I want activists to be able to throw the bums out - on the left or right - or at least make a credible threat to do so.

I think that ideas matter. Money in the coffers of challengers is worth many times that of the incumbent's - and just about any idea, cause, or candidate with a shread of legitimacy can find enough money in this country to be competitive...

I believe ideas spoken by small people matter. I believe that the so-called damage that big money can do in politics is more than balanced by the force of lots of tiny voices. And the internet is the best place for those tiny voices to band together and form (to borrow Dr. Schumpeter's phrase) a "gale of creative destruction."

Does anyone really think that I'm worried in any significant way that someone who can give 100K to a candidate is going to be overburdened by regulations? That this is some shadow campaign to help Richard Scaife and George Soros start buying elections at wholesale prices? Hooey. They hire lawyers, they distribute their gifts, they band together in giving clubs with their wealthy friends - they'll find a way.

As far as the work Markos and I have done fighting potential regulations of political activity on the internet - take whatever shot you like at him, but it's pretty clear that putting aside our individual principles - we both believe that when you put politics in the hands of small speakers - that our respective sides will be advantaged.

And I say - outstanding. Let's let everybody into the show, let's encourage everyone to participate. And yes, I happen to think that in the long term, the more access that Americans have to the views I happen to hold - the more successful conservatives and Republicans will be on election day. But Markos surely believes the same thing about progressives.

What's the problem again? Let's have at it.

Ideas do have consequences. And strong people who love liberty are not afraid of competition, of having their ideas publicly vetted by the best and brightest minds put forth by their opponents -- and letting the best ideas win in the political marketplace. Or, to go back to what Brad Smith said in the interview:

...But we really need to ask ourselves: is there not one area of American political life that can be unregulated? Is it absolutely required to regulate every area? And if there is one area that could be unregulated, one would think it might be the Internet, given that it's one area where the little guy -- the average citizen -- really can get in there and compete with the big, well-financed interests...