The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Thursday, March 03, 2005

McCain-Feingold the blog-killer?

Atrios links an interview with GOP Federal Election Commission member Bradley Smith, which bears a scare-lede:
Bradley Smith says that the freewheeling days of political blogging and online punditry are over.

Say what?

It's datelined March 3 2005, but the substance comes in a 157 page decision (PDF) of DC District Judge Colleen Kollar-Kotelly of September 18 2004 covering a range of issues (summarised here) arising from regulations issued by the FEC under the McCain Feingold Act (aka the Bipartisan Campaign Reform Act).

The part relating to the internet starts on page 48a: the point is, if I understand it aright (caveat lector!), this: under 2 USC 441a(a)(7)(B)(i) [2],
expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate;

In §214 of the BCRA, the FEC were to issue new regulations on coordinated expenditures which [3]
shall not require agreement or formal collaboration to establish coordination.

It's these regulations that threaten Net Armageddon, supposedly.

The definition of coordinated communication comes in 11 CFR §109.21 [1]. In order to come within the definition, a communication must (inter alia) satisfy
at least one of the content standards in paragraph (c)
of this section

Four standards are there enumerated, including
(3) A public communication that expressly advocates the election or defeat of a clearly identified candidate for Federal office.

That would seem to cover terabytes of net material of various sorts.

However, under 11 CFR §100.26 [4], the FEC excluded all internet communication from the definition of public communication:
Public communication means a communication by means of any broadcast, cable or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing or telephone bank to the general public, or any other form of general public political advertising. The term public communication shall not include communications over the Internet.

So we're home and dry, then? Er, no. Because the statutory definition of public communication - codified in 2 USC 431(22) -
The term “public communication” means a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.
- makes no mention of the internet.

The standard to be applied where a Federal agency issues regulations defining matters within its purview is our old friend, the Chevron doctrine (which put in one or two appearances here in discussions on FCC rule-making).

The FEC justifies its position thus [5]:
The FEC decided not to include the Internet in its definition of “public communication” concluding that the exclusion “is consistent with the plain meaning of the statute, consistent with Congress’ decision not to include the Internet in the statutory definition of ‘public communication,’ and is the best policy decision with regard to implementation of BCRA.”

The judge is not impressed, and finds against the FEC under both steps of the Chevron doctrine [6].

Bradley Smith says that, whilst the FEC is appealing some parts of the judge's decision to the DC Circuit Court, the ruling on the internet definition is not one of them; and it is the intransigence of the Democrats on the Commission that has stymied them.

(There are, I infer, three of each party on the FEC, and a majority is needed for every decision.)

Why do the Dems refuse to appeal? Smith doesn't offer any suggestions, but does suggest some scary stuff happening if the situation isn't resolved.

I assume no regulations have been issued since the judge's ruling; in which case, presumably the statutory definition of public communications applies.

Smith offers dire predictions if nothing is done:
We're talking about any decision by an individual to put a link (to a political candidate) on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet.

Again, blogging could also get us into issues about online journals and non-online journals. Why should CNET get an exemption but not an informal blog? Why should Salon or Slate get an exemption? Should and get an exemption but not online sites, just because the newspapers have a print edition as well?

However, as I read it, only coordinated communications can count as campaign contributions. And, whilst the degree of coordination required by 11 CFR §109.21(a)(3) is widely drawn, a member of the Pajamahadeen scribing vitriol in his blog off his own bat against John Kerry or George Bush would not qualify.

There is a general regulation (11 CFR 100.52(d)) that brings in the value of in-kind contributions. But clearly the value - dubious or otherwise - of communications made by third parties does not come within its scope without the specific rules covering coordinated contributions - which are deemed to be in-kind contributions (by 11 CFR 109.21(b))?

(Whenever one reads in a legislative provision that X is deemed to be Y, that is powerful, if not conclusive, evidence that, absent that provision, X is not Y.)

Conclusion of my first cut at this: the threat to the blogosphere is greatly exaggerated.

But I still can't work out why the Dem FEC commissioners don't want to appeal to restore the internet exemption. After all, they've just put in place at the top of the DNC the King of the Internet, Howard Dean...

  1. No durable links for CFR: use this page.

  2. Opinion p33a.

  3. Opinion p34a.

  4. Opinion p49a.

  5. Opinion p51a.

  6. Which I'm happy to skate over for the moment!

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