FEC May Regulate Bloggers

The full article, as published on Cato’s website, is as follows:

Bloggers Beware

John Samples is director of the Center forRepresentative Governmentat the Cato Institute and co-editor ofTheRepublican Revolution 10 Years Later: Smaller Government or Business asUsual?

Bloggers were one of the big political successesof the 2004 election. This motley group of opinionated writers usedtheir cyber soapboxes to attack and defend the presidential campaignsand the two major parties. Their websites offered a fresh look atpolitics and implicitly undermined the Establishment media that so manyAmericans have come to distrust. In other words, bloggers used freedomof speech to improve American democracy.

Naturally the federal government is about to come down hard on bloggers.

Here’s why. In 2002, Congress passed the McCain-Feingold campaignfinance law which restricted political advertising by corporations andlabor unions on television and radio. The Federal ElectionCommission?the agency charged with implementingMcCain-Feingold?initially decided that Congress had not intended torestrict political speech on the Internet.

Last fall, a federal judge said exempting the Internet from thelaw’s restrictions on political speech would undermine McCain-Feingold.Now the FEC is back at it trying to figure out how to restrictpolitical speech on the Internet.

If you care about freedom of speech, there are good reasons forconcern. The FEC may conclude that allowing political advertising bycampaigns and parties on websites will undermine the restrictions onads in McCain-Feingold. Ads on the Internet would be a loophole toMcCain-Feingold that the FEC should close.

But bloggers don’t necessarily work for a campaign or a political party and thus should not fall under McCain-Feingold, right?

Don’t be too sure. Bloggers often endorse candidates or parties inan election. Those endorsements are of value to the candidates and mayend up being treated as a campaign contribution, subject to limits anddisclosure. Bloggers may also contribute to a campaign by linking to acandidate’s website or republishing a candidate’s press release.

Of course, The New York Times can endorse candidates foroffice and promote their causes, and you might think that bloggerswould enjoy the same First Amendment protections. But you would bewrong. The FEC has not given news sites or bloggers what is tellinglycalled "the press exemption" from campaign finance laws. What bloggerssay and do may well fall under federal campaign finance restrictions.

History should give pause to those concerned about liberty on theInternet. New technology that threatens the political status quoquickly attracts Congressional regulation and restrictions.

Take the history of television in American politics. In 1968, threecandidates?Eugene McCarthy, George Wallace, and RichardNixon?challenged the entrenched status quo by spending large sums ofmoney on television advertising. McCarthy’s spending drove theincumbent president Lyndon Johnson out of office. Wallace’s TV strategybrought him 14 percent of the vote and may have denied Democrats thepresidency. Richard Nixon’s lavish spending on television helped himnarrowly take the presidency from Hubert Humphrey.

In 1968, uncontrolled political spending on a new technology threatened the political status quo.

Congress acted swiftly to meet the threat. In the spring of 1969,members introduced a bill to limit campaign spending on televisionadvertising. The bill became law in 1971 and went into effect thefollowing year. Congress had, in the words of one member, "tamed thetelevision monster." Yet the "monster" in question was a threat only tothose who held power.

Last year a relatively new technology shook up the political world.The upstart presidential candidate Howard Dean used the Internet toraise unprecedented sums that fueled his outsider campaign for theDemocratic nomination. Bloggers brought down Dan Rather of CBS News, atitan of the old media, and offered uncontrolled sources of informationand insight to voters.

In 2005, as in 1969, those who use this technology have to expect the status quo they are upending will fight back.

The upcoming effort to regulate and restrict the Internet thus seemsas inevitable as it is unfortunate. Indeed, the effort to clamp down onthe Internet will succeed absent resistance.

Someone said that a man with a hammer sees nails everywhere.Congress holds the hammer of McCain-Feingold, and its members see theInternet as a nail.

      

This article appeared on Reason.com on March 9, 2005