The FEC is not going to regulate blogs.

The whole of the Internet has its panties in a bunch today over the news that the Federal Election Commission is going to regulate blogs, making it illegal for people to write about political matters.

Take a deep breath. Step back. Think about this. It’s not going to happen.

By way of background, the whole kerfuffle comes from a single article written by Declan McCullagh for the unfortunately-named In it, Smith asserts that it’s possible a recent ruling by a U.S. District judge could result in new FEC regulations that would make it illegal for an individual to link to a candidate’s website, and that it’s the fault of Democrats that this is so.

Let’s start by looking at Bradley Smith. The NYU School of Law’s Brennan Center for Justice has an insightful write-up about Smith, which says, in part:

President Clinton, at the urging of Senator Lott and Senator McConnell, has nominated Bradley A. Smith to fill one of the vacancies on the Federal Election Commission. Brad Smith, a law professor at Capital University Law School, has devoted his career to denouncing the FEC and the laws it is entrusted to enforce in precisely those strident terms. He believes that virtually the entire body of the nation’s campaign finance law is fundamentally flawed and unworkable “indeed, unconstitutional.” He has forcefully advocated deregulation of the system.

Smith is opposed to the FEC. He’s opposed to any limitations on fundraising. He believes that there’s no evidence that money has any tainting effects on politics.

Suffice it to say, Bradley Smith has every reason to rally the troops in strong opposition to the recently-enacted Bipartisan Campaign Reform Act (aka McCain-Feingold) and campaign finance laws on the whole. And it seems that he’s found a crew of suckers: bloggers.

Now, let’s look at McCain-Feingold itself. After it was made law, there was an immediate rush of lawsuits, 11 in all, which were all compiled into a single case by the Supreme Court, McConnell v. FEC. On December 10, 2003, the Supreme Court issued a 300-page decision, in which some of the five portions of McCain-Feingold in question were struck down, while others were upheld.

The legal issue at question in the case was, pure and simple, free expression. It was with this in mind that, by a 5-4 ruling, the SCOTUS upheld the BCRA’s limitations on soft money contributions, upheld the limitations on attack advertising shortly before elections, struck down the limitations on self-funded campaigns, struck down the ban on contributions from minors, and upheld regulations pertaining to electioneering communications. Those two sections that were struck down were struck down because they stepped over the line of restricting free expression — the three that remained were judged not to restrict free expression, as the public seems to agree with.

This 5-4 split was not a matter of five justices favoring limited free speech restrictions and four favoring strong free speech restrictions. On the contrary, the four dissenting judges (Rehnquist, Kennedy, Thomas, and Scalia) felt that a great deal of McCain-Feingold simply restrained free expression too greatly. Citing cases as varied (and seminal) as Tinker v. Des Moines and Lujan v. Defenders of Wildlife, the minority deftly sliced down the arguments in favor of restrictions on free expression by using whatever precedent they could grasp at. They didn’t mince words, either — Thomas described the majority’s ruling as “the most significant abridgement of the freedoms of speech and association since the Civil War” and an “assault on the free exchange of ideas.” Scalia wrote: “The first instinct of power is the retention of power, and under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech.”

The majority, though, was not insensitive to free expression, citing Buckley v. Valeo (the only other major campaign finance case) dozens of times while exploring the line between undue political influence and free expression.

Justices Stevens and O’Connor summed up the whole of the court’s ruling in writing:

Many years ago we observed that “[t]o say that Congress is without power to pass appropriate legislation to safeguard…an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection.” […] We abide by that conviction in considering Congress’ most recent effort to confine the ill effects of aggregated wealth on our political system. We are under no illusion that BCRA will be the last congressional statement on the matter. Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day.

In short, McConnell pitted those concerned about free expression against those extremely concerned about free expression, yielding a decision that was respectful of free expression.

Consider Bradley Smith. Consider the McCain-Feingold and its evisceration in McConnell v. FEC. Now, do you really think that the FEC is about to make it illegal to link to a campaign website from your blog? Or do you think that Bradley Smith just wants you to think that the FEC is going to do that?

Published by Waldo Jaquith

Waldo Jaquith (JAKE-with) is an open government technologist who lives near Char­lottes­­ville, VA, USA. more »

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