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Thursday, March 03, 2005

FEC Commissioner Says Court Decision Means Uncle Sam May Have to Regulate Political Speech on the Internet's Blogs

Federal Elections Commissioner Bradley Smith claims in a CNET interview that his panel is ony a few months away from officially beginning the process of regulating political speech on the Internet, including blogs. Click on the headline above this post to get the full interview with Smith.

The process Smith is describing is a direct result of the 2002 Bipartisan Campaign Reform Act (aka "McCain-Feingold") and the U.S. Supreme Court's McConnell v FEC decision upholding that law in 2003. Among much else, McCain-Feingold bans "issue ads" that name specific candidates for Congress for 30 days prior to a primary election and 60 days before a general election.

For the record, McCain is Sen. John McCain, R-AZ, and Feingold is Sen. Russ Feingold, D-WI. The measure bearing their imprimatur was approved by a House controlled by Republicans and a Senate controlled by Democrats. President Bush signed it into law despite his public expressions of doubts about its constitutionality. He perhaps thought he could get the political credit for signing the bill, confident that the nation's highest court would never countenance such a blatant interference with political speech. He figured wrong.

Despite the First Amendment's unequivocal statement that "Congress shall make no law" regarding freedom of speech, the Supreme Court upheld McCain-Feingold, and in the process threw the door open to Congress regulating political speech regardless of what format or media is involved.

The FEC is the bureaucracy tasked with regulating political campaign contributions and is the agency through which congressional regulation of political speech is most likely to be focused. That is why this first clear case of McCain-Feingold-inspired regulation of political speech is coming via a federal body that most Americans likely have never heard of and have little or no knowledge of its duties or activities.

Even so, as I predicted in 2003 would happen, new limits on political speech are now being hurried through the door opened by the Supreme Court. Last fall, U.S. District Court Judge Colleen Kohler-Kotelly said in a decision that the FEC would "undermine" McCain-Feingold if the Internet is exempted from the law's coverage.

That means the FEC must start drawing lines for what can and cannot be said of a candidate for Congress on the Internet and when it can or cannot be said. Such outright regulation of political speech would astonish James Madison, author of the First Amendment, and the rest of the Founders.

Thanks to Judge Kohlar-Kotelly's decision - which rigorously follows the logic of McConnell v FEC - the FEC is considering its next step. Here's how Smith describes the problem presented to the FEC by the Internet and bloggers:

"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 Nytimes.com and Opinionjournal.com get an exemption but not online sites, just because the newspapers have a print edition as well?"


Smith said he and the other two GOP members of the FEC wanted to appeal Kohlar-Kotelly's decision but they were unable to get the commission's three Democrat members to go along. Thus, it appears only a new act of Congress that specifically exempts the Internet will prevent the FEC from moving forward with new regulations.

Don't hold your breath waiting for Congress to pass a law saying it can't exercise this new power it's been awarded by the Supreme Court over political speech - i.e. over criticism of Members of Congress during the most important periods of election campaigns. A better name for McCain-Feingold would be "The Incumbent Protection Act."

No wonder Captain's Quarters declares:

"John McCain and Russ Feingold have effectively created an American bureaucracy dedicated to stamping out independent political speech, and the courts have abdicated all reason in declaring it constitutional."

I believe this is the most serious threat to political speech and the First Amendment since President John Adams and his Federalist Party ramrodded the Alien and Sedition Acts through Congress as a means of silencing anti-Federalists newspaper editors.

That's why I wrote this in 2003:

"Justice Clarence Thomas put it most succinctly: 'The chilling endpoint of the Court's reasoning is not difficult to see: outright regulation of the press.' The same political speech McCain-Feingold defines as 'bad' 60 days before an election must also be bad 90 days or 120 days before balloting. And speech that is bad on radio or TV must also be bad in a newspaper or on the Internet.
"'The press now operates at the whim of Congress,' Thomas said."

The Blogosphere needs to swarm this issue before it is too late. Check out Captain's Quarters comments on the Smith interview here. Some of the major Left blogs are alarmed as well, so here for MyDD, here for Atrios and here for DailyKos.

Then let's all start talking about what we can do. Starting with "Thank You" letters to McCain and Feingold.