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Monday, March 07, 2005

Hewitt, Ruffini Say Not to Worry About FEC Furor, 1st Amendment to Protect Us

Can this be true - Hugh Hewitt takes a position with which I must vigorously disagree? And not just Bloggers Maximum Leader Hewitt but so is campaign blogging maestro Patrick Ruffini! Hard as it may be to accept, the truth is they are arguing that there is nothing to worry about in the furor over the prospect of the FEC regulating political speech on the Internet.

Here's Hewitt's argument:

"I have been teaching the First Amendment for a decade, and it isn't going to happen because it would be patently and obviously unconstitutional to classify the content of a political blog --which is essentially a cyber-newspaper-- as within the purview of the FEC ...
"I think the conversation was useful, but not nearly as important as some think. Commissioner Smith's a very smart guy, and he got what he probably set out to get: An early warning to the FEC staff that it is silly beyond words to attempt such a thing. And blatantly unconstitutional."

And here's Ruffini's, prefacing his lengthy quotation of Hewitt's posting:

"What we saw this week was a very shrewd tactical maneuver by Smith that effectively kills the possibility of FEC regulation of the Internet once and for all."

Well, those two are smart guys, both of whom are undoubtedly a lot smarter than I am. Plus, you won't find a law degree on my wall. So what they say on this or any other issue involving the law and/or the Internet merits close scrutiny.

But I still think they are unjustifiably optimistic and the Scalia and Thomas dissents in McConnell v FEC make clear why we are now at the outset of a regulatory process made inevitable by the Supreme Court's grant of power to Congress to regulate campaign speech that creates an appearance of corruption.

Yes, paid advertising is the focus now, but, as the Kollar-Kotelly District Court decision makes equally clear, the FEC must regulate political speech on the Internet in order to properly enforce McCain-Feingold if that speech appears to add value to and be "coordinated" with a candidate's campaign. That is why Kollar-Kotelly said "the commission's exclusion of Internet communications from the coordinated communications regulation severely undermines" the purposes behind Congress enacting the law in the first place.

Here's the nut of the problem: Given the Supreme Court's upholding of Congress regulating some political speech and the FEC's broad authority to define the scope of its regulatory actions in this area, it will sooner or later regulate political speech on the Internet, unless Congress passes additional legislation expressly exempting such speech. In the meantime, we can hope the present FEC will back off this time, as it did in 1999 when a similar issue was involved. But there is no guarantee a future FEC will do so.

Indeed, as Hewitt and Ruffini well know, government naturally and always seeks to expand its powers, and almost never voluntarily accepts a lessening. And there will always be a losing candidate, an aggressive pro-campaign regulation non-profit or an incumbent senator eager to generate new headlines who will push the FEC to expande its regulation of political speech as widely as possible.

Kill it now, or watch it grow. Like Reagan and others have often said, the closest thing to eternal life on this planet is a federal program.