FEC to Clamp Down on Blogging?

The coming crackdown on blogging (CNET News)

[FEC Commissioner] Bradley Smith says that the freewheeling days of political blogging and online punditry are over. In just a few months, he warns, bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign’s Web site. Even forwarding a political candidate’s press release to a mailing list, depending on the details, could be punished by fines.

Declan McCullagh interviews Smith and gets some rather chilling answers.

Q: What rules will apply to the Internet that did not before?
A: The commission has generally been hands-off on the Internet. We’ve said, “If you advertise on the Internet, that’s an expenditure of money–much like if you were advertising on television or the newspaper.”
Do we give bloggers the press exemption?

The real question is: Would a link to a candidate’s page be a problem? If someone sets up a home page and links to their favorite politician, is that a contribution? This is a big deal, if someone has already contributed the legal maximum, or if they’re at the disclosure threshold and additional expenditures have to be disclosed under federal law. Certainly a lot of bloggers are very much out front. Do we give bloggers the press exemption? If we don’t give bloggers the press exemption, we have the question of, do we extend this to online-only journals like CNET?

How can the government place a value on a blog that praises some politician?
How do we measure that? Design fees, that sort of thing? The FEC did an advisory opinion in the late 1990s (in the Leo Smith case) that I don’t think we’d hold to today, saying that if you owned a computer, you’d have to calculate what percentage of the computer cost and electricity went to political advocacy. It seems absurd, but that’s what the commission did. And that’s the direction Judge Kollar-Kotelly would have us move in. Line drawing is going to be an inherently very difficult task. And then we’ll be pushed to go further. Why can this person do it, but not that person?

How about a hyperlink? Is it worth a penny, or a dollar, to a campaign?
I don’t know. But I’ll tell you this. One thing the commission has argued over, debated, wrestled with, is how to value assistance to a campaign. Corporations aren’t allowed to donate to campaigns. Suppose a corporation devotes 20 minutes of a secretary’s time and $30 in postage to sending out letters for an executive. As a result, the campaign raises $35,000. Do we value the violation on the amount of corporate resources actually spent, maybe $40, or the $35,000 actually raised? The commission has usually taken the view that we value it by the amount raised. It’s still going to be difficult to value the link, but the value of the link will go up very quickly.

Such is the idiocy of McCain-Feingold–as upheld by the Supreme Court, no less–and its attempt to clamp down on political expression. Mike Krempasky notes that this is a bipartisan mess and hopes that bloggers on the Left and Right will be outraged by this possibility. Considering that the Left, so far, has been the most adept at using blogs to raise money for candidates, that just might happen.

FILED UNDER: Blogosphere, Law and the Courts, , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. McGehee says:


  2. IR says:

    Dr. Joyner…I can’t help chuckling at the irony of a “Russ Feingold for President” advertisement dutifully blinking to the right while I type…

    Of course, it was Feingold & McCain who filed suit to secure the ability to regulate internet free speech via a Clinton appointed Federal Judge. And, as expected, the matter comes down to a partisan issue of which Bradley Smith is unable to attribute to current events despite an even break of 3 and 3 on the FEC.

    Personally, I think that the first politician to come out strongly against this latest twist of McCain-Feingold is going to improve their demographics exponentially on both sides of the John Q. Public aisle…while the MSM attempts to prop up the Federal Court’s decision based on the threat to their own well being.

    Getting some popcorn…should be a good show.

  3. SoloD says:

    I think that Mr. Smith’s comments are wishful thinking by a stern opponent of McCain-Feingold. Try to imagine the administrative nightmare that his proposal (can we even call it that?) would mean. The FEC has trouble enough tracking momney, now they are going to track hyperlinks?

    Me thinks mischief is afoot!

  4. Tom Royce says:

    It will be a wonderful demonstration of the power of the blogsphere if they try to enforce this provision.
    Our own Orange Revolution…

    Maybe the Battle of the Bits and Bytes

  5. Artfldgr says:

    so what they are saying is that if i like a candidate and i buy a shirt i should claim it towards a political campaign? or if a paint a sign that says down with goofus, doest that get credited to gallant?

    this wont amount to much once a supreme court or such gets it, and a lower court at that. there is a grave distinction between a personal opinion op ed kind of thing, and being literally part of a campaign.

    when they resolve the kinds of things i brought up at the start of this, then they will follow through wit blogs.

    you guys think you can win but the power is not with the people any more. with such nigly piggly things as due process falling out of vogue it will end up being one of those automatic kind of things, like traffic tickets. you can write, you can protest, but you still have to pay the fine or suffer the consequences in the interim.

    this is a direct free speech issue.. and if they cant stop a woman from showing photos of her breasts to underage children because they are unintended recipients, i guess because of free speech i doubt they will be able to stop “i hate goofus” commentary…