Online Freedom of Speech Act and Drawing Lines
Garance Franke-Ruta does an excellent job of answering Markos Moulitsas Zuniga‘s frequent query as to why “Daily Kos should be treated differently the Slate.com or TNR.com.” Franke-Ruta notes that, “The simplest explanation is that Slate and TNR do not do fundraising for the Democratic Party and/or specific Democratic candidates. Because DailyKos as an institution does fundraising and lobbying/activism around specific bills and races, it sometimes seems closer in nature to a political advocacy group than to a media outlet.”
She observes that traditional journalistic enterprises often endorse candidates, take positions on issues, and even occasionally lobby Congress on industry issues but they do not do candidate fundraising or non-media issue lobbying. Further hybrid media-political organizations tend to create separate legal entities which operate under the laws applying to each. Kos’ closest counterpart, RedState, is a registered 527 group and accepts no advertiseing.
All well and good but, as Duncan “Atrios” Black argues, the lines are not exactly bright.
Ultimately, it seems to me, the question is not how to clarify the lines between bloggers, Big Media, PACs, 527s, lobbyists, and the myriad other ways that people with viewpoints interface with their government. As we have learned time and again since 1974, the desire to influence public policy is strong enough to attract people smart enough to figure out loopholes. The real issue, then, is why keep trying? So what if DailyKos or RedState–or the NRA, NAACP, NOW, NARAL, AFLCIO, or whoever–want to raise money for candidates or advocate issues before Congress? Given that they are all aggregations of citizens, doing so is their inalienable right, endowed, depending on one’s belief system, by either the Creator or James Madison.
There are really only two legitimate regulatory issues here: Corruption and taxation.
While people and organizations (which are, ultimately, just people writ large) should have an absolute right to contribute money to causes, there is an obvious public policy interest in preventing quid pro quo transactions. But disclosure laws and tighter ethics rules would solve most of that problem, which is much more theoretical than real.
Similarly, it is reasonable to expect groups getting the benefits of tax exempt status to refrain from certain kinds of political activities as a price for that status. But, again, very narrowly targetted laws could solve that problem.