The FEC and the Future of Net-Based Political Communication

Henry Farrell of Crooked Timber recently sparked an impassioned debate (see comments) over the applicability of campaign finance laws to the Internet. This exceedingly civil and dispassionate conversation has been going on for over a year now, with people like Farrell, Lindsay Beyerstein, and Institute for Politics, Democracy, and the Internet director Carol Darr concerned about unscrupulous operatives using the Internet to circumvent the Federal Election Commission, and an unholy alliance of right- and left-wing partisans rallying together to defend their beloved medium from any and all governmental fetters. The fiercest barbs have been exchanged over the political bloggers’ claim to what is known as the “media exemption”, a loophole that allows the media to go about its business reporting the news without running afoul of the FEC.

Federal election law prohibits corporations, banks, and labor organizations from "mak[ing] a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office . . ." (2 USC 441b). If the media exemption had not been extended to bloggers, some of their online political activity might have been found to constitute in-kind campaign contributions and thus fall under the jurisdiction of McCain-Feingold's hard-money caps. Under this scenario, the contributors' (bloggers') names would have become a matter of public record in accordance with the law's disclosure requirements.

The media exemption, as this WaPo article from last year on the subject notes, aims to protect freedom of the press by shielding news organizations from liability to campaign finance law. And the idea that the press should be free to publish as it sees fit is premised upon its freedom from the improper financial influence of special interests. If a blogger accepts money to flack for a particular political candidate, thus distancing herself from all pretenses to journalistic disinterest, does she not thereby abdicate her claim to the exemption?

In response to this question, many prominent bloggers have noted that political speech on the Internet differs fundamentally from its analogues in other media such as television and print. They argue that the relatively low entry barriers to Internet advocacy significantly attenuate the effects of the pecuniary disparities that allow well-heeled donors to edge small fries out of the big-media conversation. In other words, it enables normal citizens like Markos Moulitsas Zuniga to reach millions of people without millions of dollars in capital. Bloggers adduce the online playing field's vast width as an argument against regulation, which might harm the diversity of what they consider a uniquely democratic channel of political communication. They elevate the value of unregulated speech above the promise of protection from potential abuses such as so-called 'astroturf blogs,' which purport to represent authentic grassroots sentiment while in fact proffering campaign-coordinated political PR. Furthermore, they point out that even the least invasive application of campaign-finance red tape to the Net will most likely at a bare minimum involve the disclosure of the involved party’s identity, which could severely cut down on anonymous commentary. And as we’ve seen recently, that can cause problems of an entirely different sort.

Carol Darr and her opponents find themselves at irreconcilable loggerheads because the latter categorically reject any governmental regulation of speech, even rules as minimally incursive as those the academic supports. The question of whether or not political bloggers deserve the media exemption has been rendered academic, as the FEC decided late last year to grant it to all online news sites not directly owned by a political party or campaign. I personally agree with the commission’s decision, having found Darr’s faith in “preemptive regulation” rather bizarre and altogether unconvincing. If rules are to be laid down, they need to be specifically designed to ameliorate the manifestly deleterious effects of well-documented patterns of duplicity—and if that type of analysis exists, I haven’t yet seen it.

The question of whether government intervention is ever justified in the arena of online speech is far from settled. As the Internet grows in political influence, more and more attention will be focused on the most effective ways to insure transparency in the virtual marketplace of ideas. All those who grant the basic necessity of campaign finance reform must be prepared to face the possibility that regulation-worthy abuses may materialize on the Internet at some point in the future. But we shouldn’t allow speculation about what might happen tomorrow to curtail our freedoms today.

Despite All Their Rage . . .

The WaPo's David Finkel has a front-page (on the Web, anyway) profile of liberal blogger Maryscott O'Connor in today's edition that also attempts to take the pulse of the American online left. Finkel frames his piece around the liberal blogosphere's strident tone and hyperbolic anti-administration rhetoric, which is unsurprising given that the paper itself has been a frequent target of its members' rancor. O'Connor comes off in the text as concerned if a little frustrated, but the unfortunate photo that runs alongside the piece (which includes a true-to-stereotype glass of red wine sitting next to the computer monitor) portrays her as out-of-touch and irrational. Then again, I doubt anyone who describes herself as "insane with rage and grief" cares much about the appearance of uncivility.

But does all the vehemence and vitriol to be found all over Daily Kos, Eschaton, and My Left Wing serve a higher purpose, or does it amount to little more than national group therapy for a disenfranchised political minority? Finkel raises the question, but the only potential answer comes from O'Connor herself, who has the following to say in a piece about the need for action in Darfur:

"You don't think you can do anything? ANYTHING? You're right. YOU can't do anything. But WE can. WE CAN," she writes.

"MAKE SOME [expletive] NOISE ABOUT DARFUR and you WILL be heard, and it WILL be addressed. Keep silent . . . and none of your future 'How could we let it happen' elegies will mean a good goddamn."

So she says, but I'm not convinced. Bloggers and their commenters love to talk about the medium's potential for change in unjustifiably buoyant terms that usually fail to distinguish its strengths from its shortcomings. Blogs have proven very effective at reclaiming some of the mass media's agenda-setting power, both by acting as filters that offer customized news feeds to partisan constituencies and by forcing major news organizations to focus attention on stories they initially missed or marginalized (i.e. Americablog's exposé of James Guckert). However, political blog readers still comprise a small, unrepresentative minority of the electorate, and thus wield little sway in national policymaking. The problem is even more pronounced on the left, whose inferno of impotent rage is continuously stoked by its lack of representation in Washington.

The blogosphere, or some other permutation of the political Web, may eventually prove itself a practical conduit for real political change; it is young yet. But here in America today, its main function is to allow disaffected parties from all across the political spectrum the opportunity to vent their frustration in congenial virtual milieux. Chinese citizens use the Internet (or their heavily censored version of it) to express grievances as well, but the network's decentralized nature exerts a far more significant political impact there by directly challenging the government's aggressive desire to stamp out dissent. Without such a transparently repressive regime to amass widespread ire against, American liberals must discover for themselves the best ways to leverage the digital tools at their disposal to effect change. All that profane prattle may feel cathartic, but it's not nearly enough.

EDIT: O'Connor's reaction to the article and description of Finkel's info-gathering process are available here.

VNRs Rear Their Ugly Heads (Again)

David Barstow reports from the New York Times on the bald propaganda that continues to infect our airwaves:

Many television news stations, including some from the nation's largest markets, are continuing to broadcast reports as news without disclosing that the segments were produced by corporations pitching new products, according to a report to be released today by a group that monitors the news media.

Television news directors have said that the segments, known as video news releases, are almost never broadcast, but the group assembled television videotape from 69 stations that it said had broadcast fake news segments in the past 10 months.

The new report was prepared by the Center for Media and Democracy, which is based in Wisconsin and which describes itself as dedicated to "exposing public relations spin and propaganda."

The report said none of the stations had disclosed that the segments were produced by publicists representing companies like General Motors, Capital One and Pfizer.

The center also said that many of the 69 stations took steps to blend the fake segments into their news broadcasts. Some had their news reporters or anchors read scripts supplied by corporations, the report said, and many had altered screen graphics to include the station's logo.

The report said that a few stations had introduced publicists as if they were their on-air reporters. Only a handful of stations added any independently gathered information or videotape, it said.

The Federal Communications Commission has levied over $11.5 million in indecency fines under the leaderships of the current and former chairmen (Kevin Martin and Michael Powell, respectively). But my best efforts have failed to turn up a single case of a TV station having been punished for broadcasting VNRs unattributed, despite the FCC's lofty public proclamations against the rank impropriety of "fake TV news" and despite the fact that VNRs have been running on both broadcast and cable since the early 90s. Perhaps we should pity the poor agency: after all, when you spend all day fielding correspondence from the one gang of whiners that files 99.8% of FCC complaints, actually fulfilling your mandate to protect the public from truly insidious influence must lose a bit of its luster. Arghhh . . .