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.
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.
posted by deen at 10:03 AM
<< Home