The Federal Election Commission is beginning the process of extending its controversial 2002 campaign finance law to the Internet, potentially threatening political blogging and online punditry, a member of the panel warns.
The Internet was exempted from the McCain-Feingold regulations in a 4-2 vote by the FEC in 2002, but U.S. District Judge Colleen Kollar-Kotelly overturned the decision last fall, reports CNET News.com.
The judge wrote in her opinion that the commission’s “exclusion of Internet communications from the coordinated communications regulation severely undermines” the campaign finance law’s purposes.
Bradley Smith, one of six commissioners, told CNET that in just a few months, bloggers and news organizations could risk the wrath of the federal government for improperly linking to a campaign’s website.
“This is an incredible thicket,” Smith said. “If someone else doesn’t take action, for instance in Congress, we’re running a real possibility of serious Internet regulation. It’s going to be bizarre.”
Even forwarding a political candidate’s press release to a mailing list, depending on the details, could be punished by fines, Smith said.
The panel’s three Republican members, including Smith, voted to appeal the Internet-related part of the judge’s decision, but they needed four votes and were unable to convince one of the Democrat members to join them.
The campaign finance law has a press exemption, but the panel is considering whether bloggers or online journals fit that description.
Smith said questions will arise, such as whether a Web page’s link to a candidate’s site constitutes a contribution.
How would that be calculated? The FEC already has received an advisory opinion suggesting the value placed on a blog that praises a politician or links to a campaign website might be based on what percentage of the computer cost and electricity went to political advocacy.
“It seems absurd, but that’s what the commission did,” Smith told CNET. “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?”
Smith said Kollar-Kotelly’s opinion is not limited to ads: “She says that any coordinated activity over the Internet would need to be regulated, as a minimum. The problem with coordinated activity over the Internet is that it will strike, as a minimum, Internet reporting services.”
Some have argued that the Internet doesn’t fit under McCain-Feingold’s press exemption.
The news exemption might not cover bloggers and online media, Smith said, because “the statute refers to periodicals or broadcast, and it’s not clear the Internet is either of those.”
“It becomes a really complex issue that would strike deep into the heart of the Internet and the bloggers who are writing out there today,” Smith said.
CNET News noted federal law limits the press exemption to a “broadcasting station, newspaper, magazine or other periodical publication.”
But blogging, said Smith, “could also get us into issues about online journals and non-online journals. Why should CNET get an exemption but not an informal blog? Why should Salon or Slate get an exemption? Should Nytimes.com and Opinionjournal.com get an exemption but not online sites, just because the newspapers have a print edition as well?”
Also, he contined, “there’s no standard for being a blogger, anyone can claim to be one, and we’re back to the deregulated Internet that the judge objected to. Also I think some of my colleagues on the commission would be uncomfortable with that kind of blanket exemption.”
He believes grass-roots Internet activity is in danger unless someone in Congress is willing to stand up and say, “Keep your hands off of this, and we’ll change the statute to make it clear.”
Smith said he would “like someone to say that unpaid activity over the Internet is not an expenditure or contribution, or at least activity done by regular Internet journals, to cover sites like CNET, Slate and Salon.”
Otherwise, he said, “it’s very likely that the Internet is going to be regulated, and the FEC and Congress will be inundated with e-mails saying, ‘How dare you do this!’”
Typical activities such as forwarding an e-mail from a campaign to a list of hundreds or thousands of people would be affected.
“Senators McCain and Feingold have argued that we have to regulate the Internet, that we have to regulate e-mail,” Smith said. “They sued us in court over this and they won.”
News of the impending FEC action has the “blogosphere” buzzing.
“The possibilities that [FEC commissioner Bradley] Smith lays out are chilling and, if enacted, could spell the end of blogging as we know it,” says blogger Winfield Myers. “Indeed, it could turn much of what is published on the Net into a samizdat-style activity.”
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