There are two questions out there regarding the status of political blogs and the McCain-Feingold Bipartisan Campaign Reform Act.  The first, and more important is, should political blogs be regulated by the FEC?  The second question is, Will they?

The answer to the first question is: almost always no.  The answer to the second question is: probably no.

McCain-Feingold was introduced and passed to get rid of a vexing problem--how to stop a political group, aligned with a candidate, but not reporting directly to him, from pouring money into a race to buy TV ads supporting (or more importantly, slamming) a candidate.  Such a tactic could get around the campaign finance laws and result in an undue influence of money on elections--usually out-of-district money.

But the key difference between blogs and the spending on TV ads that McCain-Feingold was designed to stop has to play a role in any future regulatory analysis here. The problem with TV is its prohibitive cost and the relatively few outlets involved make real the possibility that one person could buy up all the TV time in order to influence the election.  When only one message gets out, the purpose of free speech is thwarted as much as if stormtroopers tore down the signs of opposing candidates. 

Blogs are different.  Because of the interactive nature of the Internet, no one is usually sent to a site they do not want to go, or forced to view content they do not want to see.  They must actively go to a page to reach it.  And once there, they can leave secure in knowing that there are millions of other pages where they can find content they want.

Not so with TV, at least locally.  Local TV advertising is dominated by two groups, local broadcasters and your local cable or satellite company.  This leaves generally at best four or five outlets for purchasing TV advertising.  A person watching TV has options, but when the local companies have all sold time to one candidate, they have locked up the market.  Not everyone sees the message of both sides.

Indeed it can be argued that blogs are the very thing needed to break the cycle that McCain-Feingold hoped to stop.  They are the solution, not the problem.

That's why it makes sense to make sure that blogs are not regulated as a TV ad would be--they do not limit the number of viewpoints a person can have access to, the expand them.

There are things that should be regulated on-line--actual advertising.  Sidebar advertisements should not be able to be given away for free to a candidate and not his or her opponent.  They must be paid for with hard cash, the same way any other ad might be paid for.  This is the only area where blogs and TV should be regulated the same.

An entirely different question is Will blogs be regulated? The answer is a resounding no in almost every case.  Except in cases where a blogger is getting paid with hard money to literally pimp a candidate, there is no basis for regulation.  In that situation, it is not a question of coordination, it is a campaign worker or contractor getting paid hard dollars by the campaign.

But when an individual expresses his support for a candidate in a blog, he is not contributing monetarily to it.   In Buckley v. Valeo, the Supreme Court found campaign contribution restrictions constitutional because  "a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication."  The Court saw the contribution as a symbolic act of free speech, and expressly held that the amount contributed "does not communicate the underlying basis for the support."  The Court held that "[t]he quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing."

In contrast, a blogger who continually supported the candidate of his or her choice would be communicating the underlying basis for the support, unless they only ran links to candidates, without any content at all.

The noises out of the FEC seem to indicate that no large scale regulation of blogs is in the offing.  Indeed, the only thing that seems to be happening is a concerted effort to undermine McCain-Feingold by Republican members of the commission.  Democratic members are steadfast in their refusal to go after blogs, while Republican members continually misstate the meaning of the Shays decision.

A quick comparison of statements by the commissioners on the matter makes this clear.  Ellen L. Weintraub, a Democratic Commissioner was clear on what she thought would happen:

"People should not be alarmed," said Ellen L. Weintraub, a Democratic commissioner. "Given the impact of the Internet," Ms. Weintraub said, "I think we have to take a look at whether there are aspects of that that ought to be subject to the regulations. But again, I don't want this issue to get overblown. Because I really don't think, at the end of the day, this commission is going to do anything that affects what somebody sitting at home, on their home computer, does."

But Republicans utterly overstate the ruling of Judge Kollar-Kotelly in Shays.  Michael Toner slyly overstates the judge's ruling in the case: "We have a ruling ordering us to go back and define a rule."   Not so, Mr. Toner.  Judge Kollar-Kotelly merely indicated that "What constitutes "general public political advertising in the world of the Internet is a matter for the Commission to decide."  (.pdf, see pp. 56-57).

Yet Bradley Smith continues to argue that the opinion went further than that:

In an interview, Mr. Smith said he did not believe that the judge's ruling limited the F.E.C. to regulating only paid advertising on the Internet.

"In theory, there's no reason why everything that goes on a blog advocating a candidate wouldn't be an independent expenditure and subject to regulation,"

Yet there is no language in the opinion to support these assertions--the judge merely ruled that the words "general public political advertising" applied to the Internet the same as all other media.

But more importantly, Smith and Toner simply don't have the votes.  The FEC is a six-member board, split between the parties.  Four people must vote for any new restrictive regulations applying to blogs.  No evidence exists that such regulation is going to get a single Democratic vote on the committee, let alone the votes of long-time anti-regulation advocates such as Smith.

So why do the Republicans on the FEC seem to be trying to push the story that their hands are being forced?  Simple.  They are opposed to FEC regulation of campaign spending at all and are anxious to whip up a storm in Congress to beat back McCain-Feingold.  Now that some seats have changed hands in the Republican's favor, they may feel like they have the votes to do so.

So, before all of the bloggers out there get all worked up about this issue and start moving to defeat McCain-Feingold, one has to ask about the motives of those who allege their hands are tied.  The stories they are telling are not true.  So why believe them in the first place.

This is not to say that there should be no vigilance on any proposed rulemaking, but that a healthy dose of skepticism is in order before the unsupported claims of Bradley Smith & Co. should be believed.

Update 3/7/05, 5:16 PM: It appears that Professor Richard Hasen of Election Law Blog agrees with me:

Appropriate regulation should meet two fundamental criteria: (1) grassroots activities should be regulated little, if at all; and (2) large-scale campaign activity—like advertising—that already faces regulation when done outside of the Internet should be regulated equally when the activity takes place through the Internet.

It is this impending rulemaking that spurred Commissioner Smith’s comments. He likely wanted to whip up the Internet community into an anti-regulatory frenzy, much like what happened in the non-profit activist community when it appeared last Spring that the FEC—in considering regulation of those "527" groups that became active in presidential politics—would regulate the campaign financing of some "501(c)" non-profits as well.

Commissioner Smith suggests that a blogger’s placement of a hyperlink to a candidate’s home page might be considered coordination with that candidate, and that the action could therefore trigger coordination rules and valuation rules that could get the blogger in legal trouble for making an excessive in-kind contribution.

The FEC likely won’t go down this route, nor should it. It should create a safe harbor for activities like linking to a candidate web page, much like current law creates an exception to the in-kind contribution rule for donating the value of one’s time for a campaign as a volunteer. There’s not much corruptive potential in creating such a hyperlink, and the government has no good reason to discourage what looks like beneficial, grassroots political activity.