There will be no crackdown on blogging, despite what Bradley Smith says. Even if rules which strike at the heart of political blogging are drafted, there are things that we can do to shape those rules.
As many of you already know, Bradley Smith, former FEC Chair and current FEC Commissioner gave an interview to Declan McCullagh over at CNET News. CNET's editors provocatively titled the piece "The Coming Crackdown on Blogging." After "A" list blogger Atrios posted a link to the article, the blogs exploded. Unlikely alliances sprouted into being as rightists over at RedState.org and Kossacks from DailyKos joined hands to protest the new "rules."
But there are no "new rules." Smith, a single member of the Commission, was arguing that the decision by Judge Kathleen Kollar-Kotelly in the case of Shays v. Meehan would essentially tie the hands of the Commission and force them to regulate the blogs tightly. According to Smith,
The FEC in the late 1990s (in the Leo Smith case) that I don't think we'd hold to today, saying that if you owned a computer, you'd have to calculate what percentage of the computer cost and electricity went to political advocacy.
It seems absurd, but that's what the commission did. And that's the direction Judge Kollar-Kotelly would have us move in.
But that is expressly NOT what the opinion of Kollar-Kotelly said. Kollar-Kotelly's 157 page opinion deals with the Internet exclusion issue on pp. 48-58. The analysis involves the application of the Supreme Court's Chevron analysis of challenges of Agency regulations. Kollar-Kotelly held that Congress did not include the Internet as a definition of public communication, but that there was no evidence that Congress intended to exclude the Internet from “any other form of general public political advertising” as defined in the BCRA. See 2 U.S.C.§ 431(22). Thus, Congress intended all other forms of “general public political advertising” to be covered by the term “public communication.” p. 55-57.
The question then is whether links to candidate's pages on blogs, advocating for candidates on blogs or ads on blogs are "general public political advertising." According to Kollar-Kotelly, “[w]hile not all Internet communications do not fall within this descriptive phrase, some clearly do.” at 52. So who is to decide what falls under that umbrella? Kollar-Kotelly indicates that "[w]hat constitutes "general public political advertising" in the world of the Internet is a matter for the FEC to determine. p. 56-57. (Emphasis added).
Thus, Bradley Smith is pushing the truth a long way when he says that the judge is pushing the FEC to start going after every single link in every blog directing to a candidate's website. Whether or not that is the case is up to Mr. Smith and his cohorts, not Judge Kollar-Kotelly. I think it is highly unlikely that the FEC is going to come up with a huge scheme to monitor blogs for links to a candidate's web pages. The FEC could create a definition of "general public political advertising" that would only include obvious canned political ads provided by the candidate or third party which linked to a candidate's website. Mere advocacy and linking would not count as advertising. This would not prevent bloggers from advocating for whomever they wanted.
So then why did Smith attempt to paint his hands as tied in this matter? Simple--he wanted to discredit the McCain-Feingold bill as a whole. If he can get left-wing bloggers to start up a "united front" with the rest of the denizens of the Internet, pressure might build for the repeal of the law.
As I said earlier, the constitutionality of measures to control speech on blogs is dubious. The vast majority of them, like this one, are privately maintained journals not under the control of any organization or group. Second, the regulations against such speech must pass a legal test known as "strict scrutiny," the highest form of constitutional review. The regulation must be narrowly tailored to meet an overriding state interest. Furthermore, the least restrictive means must be used to effect the regulation's mandate. Here, banning of blog links or mandatory reporting of linking by bloggers would cover almost every type of non-journalistic internet political posting which linked to a candidate's website and would be extremely restrictive, because it would require reporting on a massive scale, along with fines. Chilling effect indeed.
Of course enforcement would also be a huge problem. An army of monitors would be required to follow up on leads regarding ads. The FEC's budget would have to grow by multiples just to hire the persons necessary to monitor and prosecute violations.
So what should bloggers do? Simple. Wait for the proposed regulations to come out. A comment period will follow. Someone should be in charge of monitoring rulemaking over at FEC. When the regulations come down, individual bloggers and committees should get together to flood the General Counsel of the FEC with plenty of suggestions regarding the regulations to ensure that regular advocacy blogging is treated like it should be--the man on the street saying his piece.
Update, Friday 1:49 As if you needed more proof, here's Instapundit citing Ed Morrisey:
McCain and Feingold have managed to foster real bipartisanship -- they've gotten liberal and conservative bloggers alike to detest them. Jerome Armstrong at MyDD, Atrios, and DailyKos all agree -- this legislation has become a serious threat to political speech, and John McCain and Russ Feingold have become two of the most dangerous politicians to American liberty since Huey Long. Jerome makes the point that the problem at the moment are the three Democratic FEC commissioners who appear intent on enforcing the law as McCain and Feingold insist, but both parties had a hand in creating this fiasco.
Morrisey has no idea what the Commissioners are going to do. Just because they voted not to appeal the decision, does not mean they will then vote to "crack down on blogging." The only person suggesting this is one Bradley Smith.