Blogosphere Under Attack

The FEC's Newest Threat to Internet Politicking

BY ARI SAVITZKY

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Illustration by Ellen Chu
Blogging

BLOGGING WAS ONCE a useful means for publicizing the daily routine of one's cat. For feline bloggers, it would be hard to imagine that one day their sites would interest federal regulators. But with blogs peddling breaking news, raising fistfuls of cash for candidates, and providing virtual forums for partisan activists-in other words, developing political power-they have attracted the government's attention.

While the Federal Communications Commission might seem like a natural venue for a discussion of blog regulation, it is the Federal Elections Commission which has taken action. In early March, the FEC, composed of three Republicans and three Democrats, began considering how campaign finance law applies to online political activity, including paid advertising, emailing and web logs, or blogs. The Commission, whose purpose is to define the specific regulations outlined in federal campaign finance statutes, had initially issued a blanket exclusion for all internet activity in their rules based on the 2002 Bipartisan Campaign Finance Reform Act, commonly know as the McCain-Feingold Bill. But the bill's House sponsors, Christopher Shays (R-CT) and Martin Meehan (D-MA), took the FEC to federal court over blogs and, last September, they won.

In Shays v. FEC, US District Judge Colleen Kollar-Kotelly ruled that the blanket exemption for internet activity from FEC rules regulating "public communication" violated the intent of the 2002 legislation. While the FEC is appealing several of the court's decisions, it decided not to appeal Judge Kollar-Kotelly's request for specific rules about internet political activity, though it did wait until after the 2004 election to begin creating them.

The Commission's first public foray into their new judicial mandate sparked outrage among bloggers. In an interview with Cnet.com, a technology news site, Republican Commissioner Bradley Smith noted, "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." It is unclear whether Smith, who opposed regulating internet politics in 2002, was sending up a test balloon to see how much potential regulation the public-and the "blogosphere"-might be willing to stomach. In rewriting the rules, the commissioners will consider whether political sites are "coordinating" with campaigns by linking to their websites, and whether bloggers who donate their expertise, time, equipment and perhaps even their budding cult celebrity to a campaign are making "in-kind contributions" regulated under McCain-Feingold.

Under that law, contributions of over $1,000 to a political campaign must be made public, and newspapers, TV networks and periodicals enjoy a blanket exemption. The partisan nature of political blogging, and the use of the internet to raise money and direct political activities puts blogs in something of a gray area, which prompted Judge Kollar-Kotelly's ruling. But the difficult questions remain: "'How do you value this stuff?" asked Democratic Commissioner Ellen Weintraub. "Because we only track money-campaign money that people spend on campaigns-not their thoughts or their beliefs or their statements." Weintraub says the the FEC is "looking at whether there is something short of a complete exemption for internet activity," but that it will not ultimately "do anything that affects what somebody sitting at home, on their home computer, does."

Two weeks ago, the Commission released a "notice of proposed rule-making" indicating that it will primarily consider whether the contribution limits in McCain-Feingold should be applied to online advertising, and implying that the majority of online activity will not be regulated. The proposed regulations, which will now be given a public hearing, apply only to services or advertisements created for compensation, though what constitutes "compensation" will in turn provoke eventual legal wrangling. Meanwhile, Congress has gotten involved. On March 17, Senate Minority Leader Harry Reid (D-Nevada) proposed a bill to exempt internet communications from FEC regulation, saying that regulating "this new and growing medium" was not the intent of McCain-Feingold.

According to PubServ, an internet research group, there are currently 8 million blogs, with hundreds, if not thousands, more created every day. While only a fraction of those are politically themed, and a fraction of that fraction popular enough to wield any influence, the nature of the internet makes them almost impossible to regulate through conventional means, a fact acknowledged by the FEC. But with campaigns actually paying bloggers to champion their causes, as Howard Dean reportedly did, and attack their rivals, as newly minted South Dakota Senator John Thune did to his predecessor, Tom Daschle, some regulation mandating financial disclosure from bloggers seems inevitable.

Ari Savitzky B'06 blogs about his cat at www.tobloggan.blogspot.com

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