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Bloggers Beat The FEC, So Now What?

Bloggers won. That was the consensus two weeks ago, after a yearlong, off-and-on blog swarm that clearly shaped the thinking of the Federal Election Commission about campaign finance rules for the Internet.

That consensus is on the mark, too. Ordered by a federal court to write those rules, the FEC ultimately gave bloggers exactly what they wanted: a broad exemption from regulations that focus instead on political advertisements online.

Bloggers will not have to disclose election-related payments they receive, nor will they have to post disclaimers about such payments. In essence, the six federal election commissioners voted unanimously to preserve free speech online, at least to the extent the court would allow.

So now that the Internet campaign law of the land is settled, at least for the moment, what does it mean for the blogosphere in 2006, 2008 and beyond? The answer depends on whom you ask, so I asked four people who were central to the debate over the past year.

The first was Brad Smith, the former FEC member whose interview with News.com triggered the blog swarm. Smith left the agency last summer to return to teaching law in Ohio. Ironically, he also is now a blogger at RedState.

He is a harsh critic of campaign finance laws in general and never wanted to see any rules for the Internet. He often lamented that the FEC refused to keep fighting the courts and campaign finance advocates on that issue. But he is heartened by the rules the FEC crafted.

Smith is reluctant to play the role of prognosticator. "That's one reason I think it's important to leave the Web free to develop," he said in an e-mail interview. But he thinks the new rules could foster more blog activity. "My gut sense is that blogs will be a bit more organized ... in deciding to raise money for candidates, for example," he said. "Or we may see blogs and various Web fora more clearly setting up areas for supporters of preferred candidates to get together and post or chat."

What he said won't emerge -- or won't matter if they do -- are the kinds of abuses that motivated reform advocates to push for tougher rules: front blogs by corporations like Halliburton and party-funded "astroturf" blogs. "All this scare stuff is pure nonsense from people who simply cannot bear the thought that somewhere, someplace, they might not be in control of speech," Smith said.

Allison Hayward, a former FEC aide to Smith who blogs at Skeptic's Eye, expects more corporate- and union-funded blog activity "because they would have been the entities chilled by the legal uncertainty" had the FEC not acted. But that's fine, she said in an interview. "People on the receiving end will -- hopefully -- respond in kind and lead to more debate and a more engaging campaign."

Like Smith, Hayward anticipates more candidate blogs. But both doubt such blogs will have much impact. "Blogging works with snark and critical distance," Hayward said. "Those aren't elements of a campaign usually -- unless you're Eugene McCarthy."

Interestingly, Hayward thinks simple text blogging may have "topped out" as a political force, to be usurped by advances in audio and video technology. Parodies of candidate ads could become popular in short order, she said.

Depending on where that leads, new calls for reform could surface. "If we see some video take off and affect the debate -- something like JibJab meets the Swift Boat Veterans -- I would expect that there would be calls for expenditure thresholds," she noted. "Thresholds can have some bite with video, where basic blogging is very cheap."

John Morris of the Center for Democracy and Technology, a group whose compromise proposal on Web campaign rules became central to the debate in March, is convinced that bloggers will gain influence because of the FEC rules. They will question, challenge and rebut candidates at every step, he argued, and they might not have done so as aggressively without the rules.

"[T]he politically savvy bloggers would have spoken anyway," Morris said, "but I think the FEC rules will broaden the field to include bloggers that might well have been chilled from engaging in political debate."

CDT had argued for up-front disclosures of campaign or party payments to bloggers, and Morris still advocates that idea. But he does not foresee any major abuses without such disclosures. "If a state party or a campaign pays a blogger, that payment will become known, and the blogger will come to be known as a spokesperson for the campaign that is paying him or her."

Carol Darr of the Institute for Politics, Democracy and the Internet, is less optimistic about the new rules. "Between the media exemption and the rules exempting most blog activities, there is plenty of room for online political mischief," she said, especially when combined with other perceived loopholes. "Think Swift Boats on steroids."

Darr, who was vilified by leading bloggers and their readers during the FEC debate, also made a reference to JibJab. "I expect to see lots of funny/mean JibJab-style political videos, lots of micro-targeted e-mails, and undisclosed payments to bloggers made by third parties, not candidates, in order to escape disclosure."

She warned that abuses of the new rules are likely to start immediately -- and to escape notice. "Exemptions and loopholes never go unexploited for long," Darr said, "but if you have a good lawyer, the funding of many of these activities can escape public disclosure."

Posted by | 07:00 AM

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Comments

You wrote, "Bloggers Beat The FEC, So Now What?
Bloggers won."

If bloggers won why is the FEC still in existence?
I think you need to redine winning.

Terry | 04.11.06 11:12 AM

'Winning' would be if the FEC said "as an independent and coequal branch of government, we decline to enforce the Court's gross misreading of the Constitution." As it is, the FEC is accepting an unconstitutional power and not implementing it only as a matter of policy.

PersonFromPorlock | 04.11.06 11:45 AM

You only get as much freedom as you are willing to fight for. That is why re: blogs the FEC never bothered me. They can't take the heat if it is strong enough. Right and left agreed on this one.

M. Simon | 04.11.06 02:36 PM

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