The legal background to the regulatory threat to the internet is so complicated that it makes discussion of the legal issues easily susceptible to confusion as well as deception. The organization representing Senators McCain and Feingold as amici in the lawsuit that has resulted in the looming threat to political speech on the internet is the Campaign Legal Center (through the center’s Trevor Potter). Click here for the amicus brief filed by the center.
The center has issued a press release (“Setting the record straight: There is no FEC threat to the Internet”) castigating FEC Commissioner Bradley Smith for raising the concerns regarding FEC regulation of the internet that we discussed here yesterday. The press release seems to me to fall into the category of deception.
The press release basically argues that only paid ads will be covered for internet regulation. In fact, the FEC has already viewed paid internet ads as subject to regulation under FECA. Nowhere does Kollar-Kotelly’s opinion (click here) requiring the FEC to regulate the internet limit its reach to paid ads. See pages 132-156. Further, note that in the lawsuit Shays and Meehan also successfully argued that the FEC could not exclude unpaid broadcast ads from the reach of the law. See pages 153-56.
Once one sees that nothing in this decision limits its reach to paid ads, and that Potter and the McCain-Feingold sponsors favor regulating unpaid ads, the argument they raise falls apart, and all of Commissioner Smith’s points are, in fact, correct. The entire internet is up for grabs, and there is no reason that republication of campaign emails or posts, or advocacy of candidates on blogs, or links to candidates web sites, are not in serious danger. Although it is gratifying that some Democrats on the FEC are disavowing any intention to regulate blogs, it would be nice if Senators McCain and Feingold would do the same and if Congress would clearly undo the damage it appears to have done.
UPDATE: See also “Countering candor at the FEC, how do you stop a blogswarm?” (and links) at Democracy Project, and both “How big is the threat to blogs?” and “The FEC vs. blogs” at Michelle Malkin. Daniel Glover’s National Journal article reporting some of the give-and-take is “Bloggers, election officials react to hint of regulation.”
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