OK

So the debate over regulation of the blogosphere is starting to boil, with the NY Times throwing its lot against HR 1606 (they call it the "Internet Campaign Loophole").

Except that this loophole has existed for several years and still hasn't been exploited. And the alternative plan (dubbed the CDT plan), hasn't been thoroughly debated and considered.

Note, HR 1606 was killed by the "reformer" groups and Nancy Pelosi because, they argued, it hadn't been "properly debated". Well, HR 1606 now has been properly debated and we're ready to vote on it. Sensing a looming defeat, the bill's opponents suddenly get behind the CDT proposal -- which has had NO debate nor committee hearings. Hypocrisy isn't too foreign to those types.

Adam B. challenged the "reformer" groups to answer three simple questions:

Do you believe that HR 4900 protects every aspect of DailyKos.com's current activities, including its being organized as an LLC, its receiving advertising revenue from a mix of candidates, parties, 527s and other groups, its fundraising on behalf of federal candidates and its provision of free space for posting to Democratic candidates?  Or do you still insist that this site is a political committee whose activities would be tightly regulated under HR 4900?

Do you believe that what DailyKos.com does should be free from the regulatory burdens of campaign finance law?  

Do you pledge that you would not file a complaint with the FEC or in any other venue against DailyKos seeking to restrict its current activities if HR 4900 passes?

The response? Crickets and a tumbleweed blowing through in the bacground. They are gunning for this site and others like it, and don't want to tip their hand.

Campaign Finance expert Bob Bauer writes:

Bonin has heard various assurances about what the bill would do, but he prefers to proceed with caution and to have explicit confirmation. Rick Hasen seems to hope that the exchange invited by Bonin, should it occur, will render the issues at stake more "tangible."  

The answers he should expect are already available through the Democracy 21 website. Mr. Wertheimer and company have posted a series of comments favorable to CDT and hostile to Hensarling, eight in all: five of them descry "loopholes" allegedly ripped into the law by Hensarling, and all of them, even without reference to loopholes, are united in their overriding concern with the sovereignty of the campaign finance laws, not the protection of the Internet.

It is in this context that the reform community's embrace of CDT should be understood: it is the regulatory alternative to Hensarling, designed to place the Internet squarely within the restrictions of the FECA and the jurisdiction of the FEC.

This will not deter the reform community from offering interpretations tailored to the needs of the hour. We will hear that CDT does more to protect online speech, and that Hensarling leaves online speakers exposed to an assortment of liabilities under the Act. This will be asserted, and the argument will stop at assertion:  little more will be presented in support of these claims. They are largely to be taken on faith.

Experience with reform lobbying in the past would suggest that there is some hazard in placing too much faith in these representations. The same reform proponents now seeking recognition as defenders of Internet politics conspicuously objected to any protection for Fired Up, which submitted the most important request to date for FEC approval of on-line political speech and commentary. Adam Bonin then rightly argued the opposite position. The difference between Bonin's clients and the reform community then, before the FEC, was the same difference separating them today, before the Congress:  as Bonin wrote at the time, it is the difference between two "paradigms," one that sees the Internet as "inherently different" and the other as "a threat to clean elections similar to commercial mass media." Democracy 21, on its own behalf and also for the Campaign Legal Center and the Center for Responsive Politics, took exception to Fired Up's "overly partisan purpose," including its stated goals of supporting Democratic candidates and `progressive candidates and causes at all levels.'"  

This was less than a year ago.  Also in 2005, the reform community participated in the FEC rulemaking on Internet activity, which was necessary only because of a legal challenge brought by that same community unhappy with the agency's deregulatory approach. At the time, Democracy 21 and its allies stressed the need in Internet regulation "to draw careful lines," with protection narrowed to that needed by "individuals" (stating that regulation should not "chill the beneficial use of the Internet at little or no cost for political discourse by individuals"; "the campaign finance laws can and should be read to provide ample breathing room for Internet campaign activities by individuals.")  Bloggers, as individuals, "should also generally be left free from regulation," but only where they provide a "function more similar to classic media activities." (emphasis added).  The reformers emphasized caution, limitation and "careful" line-drawing, to be achieved through regulation:  the dominant concern was not "allow[ing] the Internet to become an unregulated haven for unlimited soft money to be used in derogation of the campaign finance laws..."

Remember, we're not saying we should toss aside the CDT proposal. We're saying, pass HR 1606 now to preserve the status quo and prevent the FEC from releasing its rules.

Then we can consider the merits of the CDT proposal through the proper legislative process, with committee hearings and with full input from all the people who would be impacted by the legislation.

That's not too much to ask for, and is not unreasonable in the least. Especially considering that the great evils the reformers claim HR 1606 would unleash haven't happened yet.

Originally posted to Daily Kos on Wed Mar 15, 2006 at 08:15 AM PST.

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