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I want to try to make this as non-lawyerly as possible, so bear with me.

To understand why the Reid proposal is a bad idea, you need to understand where it came from.

Not all laws are passed by Congress -- it doesn't have the time to work out the details of implementation.  After a law like the BCRA (McCain-Feingold) is passed, it's up to the relevant adminstrative agency to fill in the gaps through a rulemaking process.

In this case, Congress said nothing about "internet communications" in defining what "public communications" were under the Act -- that is to say, which speech and what activity gets regulated under all federal campaign finance laws?

So the FEC stepped in, and they issued a regulation that stated that "The term public communication shall not include communications over the Internet." 11 C.F.R. § 100.26.  (Yes -- Reid's language exactly.)

But an adminstrative agency can't do whatever it wants.  There are guidelines.  In the landmark 1984 Chevron case, Justice Stevens explained the test: (1)  Has Congress spoken to the precise issue at question?  If yes, neither the courts nor the agency can interpret contrary to congressional mandate.  (2) If Congress is either ambiguous or silent, the reviewing court must defer to the agency's position if it finds it is reasonable.

In this case, Judge Kollar-Kotelly found that the rulemaking failed both parts of the test.  On (1), she held that while Congress did not expressly include the term "Internet" in its statutory definition of "public communication," because it did include the phrase "any other form of general public political advertising," it had to intend to encompass Internet advertising as well.  On (2), she found the regulation to run directly counter to Congress' intent in passing the BCRA, for reasons I discussed here.  (Basically, it's that Congress' higher intent in regulating all coordinated communications supersedes the regulation in intent.)

So, the Reid bill is intended to say, "No, Courts, this is really what Congress itself wanted. The regulation struck down is exactly what we wanted"  And it's perfectly legal and reasonable to do, to buttress the FEC's initial regulatory attempt here, and it would become the law of the land.

But that doesn't make it smart.  By not regulating internet communications at all, it opens up massive loopholes, from fully-funded websites directly coordinated with campaigns to even removing campaign/PAC/527-funded websites from having to disclose that they are, in fact, funded by a campaign. As I see it, it's not that the Internet should be completely free of all CFR; it just shouldn't be more onerously regulated than any place else, and regulations should clarify that ordinary, non-paid online advocacy can continue unabated. But by excluding from regulation all political activity, you also exclude from regulation 527 speech, PAC speech, political party speech, and it's just too broad.

I'm happy to answer any questions you have, and I hope this was helpful.

Originally posted to Adam B on Fri Mar 18, 2005 at 06:39 AM PST.


So, the Reid bill

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Comment Preferences

  •  I've been dubious all along (none)
    that the FEC was really going to try to shut up bloggers talking about politics.

    But, I do trust Harry Reid to know what he's doing.

    How can we get over it when people died for the right to vote? -- John Lewis

    by furryjester on Fri Mar 18, 2005 at 06:45:49 AM PST

  •  Good points all. (none)
    I think that Reid is probably just using this as a means of telling the dems on the FEC to lighten up a bit on the internet, though.  But maybe these are explicit instructions, in which case your points are well taken.
    •  Well, they can't. (none)
      The Judge's order basically said, "FEC, you have to regulate Internet political communications, because Congress intended for their to be some regulation, so it's up to you to figure out how to fit the Internet into this framework."

      So they have to do something, in the absence of Congressional action.  The only question is what.  The FEC can't, again, say "no regulation at all."

      •  True again. (none)
        But how stringent or severe said regulation will be is, I assume, up the FEC to some degree.  

        It's interesting, though, that the Republicans on the committee don't seem to agree with that interpretation and weren't prepared to enforce any such regulation.  So what happens to them for not being on board?

        •  well, they have to. (none)
          An Order's an Order.  They have to do something.

          Incidentally, remove all the corporate stuff from my parade of horribles.  I had forgotten that the prohibition on corporate political activity was much broader than the "federal election activity" definition being modified here.

  •  an alternate theory (none)
    See this article.  Basically, impose regulation only when the website is "controlled" by a candidate, party or PAC.  Good read if you're interested.
  •  How is a blog (none)
    different than the opinion/editorial or LTE page in a newspaper?

    I agree that there needs to be some sort of regulation so that the internet(s) don't become the biggest loophole in the universe, but we need better definitions before we can do that.

    "The man of great wealth owes a peculiar obligation to the State, because he derives special advantages from the mere existence of government" - Teddy Roosevelt

    by mrboma on Fri Mar 18, 2005 at 11:22:18 AM PST

    •  IMHO (none)
      It shouldn't be treated any differently -- speech that's not paid for or otherwise controlled by (or coordinated with?) a candidate/PAC/party/etc. should be absolutely as free in this space as in any other.

      But the stuff that's regulated out there?  Some of it should be here, too.

      •  I agree... (none)
        ... but how do you tell the difference? What about when Kos was advising the Dean campaign. Would that make the dKos Dozen illegal?

        What about the fact that Boxer and other candidates/pols post here? Would that impact Kos' ability or right to raise and donate money, even if it went to others?

        What about use of email, as opposed to websites, for raising money? Wouldn't that be much harder to determine where it is originating and therefore harder to regulate (a la spam)?

        "The man of great wealth owes a peculiar obligation to the State, because he derives special advantages from the mere existence of government" - Teddy Roosevelt

        by mrboma on Fri Mar 18, 2005 at 11:50:09 AM PST

        [ Parent ]

        •  these are all good questions (none)
          As long as Markos is acting independently from the campaigns and they don't control his activities, I see no reason why he can't be just as effective and legal a bundler and solicitor of campaign contributions as a lawyer in a three-piece suit.  

          Should he have to disclose if/when he's being paid by a campaign?  Probably.  Does that include ad revenue?  Good question.

        •  Kos was likely (none)
          less controlled by the Dean campaign than the current White House press corps(e) are by the administration.

          Boxer, or any pol, can write a letter to whatever editor they please, and it's more likely to see the top of the page as well.

          IIRC, email lists are gold to campaigns.

          I'll tamp down the libertarian in me and say some regulation may be appropriate, especially if any taxpayer dough is involved.

          "If it once became general, wealth would confer no distinction." George Orwell

          by justme on Fri Mar 18, 2005 at 02:08:30 PM PST

          [ Parent ]

  •  I agree, (none)
    Acbonin. BCRA wasn't intended to limit all political speech; it was only intended to limit paid-for political speech. And with a 3D-3R split, the FEC isn't going to do anything without bipartisan support.

    The Rethugs, who don't want any limits at all, have succeeded in muddying the waters. They haven't fooled the courts, but they have scared the bejeebus out of bloggers, even liberal bloggers like Atrios and 'Kos. I see Reid's bill primarily as a means of neutralizing their fearmongering on the issue.

    The real risk is that Reid's bill actually gets passed, and then Bushco can pay his toadies in the M$M to put up pro-GOP content all over the Internet.

    "Did I say 500 tons of sarin and 25,000 liters of anthrax? I meant 'weapons of mass destruction-related program activities.'"

    by Mathwiz on Fri Mar 18, 2005 at 02:57:57 PM PST

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