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From the diaries -- great proposal -- kos)
I testified with Markos and Duncan (Atrios) to the FEC last Tuesday. The FEC decided to extend the period for post-testimony comments up to a week. The following is a comment I am going to submit. I would appreciate your feedback.
Thank you for letting bloggers testify about applying campaign finance reform laws to the internet. The whole experience involved a clash of two different worlds, and hopefully, we will bridge them. As the FEC Commissioners work to apply regulations to the internet to comply with campaign finance legislation, we would like the opportunity to show you a way that the principles behind the campaign finance legislation - the elimination of corruption and the protection of the First Amendment - can coexist on the internet.
Before we get into this proposal, let's look at how the FEC currently uses the internet to augment its mission, and see if there are not lessons to be drawn when understanding the nature of regulating 'public communications' online. You don't have to look far. Indeed, the least controversial and best regulatory mechanism the FEC has designed is not a rule telling people what to do, but a database. Specifically, the FEC donor database, a public and searchable archive that allows any citizen or journalist to research the donors of any registered Federal political committee. When combined with the power of the internet, a bevy of anti-corruption tools - such as
opensecrets.org - were created for citizens to access and use. With blogs, any citizen can sleuth and hold campaigns accountable for their donor base and communicate that outward. A more people go online, this power of ordinary citizens to fight against corruption will only grow.
Are there lessons here that we could use to keep political corruption from organized money out of the process? We think, yes. The reason the FEC donor database succeeds in regulating where rules fail is because it works with the architecture of the internet, rather than against it. In other words, regulation in the internet age is about changing the information environment, and letting a network of bloggers, journalists, organizations, and citizens do the rest. In other words, the notion that regulating public communications solely means telling organized entities what they can and can't do rather than helping the public itself communicate is a flaw in the definition of public communication, and a misunderstanding of how power and corruption work in a decentralized system.
So let's turn the problem of political corruption from money in the process around, and unleash citizens on the problem of corruption rather than just a regulatory agency. To that end, the single best and least intrusive thing the FEC could do to root out corruption in the campaign world be to create a public database for communication by Federal political committees. This 'FEC Public Communications Database' would be an archive of all communications coming from any Federal registered Political Committee that is distributed to more than 10,000 people. Every direct mail piece, every TV spot, every radio spot, every email, every official blog entry - would go into this publicly archived and searchable database within 24-48 hours of its release. That way, just as political committees must stand behind who gives to them, they will also need to stand behind what they say. A model for such a database is the Internet Archive, at www.archive.org, an organization dedicated to archiving the internet.
The creation of such a database avoids many serious problems posed by the intersection of old regulations and a new world. First of all, it will naturally change along with technology. Should a new type of technology appear to displace or augment blogs, it would not matter. Second, the FEC Public Communications Database isn't imposing a restriction on anyone. No one is prevented from doing anything, it's just that what political committees do is open to the public. Third, if designed well, such a system is not confusing to the public or political committees. Fourth, such a database would not necessarily preclude other forms of regulation, just as the FEC donor database doesn't by itself impose restrictions on donations. It would work with existing regulations.
The reasons to create such a system are manifold. Citizens will be able to use the tools of the internet to comb and talk about campaigns, drawing from the FEC Public Communications Database. With this enlarged public sphere, they can engage in a more open political discourse. And candidates in office will have a complete record of everything they ran on, searchable by the public. Candidates will be able to justify their governance more or less easily, and the connection between the political discourse of campaigns season will be more solid. This in itself is a substantial restriction on corruption, with a natural enforcement mechanism.
Right now, the internet is the most transparent mechanism for political communications; public websites can be seen by all and Google and other services archive large parts of them. Opt-in email lists by campaigns means that anyone can get their latest public emailing if they so chose. While it would still be useful for the FEC Public Communications Database to archive internet communications, it's really the use of the internet to store other communications - radio/direct mail/tv - that provides the immense added value in terms of elevating public discourse.
Creating a system like this will not change the amount of money in politics, but it will do something more important - it will change the amount of power money can buy in politics. For what organized commercial centers of power find when they go online is that the more prominent they are, the less control they have over the conversation. This is true in the political world as well. If the FEC gives citizens more tools to engage in robust public communications themselves, it will change the architecture of political discourse much more aggressively than rules which can be circumvented. In addition, by pulling all offline communication onto the internet, the FEC Public Communications Database would foster genuine public communication and conversation around what political committees are most trying to hide. Rather than applying offline regulations to the internet, why not apply the online architecture of the web to offline corrupt political practices?
There are logistical problems with such a system, and there will be somewhat inconvenient reporting requirements for registered political committees. But these are not hard problems to solve, nowhere near as difficult as deciphering the current maze of regulations and law. Indeed, this proposal begins the process of fixing the inherent problems of McCain-Feingold. This legislation, designed to regulate communications from political committees to the public as if the public actually had no direct voice. The closest it comes is to carve out two exceptions - the media exemption, and the volunteer exemption. Both of these are designed to allow the public to communicate in limited pre-internet forms without coming up against regulations. Now, it's no longer necessary to see public communications as a limited and problematic information flow to be restricted. The FEC can now see its job as adding to the stream of political information a mechanism for citizens to determine the quality of the information they receive, and therefore, the quality of the government they elect.