Thank You Senators McCain and Feingold … You [Plural Expletive Deleted] By Stephen Bainbridge

A while back, Henry Farrell offered this prediction:

As political blogs become a more established part of the political landscape, they will increasingly be treated as another means of political expression, advocacy and fundraising – and the current regulatory regime will, one way or another, be extended to cover them. The only question is how the balance between free political speech and the need to regulate organized political activities is struck. (Link)

It looks like he’s right. C-Net interviews Federal Elections Commission Chairman Brad Smith, who believes the FEC may well be forced by judicial decisions in cases brought by McCain and Feingold to regulate a vast swath of internet activity, including blogs!

What would you like to see happen?
I’d like someone to say that unpaid activity over the Internet is not an expenditure or contribution, or at least activity done by regular Internet journals, to cover sites like CNET, Slate and Salon. Otherwise, it’s very likely that the Internet is going to be regulated, and the FEC and Congress will be inundated with e-mails saying, “How dare you do this!”

What happens next?
It’s going to be a battle, and if nobody in Congress is willing to stand up and say, “Keep your hands off of this, and we’ll change the statute to make it clear,” then I think grassroots Internet activity is in danger. The impact would affect e-mail lists, especially if there’s any sense that they’re done in coordination with the campaign. If I forward something from the campaign to my personal list of several hundred people, which is a great grassroots activity, that’s what we’re talking about having to look at.

Senators McCain and Feingold have argued that we have to regulate the Internet, that we have to regulate e-mail. They sued us in court over this and they won.”

If Congress doesn’t change the law, what kind of activities will the FEC have to target?
We’re talking about any decision by an individual to put a link (to a political candidate) on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet.

Again, blogging could also get us into issues about online journals and non-online journals. Why should CNET get an exemption but not an informal blog? Why should Salon or Slate get an exemption? Should Nytimes.com and Opinionjournal.com get an exemption but not online sites, just because the newspapers have a print edition as well?

Sigh. How hard is it to understand those simple words of the First Amendment: “Congress shall make no law … abridging the freedom of speech….”? No law!

Supreme Court Justice Hugo Black was no saint (KKK member in his younger days and all that), but in his prime there was nobody more sound on the First Amendment:

Without deviation, without exception, without any ifs, buts, or whereases, freedom of speech means that you shall not do something to people either for the views they express, or the words they speak or write. (Link with more great quotes)

Surely that proscription ought to apply to political speech more fully than any other sort. And without any damned “ifs, buts, or whereases.”

Yet, the oddity of campaign finance regulation is that we have ended up in a place in which pornographers apparently have greater constitutional protection than political bloggers. It’s like we live in the First Amendment’s Bizzaro World.

You can email John McCain here and Russ Feingold here. Please let them know that some of us still believe in free speech.

BTW, please don’t blame Brad Smith. Polipundit called Smith a “powerful, unelected government official” and, at least by implication, suggests Smith is a party to “this crushing of free speech and the destruction of American liberty.”

In fact, Brad Smith is a First Amendment hero. As a law professor before he joined the FEC, Smith wrote many law review articles condemning campaign finance regulation. As a result, when Smith was nominated to the FEC, McCain and Feingold orchestrated a massive smear campaign against him. Since then, even while faithfully enforcing the statutes his Commission oversees, Smith has consistently been on the side of free speech.

So don’t blame the messenger!

This content was used with the permission of Stephen Bainbridge of ProfessorBainbridge. You can read more of his work by clicking here.

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