For those who worry about the possibility of the Federal Election Commission encroaching on the freedom of political bloggers, today's article in the Washington Post will not provide much comfort. Brian Faler notes that the FEC has now been ordered by the courts to regulate political spending on the Internet, and Faler points out the various connections by which independent bloggers might fall afoul of the FEC:

"We are almost certainly going to move from an environment in which the Internet was per se not regulated to where it is going to be regulated in some part," said FEC Commissioner David M. Mason, a Republican. "That shift has huge significance because it means that people who are conducting political activity on the Internet are suddenly going to have to worry about or at least be conscious of certain legal distinctions and lines they didn't used to have to worry about."

Which people, what activities and where those lines should be drawn, though, have yet to be determined. ...

Should bloggers who work for political campaigns, for example, be required to disclose that relationship? Should their writings include a disclaimer indicating that they were paid for by a campaign? What if a campaign supporter links his Web site to a candidate's home page? Is that considered a campaign contribution subject to government regulation? What if an independent blogger endorses a candidate? Or posts a campaign's news release? Are those contributions?

One of the problems we've seen from these questions are the tepid denials of the other FEC commissioners. Rather than simply say outright, "We won't regulate blogging," we get answers like this:

Four commissioners -- Democrats Scott E. Thomas and Ellen L. Weintraub, along with Toner and Mason -- said in interviews that they oppose regulating independent bloggers.

"I really see no appetite at the agency for regulating bloggers," Weintraub said. "I would be very, very surprised if that was the result." ...

"We regulate campaign finance. We don't regulate speech in the abstract. We only regulate when money is spent," she said. "One of the great things about the Internet is that it's really cheap, and if people are not spending money, then it's really none of our business. Most of the time when people are sitting at their home computers, blogging, e-mailing -- whatever they're doing -- there really isn't any money being spent."

Allow me to blow a few holes through the "trust us" scenarios Weintraub paints here. First, although bloggers may not make significant money now, that may well change in the next two or four years. (I know, I know ... wishful thinking.) If campaigns start spending heavy money on buying ads on blogs such as CQ, will they start accusing me of coordination when I link back to their sites in my posts? What happens if a national campaign hires me as a political analyst? Of course, I would immediately disclose that on my blog, but I would want to use CQ without affiliation, meaning that I would likely post on a variety of topics without involving a specific candidate. Does my right to free speech suddenly get diminished because I work for a candidate? (This scenario doesn't just apply to the Internet, for that matter.)

Here's another scenario that comes from my real-life experience from the last election. I cross-posted many of my essays at Blogs For Bush, without a doubt a site dedicated to promoting one particular candidate. If I participate on B4B by cross-posting my CQ posts, and B4B winds up being considered a campaign site for the purpose of regulation, how does that affect CQ?

The overall effect of such power to regulate the medium, even if the power remains sheathed, is to intimidate people into withdrawing their participation. Weintraub may not have the appetite to draw up these kinds of regulations -- for now -- but the next set of FEC commissioners might, especially if Congressional incumbents see bloggers as a threat. The only long-term solution is the repeal of the BCRA and the erosion of First Amendment freedoms it imposes on political speech in America.

UPDATE: Guess who's having a closed-door meeting to discuss their upcoming regulatory efforts tomorrow? The FEC will have an open meeting on Thursday, March 24th at 10:00 AM ET as well to discuss Proposed Rulemaking on the Internet: Definitions of "Public Communication" and "Generic Campaign Activity" and Disclaimers. (thanks to CQ reader Demosthenes)

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» WaPo Relies on Pew-funded Source from Democracy Project
Today's Washington Post carries an article on the FEC and bloggers. That's good news, both since it gives the story wider play, and since it may serve to alert some bloggers who have dismissed the threats posed by the FEC's... [Read More]

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» He Who Smelt It Dealt It? from Gus Van Horn
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