Politics Mondays: Free The Blogosphere by Brian C. Anderson

The rise of alternative media political talk radio in the '80s, cable news in the '90s and the blogosphere in the new millennium has broken the liberal monopoly over news and opinion outlets. The left understands acutely the implications of this revolution, blaming much of the Democratic Party's electoral trouble on the influence of the new media's vigorous conservative voices. Instead of fighting back with ideas, however, today's liberals quietly, relentlessly and illiberally are working to smother this flourishing universe of political discourse under a tangle of campaign-finance and media regulations. Their campaign represents the most sustained attack on free political speech in the United States since the 1798 Alien and Sedition Acts.

Though Republicans have the most to lose in the short run, all Americans who care about our most fundamental rights and the civic health of our democracy need to understand what's going on and resist it. The most imminent danger comes from campaign-finance rules, especially those spawned by the 2002 McCain-Feingold Campaign Reform Act.

Campaign-finance reform now has the blogosphere in its crosshairs. When the Federal Election Commission wrote specific rules in 2002 to implement McCain-Feingold, it voted 4 to 2 to exempt the Web. After all, observed the majority of three Republicans and one Democrat (the agency divides its seats evenly between the two parties), Congress didn't list the Internet among the "public communications" everything from television to roadside billboards that the FEC should regulate.

Further, "the Internet is virtually a limitless resource, where the speech of one person does not interfere with the speech of anyone else," reasoned Republican commissioner Michael Toner. "Whereas campaign-finance regulation is meant to ensure that money in politics does not corrupt candidates or officeholders, or create the appearance thereof, such rationales cannot plausibly be applied to the Internet, where online activists can communicate about politics with millions of people at little or no cost."

But when the chief House architects of campaign-finance reform, joined by Mr. McCain and Mr. Feingold, sued claiming that the Internet was one big "loophole" that allowed big money to keep on corrupting a federal judge agreed, ordering the FEC to clamp down on Web politics. Then-commissioner Bradley Smith and the two other Republicans on the FEC couldn't persuade their Democratic colleagues to vote to appeal.

The FEC thus has plunged into what Mr. Smith calls a "bizarre" rule-making process that could shackle the political blogosphere.

This would be a particular disaster for the right, which has maintained its early advantage over the left in the blogosphere despite the emergence of big liberal sites like Daily Kos. Some 157 of the top 250 political blogs express right-leaning views, a recent liberal survey found. Reaching a growing and influential audience hundreds of thousands of readers weekly (including most journalists) for the top conservative sites the blogosphere has enabled the right to counter the biases of the liberal media mainstream.

Without the blogosphere, Howell Raines would still be New York Times editor, Dan Rather would only now be retiring, garlanded with praise, and John Kerry might be president of the United States, assuming that CBS News had gotten away with its last-minute falsehood about President Bush's military service that the diligent bloggers at Power Line, Little Green Footballs and other sites swiftly debunked.

Blogger nightmare

Are the hundreds of political blogs that have sprouted over the last few years 21st-century versions of the Revolutionary era's political pamphlets "press," and thus exempt from FEC regulations? Liberal campaign-finance reform groups like Democracy 21 say no.

"We do not believe anyone described as a 'blogger' is, by definition, entitled to the benefit of the press exemption," they collectively sniffed in a brief to the FEC. "While some bloggers may provide a function very similar to more classical media activities, and thus could reasonably be said to fall within the exemption, others surely do not."

The key test, the groups claimed, should be whether the blogger is performing a "legitimate press function."

But who decides what is legitimate? And what in the Constitution gives him the authority to do so? A first, abandoned draft of proposed FEC Web rules, leaked to the RedState blog last March, regulated all but tiny, password-protected political sites, so bloggers should be worried. Without a general exemption, political blogs could find themselves in regulatory hell.

Say it's a presidential race, Condi Rice vs. Hillary Clinton. You run a wildly opinionated and popular group blog call it No to Hillary that rails daily about the perils of a Clinton restoration and sometimes republishes Rice campaign material. Is your blog making contributions to Ms. Rice?

Maybe. The FEC says that a "contribution" includes "any gift, subscription, loan, advance or deposit of money or anything of value made by any person for the purpose of influencing any election for federal office." If your anti-Hillary blog spends more than $1,000, you could also find it reclassified as a "political committee." Then you've got countless legal requirements and funding limits to worry about.

In such a regulated Web world, bloggers and operators of political sites would have to get press exemptions on a case-by-case basis. The results, election-law expert Bob Bauer explains, would be "unpredictable, highly sensitive to subtle differences in facts and to the political environment of the moment." Even when the outcome is happy, says Mr. Bauer, "a favorable result is still an act of noblesse oblige by a government well aware that if it turns down a request, the disappointed applicant is left with litigation as the only option."

Sites would live in fear of Kafkaesque FEC enforcement actions, often triggered by political rivals' complaints. "If the matter is based on a complaint," notes former FEC counsel Allison Hayward, "the respondent will receive a letter from the FEC with the complaint and will be asked to show why the FEC shouldn't investigate." An investigation involves "the usual tools of civil litigation" document requests, depositions, briefs and the like.

The outcome can take months or longer to determine, says Ms. Hayward. "If a complaint is filed against you, there will be a flurry of activity while you respond, then perhaps silence then another letter will arrive and you will be required to respond promptly, then maybe nothing again for months."

Most political bloggers aren't paid professional reporters or commentators, but just democratic citizens with day jobs who like to exercise their right to voice their opinions. If doing so without a lawyer puts them or their families at risk, many will simply stop blogging about politics or never start.

Texas test case

If you think such fretting is silly, says Bradley Smith, consider the case of Bill Liles, who faced an FEC inquiry when Mr. Smith was commissioner. In 2000, a businessman in the little Texas town of Muleshoe, Harvey Bass, painted "Save our nation: Vote Democrat Al Gore for president" on a beat-up box and plunked it on his furniture store's porch.

Sick of looking at it, Mr. Liles and a friend pasted a "bigger and better" poster praising W on a trailer and parked it across from Mr. Bass' store. This was too much for local Don Dyer, who complained to the FEC that Mr. Liles' sign lacked mandated disclosures about who paid for it and whether Mr. Bush signed off on it.

Though the FEC in the end let Mr. Liles and his fellow activists off, the men had, in fact, broken not just disclosure rules but any number of other regulations, too, recalls Mr. Smith. They had clearly spent a bit more than $250 on their makeshift sign, for example, but hadn't reported it, as required, to the FEC. "Total statutory penalties could have easily exceeded $25,000," Mr. Smith observes.

How different is Mr. Liles' praiseworthy activism from that of many political bloggers? The medium differs, but Mr. Liles, like a blogger, is simply voicing his opinion. And this was pre-McCain-Feingold. Even if the FEC starts by regulating only a little bit of Web politics, instead of the extensive oversight it had at first planned and a laxer regime is likelier, thanks to the fierce outburst from political blogs, right and left, when they discovered their freedom of speech under fire there's no guarantee that the commission won't steadily expand its reach later.

"If the history of campaign-finance regulation is any guide," notes commissioner Toner, "once the FEC exercises jurisdiction over the Internet, the commission's initial set of regulations, even if narrowly tailored, are likely to lead to broader regulation in the future."

Right after McCain-Feingold became law, Mr. Feingold opined: "It is only a beginning. It is a modest reform. ... There will be other reforms." Most campaign-finance reformers share that regulate-to-the-max outlook, aiming swiftly or incrementally to close all loopholes.

Recognizing that McCain-Feingold is out of control, liberty-minded Texas Republican Jeb Hensarling introduced the Online Freedom of Speech Act (HR 1606) in the House last April. (Harry Reid has sponsored identical legislation in the Senate, showing that not all Democrats are lost on the issue.) The bill reinforces the Internet's regulation-free status by excluding blogs and other Web communications from campaign-finance strictures.

Brought to an expedited vote under special rules that required a two-thirds majority in early November, the bill opposed strenuously by the campaign-finance reform "movement" failed. Appallingly, about three dozen Republicans joined Democrats in torpedoing the bill. "Today's action marks a sad day for one of our nation's most sacred rights: freedom of speech," reflected House Speaker Dennis Hastert. "The last thing this Congress should be doing is trying to stifle public debate online."

Why should any American need government permission to express himself? Instead of a media exemption, blogger Glenn Reynolds sarcastically commented at a recent conference, maybe we need a "free speech exception, in which you are allowed to say what you want about political candidates without fear of prosecution by the government."

The Supreme Court says

You'd think that the Supreme Court would have rescued the nation from all this regulatory tyranny, which the left is now threatening to extend to talk radio and even television by bringing back the Fairness Doctrine. Mr. Bush reportedly agreed not to veto McCain-Feingold only because he was sure the court would do it for him and he could avoid riling up Mr. McCain. After all, the language of the First Amendment is unambiguous: "Congress shall make no law ... abridging the freedom of speech, or of the press."

The court has extended First Amendment free-speech protection in recent years to nude dancing, animated online kiddie porn, flag burners, tobacco ads and cross burners. For its original architects, of course, the First Amendment's chief aim was to protect political speech the right to criticize the government. The notion that government could restrict the speech of some which is what campaign-finance rules do would have been the very definition of unconstitutional tyranny for men like Samuel Adams and James Madison. How could the Supremes not stop this juggernaut?

Yet the court's 5-to-4 McConnell ruling approved almost all of McCain-Feingold. The 2003 decision shocked many, but the court's "evolving" jurisprudence in the area of campaign finance should have made it not all that surprising. For the last three decades, the Supreme Court has chopped away at constitutional protection for political speech when campaign finance is at issue. In his McConnell dissent, Clarence Thomas spelled out "the chilling endpoint" of the court's reasoning: "outright regulation of the press."

"Media companies can run pro-candidate editorials as easily as non-media corporations can pay for advertisements," Justice Thomas explained. "Media corporations are influential. There is little doubt that the editorials and commentary they run can affect elections.

"What is to stop a future Congress from determining that the press is 'too influential,' and that the 'appearance of corruption' is significant when media organizations endorse candidates or run 'slanted' or 'biased' news stories in favor of candidates or parties?"

Answer: nothing. Perhaps the liberal mainstream media will stop cheering campaign-finance reform when they realize their First Amendment rights are at stake, too.

Brian C. Anderson is senior editor of the Manhattan Institute's City Journal (www.city-journal.org). This essay is adapted from its Winter 2006 issue and appears in the Dallas Morning News. His e-mail address is edit@city-journal.org.

Brian C. Anderson

Monday, March 13, 2006