The Coming Crackdown on Political Blogging

Federal Election Commission commissioner Bradley Smith is warning of a coming clampdown on political blogging. This is a consequence of the McCain-Feingold campaign finance reform law of 2002. The FEC excluded internet communications from its application of the law, an exclusion the courts have now overturned. How to apply the law to the internet is unclear. Does a hyperlink on a person's blog to a candidate's web site constitute a contribution to the campaign? If I write a piece praising a candidate and advocating for him or her, is that a contribution? If so, what is the value of that contribution?

This would appear to apply even beyond blogging. "[A]ny coordinated activity over the Internet would need to be regulated, as a minimum." Smith writes of sending out mass emails, meaning "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." In other words, if I send something out to friends and family through email advocating a particular candidate, that could constitute a regulatable activity.

It looks to me like the issue is the law's regulations on electioneering communications. One exception to these regulations is the so-called "press exemption", which exempts the news media. It is not clear that this can be applied to bloggers and other internet users

[b]ecause the statute refers to periodicals or broadcast, and it's not clear the Internet is either of those. Second, because there's no standard for being a blogger, anyone can claim to be one, and we're back to the deregulated Internet that the judge objected to. Also I think some of my colleagues on the commission would be uncomfortable with that kind of blanket exemption.

Without Congress stepping in and explicitly addressing internet communications, "It's going to be bizarre."

Update (3/5/2005): The Decembrist has an extensive reply to Smith's comments in this interview.

Update (3/9/2005): Another FEC commissioner, Ellen Weintraub, has written a piece on CNet urging bloggers to calm down, saying, "reports of a Federal Election Commission plot to 'crack down' on blogging and e-mail are wildly exaggerated." She continues

By law, we need to decide on the scope [of the regulations on internet communications] by a public vote, and the rulemaking cannot proceed without the votes of a majority of the six commissioners. At that point, we'll not only publicize what we're contemplating, we'll invite and consider public comment before we make any final decisions. That scope document (called a notice of proposed rulemaking) will be considered later this month. Until that happens, concerns about crackdowns are premature, at best.