The FEC Could Learn A Few Things...
By Clayton Posted in User Blogs — Comments (3) / Email this page » / Leave a comment »
Late yesterday, we received an advance copy of the FEC's Notice of Proposed Rulemaking (NPRM) discussing Internet communications and possible regulation under the BCRA of 2002. Through an uncomfortable litany of exceptions and qualifications, the commissioners try desperately to support free speech while creating a maze of conditions that do nothing to address the practicalities of... well, Internet communications.
Most regular blog readers instinctively know that the proposed rules are flawed. By the time you read this, countless others will have analyzed, handicapped, and otherwise beaten down the NPRM. But why is it that the rules are flawed?
In a curious dichotomy, another federal agency that uses the NPRM process provides us with an example of how rulemaking can follow technology, instead of ignoring it.
Read on to find out more.Traditional campaign finance rules have dealt with the absolute. Money, time, materials can all be measured. Alongside those metrics, other important criteria such as geography play a vital role. Direct mail expenditures and the physical location of the recipients can be easily determined. The size of a corporation or citizenship of a donor can also be easily determined. These are the finite and known metrics that the FEC has historically used to prepare their regulations.
However the Internet, true to its moniker of `revolutionary', presents a number of challenges to the FEC. If a campaign buys 100,000 sets of views from DailyKos, how do we determine how many of those viewers were in the United States? How many were foreign nationals? If a private diarist uses Redstate.org to link to a local politician, what is the intrinsic value of that benefit?
What a thrill it must have been, for the staffers and commissioners at the FEC to sit down over that conference room table and discuss every possible scenario a blogger might be in. "Are they at home?" "What if they don't own the computer?" "Okay, if it increases the expenses of the employer, it counts; otherwise, we leave it alone." I wonder if they used a flow chart.
The FEC should take a bio-break, and catch a cab to 445 12th street.
The Federal Communications Commission is "charged with regulating interstate and international communications by radio, television, wire, satellite and cable." In 1934, when the FCC was created, the mandate was much different. Regulate, yes - but in the context of growing the new technology of radio communications as a public service. The goal was growth - an important distinction from the FEC where the goal is restraint.
So how does the FCC get it right? They have adapted their rulemaking over the years to the technology being regulated. A simple but fundamental difference from the FEC.
Early radio communications used radio frequencies that had the capability of traveling long distances - in many cases internationally. Recognizing that these radio signals were shared across geographic and national boundaries, countries worldwide developed a structure to coordinate of those frequencies. Commercial or amateur, maritime or aviation, voice or data. The FCC took charge of licensing stations that transmitted within the United States, while clearly recognizing their inability to completely control the medium in use.
As technology progressed, our ability to use new, higher frequencies came with it. These new frequencies, such as broadcast television, two-way radio, and cellular do not have the ability to carry longer distances, and could be regulated differently. (Indeed, the FCC took a more active approach in managing these frequencies - ultimately making the decision in the 1990's to auction blocks of radio spectrum to private companies for use.) The lesson - that the FCC adapted rulemaking to the technology, creating a new regulation model in response to the situation at hand.
The FEC's NPRM is flawed because it tries to impose the classical metrics of campaign finance regulation on the Internet. Not only do the metrics not exist on the Internet, there is a distinct lack of apropos criteria on which to regulate. There are plenty of subjective ways to determine coordination and monetary value - but few concrete, measurable methods with today's technology.
Who among the FEC will dare to reset the process and reiterate the goal - to give more power to individuals in the election of their representatives? Who will recognize that the Internet is the incubator of equalization, and regulate for growth instead of constraint?
Note to FEC: Clayton Wagar maintains the Redstate.org webserver, and does so completely as a volunteer effort. This post was created and posted from a computer owned by a Fortune 50 company, and the data resides on a server I do not own.
regulating internet content, IMHO.
What exactly do you mean by your post of:
Feinstein disfacienda est.
Which Feinstein are you referring to, Diane?
... tired bureaucacy: attempt to apply analog formulae to digital circumstances. They cannot regulate that which they cannot understand, and I think the commissioners themselves need to be rewired as much as do the reg models.
They're going to have to rely on people like Reynolds, dKos, RedState, etc., and these people have a natural resistance to regulation.
As it is, I doubt they know even the questions to ask. (You cited a few as examples.)
We should not acquiesce to the constitutionality of McCain-Feingold. Merely responding to the FEC rule-making is acquiescing. We must insist on the repeal of McCain-Feingold as, on its face and obviously, an unconstitutional regulation of freedom of speech. We should be tireless and relentless in this insistence, or every one of the "Four Freedoms" enumerated in the First Amendment will be open to incrimental "correction" through regulation.
Push back. Hard.
McCain-Feingold delenda est.