Redstate

By krempasky Posted in FEC — Comments (7) / Email this page » / Leave a comment »

Mr. Hasen, an election law specialist, wrote this feature on the current FEC/blogger dustup. In it, we find much to agree on, but not everything.

First, he believes that bloggers paid by candidates ought to legally disclose said payments. No problems there.

Outside of the Internet, grassroots activity related to federal elections and uncoordinated with candidates is clearly permissible, though when the amount spent on the activity exceeds $250 the spender must file reports with the FEC that identify who is doing the spending and where the spending goes. In practice, the FEC has not enforced this threshold very aggressively, which is probably for the best because the threshold is way too low under current law. (There are no limits on the amount that can be spent by individuals, either within or outside the Internet, independent of candidates and political committees.) The $250 disclosure threshold, even if enforced more aggressively, will provide a safe harbor for much Internet-based political activity, where the marginal cost of setting up an e-mail list or web page is negligible. That is—and this is a point ignored by Commissioner Smith—because much Internet speech is so cheap, it falls below the threshold of even the disclosure rules.

I can't say that the fact that the FEC has not enforced a threshold aggressively in the past gives me much comfort. In addition, I don't believe this $250 threshold should make us feel safer, for two reasons. First, $250 in an election cycle isn't much if the FEC determines, through whatever process, that your entire blog is devoted to the election or defeat of a candidate. (maybe you just have a beef with a Congressional candidate in your area and write a LOT about him for several months)

Second, and more dangerous - the FEC has, in the past, determined the value of certain types of communications and contributions not based on what someone spends but on what the campaign receives.

Commissioner Smith suggests that a blogger’s placement of a hyperlink to a candidate’s home page might be considered coordination with that candidate, and that the action could therefore trigger coordination rules and valuation rules that could get the blogger in legal trouble for making an excessive in-kind contribution.

Actually, that's not what Smith's focus on. In fact, Smith specifically raised the issue of republication of campaign materials - a press release or talking points, for instance - in which case the FEC has already clearly understood it to be coordination. The hyperlink discussion was an outgrowth of that, to my understanding - in terms of assigning value to such a contribution.

The FEC’s rulemaking should extend the media exemption to bona fide newscasts, articles, editorials, and commentaries appearing in online journals or political blogs. New rules should preclude a complaint that an online journal or blogger is making an in-kind contribution to a candidate by promoting (or attacking) a candidate for federal office through a blog posting, online journal article or commentary, or link, even if the journal or blogger has communicated with a candidate or committee.

Here Hasen gets very close to a real solution - and I agree on the exemption even if I suspect any real exemption for bloggers will become a de facto internet exemption that anyone can claim (which I believe would run afoul of the judge's original order to regulate the internet).

But he also mentions, perhaps unintentionally, the great danger here. What is "bona fide"? Who determines that? It's these types of questions that make me apprehensive and alarmed - and I'm glad that Bradley Smith raised them.