Not to rain on everybody's hysteria parade, but the already much-remarked-on C|Net interview with FEC commissioner Bradley Smith, touting the supposed "coming crackdown on blogging" looming with the threat of FEC regulation of Internet political activity, has to be taken with a bunch of big grains of salt. For starters, Smith is one of the Republican commissioners, and it's at least worthy of skeptical note that he's positioning himself as a defender of freedom of speech against Democratic willingness to abide by a judge's decision (of last October, by the way) that revokes an FEC exemption of Internet adovcacy from regulation.

In 2002, the FEC exempted the Internet [from McCain-Feingold] by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision. "The commission's exclusion of Internet communications from the coordinated communications regulation severely undermines" the campaign finance law's purposes, Kollar-Kotelly wrote.

Smith and the other two Republican commissioners wanted to appeal the Internet-related sections. But because they couldn't get the three Democrats to go along with them, what Smith describes as a "bizarre" regulatory process now is under way.

A commenter on the First Draft post points out that the C|Net interviewer is "a notoriously conservative Libertarian who's often willing to paint Repugs as natural friends of free speech." And the interview itself consists of a series of overreaching, alarmist comments with no apparent grounding in the reality either of Kollar-Kotelly's ruling or of whatever regulatory plans might be under consideration.

Q: What rules will apply to the Internet that did not before?

... The real question is: Would a link to a candidate's page be a problem? If someone sets up a home page and links to their favorite politician, is that a contribution? This is a big deal, if someone has already contributed the legal maximum, or if they're at the disclosure threshold and additional expenditures have to be disclosed under federal law. ...

How can the government place a value on a blog that praises some politician?

How do we measure that? Design fees, that sort of thing? The FEC did an advisory opinion in the late 1990s (in the Leo Smith case) that I don't think we'd hold to today, saying that if you owned a computer, you'd have to calculate what percentage of the computer cost and electricity went to political advocacy.

It seems absurd, but that's what the commission did. And that's the direction Judge Kollar-Kotelly would have us move in. Line drawing is going to be an inherently very difficult task. And then we'll be pushed to go further. Why can this person do it, but not that person?

It makes a great deal of difference, in evaluating this, what's happening on the Democratic side (which us nowhere addressed in the article), and what Smith's motives are and how far they can be credited. Let's just note that, on the face of it, FEC regulation (which is much likelier to be circumspect in this area than not, as that latter comment implies in spite of Smith's huffing and puffing) is more a problem for the dirty-tricks right than it is for any left-wing political advocates. The proper context here, after all, is the Thune campaign's stealth employment of bloggers to job media coverage of his race against Tom Daschle last year—as well as an apparent smear campaign in Baltimore coordinated through FreeRepublic.com.

I'm not saying that the regulatory process will have a good result, necessarily: just that I'm unwilling to be immediately, hyperbolically suspicious of it without knowing more than I know from hearing Bradley Smith try to whip up a "libertarian" frenzy. And I'm certainly not opposed to there being mechanisms in law to punish political bad action on the internets, nor do I think such mechanisms must necessarily violate free-speech principles. Let's not get in a tizzy over this until we have to.

Update: I am seconded by the Iron Mouth, who apparently was more enterprising than I was and got Josh Marshall to notice this line of argument.

posted by michael  2:12:59 PM  
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