Tel-Chai Nation: More attempts by the left to silence free speech on the blogosphere

Front Page Magazine (via The Sixth Column) has a most disturbing report on how the Dems are trying to find ways to silence free speech on the blogosphere/internet. And one of those involved in this is "liberal" Republican John McCain:

The rise of alternative media—political talk radio in the eighties, cable news in the nineties, 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 current 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. Republican maverick John McCain’s co-sponsorship aside, the bill passed only because of overwhelming Dem support. It’s easy to see why liberals have spearheaded the nation’s three-decade experiment with campaign-finance regulation. Seeking to rid politics of “big-money corruption,” election-law reforms obstruct the kinds of political speech—political ads and perhaps now the feisty editorializing of the new media—that escape the filter of the mainstream press and the academy, left-wing fiefdoms still regulation-free. Campaign-finance reform, notes columnist George Will, by steadily expanding “government’s control of the political campaigns that decide who controls government,” advances “liberalism’s program of extending government supervision of life.”

The irony of campaign-finance reform is that the “corruption” it targets seems not to exist in any widespread sense. Studies galore have found little or no significant influence of campaign contributions on legislators’ votes. Ideological commitments, party positions, and constituents’ wishes are what motivate the typical politician’s actions in office. Aha! reformers will often riposte, the corruption is hidden, determining what Congress doesn’t do—like enacting big gas taxes. But as Will notes, “that charge is impossible to refute by disproving a negative.” Even so, such conspiracy-theory thinking is transforming election law into what journalist Jonathan Rauch calls “an engine of unlimited political regulation.”

McCain-Feingold, the latest and scariest step down that slope, makes it a felony for corporations, nonprofit advocacy groups, and labor unions to run ads that criticize—or even name or show—members of Congress within 60 days of a federal election, when such quintessentially political speech might actually persuade voters. It forbids political parties from soliciting or spending “soft money” contributions to publicize the principles and ideas they stand for. Amending the already baffling campaign-finance rules from the seventies, McCain-Feingold’s dizzying dos and don’ts, its detailed and onerous reporting requirements of funding sources—which require a dense 300-page book to lay out—have made running for office, contributing to a candidate or cause, or advocating without an attorney at hand unwise and potentially ruinous.

Not for nothing has Supreme Court Justice Clarence Thomas denounced McCain-Feingold’s “unprecedented restrictions” as an “assault on the free exchange of ideas.”

[...]

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 on-line 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 McCain and 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 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 the New York Times’s editor, Dan Rather would only now be retiring, garlanded with praise—and John Kerry might be president of the U.S., assuming that CBS News had gotten away with its last-minute falsehood about President Bush’s military service that the diligent bloggers at PowerLine, LittleGreenFootballs, and other sites swiftly debunked.

Are the hundreds of political blogs that have sprouted over the last few years—twenty-first-century versions of the Revolutionary era’s political pamphlets—“press,” and thus exempt from FEC regulations? Liberal 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 easily find themselves in regulatory hell. Say it’s a presidential race, Condi Rice versus 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 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” (my italics). If your anti-Hillary blog spends more than $1,000, you could also find it re-classified 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 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 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.

If you think such fretting is silly, says Bradley Smith, consider the case of Bill Liles, who faced an FEC inquiry when 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, Liles and a friend pasted a “bigger and better” poster praising W. on a trailer and parked it right across from Bass’s store. This was too much for another local, Don Dyer, who complained to the FEC that Liles’s sign lacked mandated disclosures about who paid for it and whether Bush had signed off on it.

Though the FEC in the end let Liles and his fellow activists off, the men had in fact broken not just disclosure rules but any number of other regulations, too, recalls 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,” Smith observes. How different is Liles’s praiseworthy activism from that of many political bloggers? The medium differs, but 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, co-sponsor Senator Russ 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 the 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 current regulation-free status by excluding blogs and various 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. “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.”

The House Democrats torpedoed HR 1606, but they had surprising help from about three dozen Republicans. Why did so many normally staunch opponents of campaign-finance speech restrictions shift camp? One possible explanation, perhaps cynical: it’s hard to unseat incumbents, given their advantages of name recognition, free media exposure, and an easier time raising donations. If they can make it harder for their rivals to speak, which campaign-finance rules help them to do, the challenger’s task gets harder still. (Notably, after Congress began campaign-finance restrictions in the seventies, incumbency rates began to rise.) Once in office, some Republicans may suddenly like McCain-Feingold’s power to shield them from criticism—including on the Web.

It’s not just the blogosphere that’s at risk. The Left has also begun to use campaign-finance reform—not McCain-Feingold but equally onerous state regulations—to try to shush political talk radio. The oldest of the new media—Rush Limbaugh went national around 15 years ago—political talk radio is the Right’s dominion. Not one of the top 20 nationally syndicated political shows features a left-of-center host, and right-leaning radio talkers outnumber liberals three to one. Over 40 percent of Americans tune in at least occasionally to this extremely influential medium, and over 20 percent use it as a primary source of political information. Given the Left’s continuing inability to compete on the dial—its much-ballyhooed Air America doesn’t even register in the Arbitron ratings in some markets—its preferred strategy in the future likely will be to force conservatives like Rush Limbaugh and William Bennett off the air.