Perspective: Blog rolling? D.C.'s new spin on Net rules

After a public outcry over government regulation of bloggers, some of Congress' most ardent campaign finance reformers have found themselves in a politically uncomfortable position.

Three years ago, Sens. John McCain, R-Ariz., and Russell Feingold, D-Wis., persuaded their colleagues to approve a campaign finance law with no exemptions for the Internet. But because that law now requires federal regulators to take a look at bloggers, McCain and Feingold are suddenly ducking for cover.

So, for that matter, are Reps. Christopher Shays, R-Conn., and Martin Meehan, D-Mass., the sponsors of the Bipartisan Campaign Reform Act in the House of Representatives.

Consider some recent history. When Congress was debating campaign finance rules at the turn of the millennium, those four politicians led the charge to regulate political Web sites as part of the sweeping changes to federal election laws that President Bush later signed in 2002.

For now, the congressional quartet seems to be arguing that they never intended to order a blogospheric crackdown.

At one point, Rep. Tom DeLay, R-Texas, offered an amendment saying that "none of the limitations, prohibitions or reporting requirements of this act shall apply to any activity carried out through the use of the Internet."

Led by Shays and Meehan, though, the House rejected DeLay's amendment by a 160-268 vote. Only five Democrats voted for it.

With the help of Democratic leaders then in power, McCain and Feingold bottled up a similar Republican-backed bill in a Senate committee. The legislation never saw the light of day.

When the Federal Election Commission was trying to figure out how to write regulations based on the McCain-Feingold law in mid-2002, its four sponsors once again urged a strict approach. In a letter to the FEC, McCain, Feingold, Shays and Meehan said they disagreed "with a blanket exemption for 'communications over the Internet.'"

Eventually, though, the FEC ruled otherwise. "The Internet is included in the list of exceptions (because) in most instances, it is not a broadcast, cable or satellite communication," the FEC concluded in a 4-2 vote, with one Democrat joining the three Republicans.

By now, you should be able to guess what happened next: Shays and Meehan sued the FEC. (Because Senate rules wouldn't let them participate directly, McCain and Feingold joined the effort by filing an amicus brief.)

Not regulating "Internet activities opens a major new loophole," Shays and Meehan said in court documents. It "will open new and powerful avenues for circumventing the governing contribution limitations, source restrictions and reporting requirements."

They won. U.S. District Judge Colleen Kollar-Kotelly sided with McCain, Feingold, Shays and Meehan last year and ordered the FEC to redo its regulations.

FEC in the hot seat
Normally that process might have been buried under dense layers of bureaucratic strata and gone unnoticed until it was already under way, but FEC Commissioner Bradley Smith blew the whistle in an interview with CNET News.com in early March. After Smith's warning, an army of bloggers mobilized to oppose intrusive regulations, and some members of Congress--including prominent Democrats--warned the commission not to be overly aggressive.

As a result, McCain, Feingold, Shays and Meehan have been left in an awkward position: As true believers in restricting certain types of politicking, they want to see the Internet covered by a weighty regulatory blanket. But as savvy politicians perhaps aspiring to a higher office someday, they don't want to take the credit for a crackdown on bloggers.

"A lot of people who (have recently) said, 'We don't want to regulate the Internet' weren't saying that before," FEC Commissioner David Mason quipped last week.

For now, the congressional quartet seems to be arguing that they never intended to order a blogospheric crackdown. They argue, for instance, that "there is simply no reason--none--to think that the FEC should or intends to regulate blogs."

But a March 10 draft of the FEC regulations CNET News.com reported on last week would have done just that.

It's too early to know what the FEC will do. The regulatory process has just lurched to a start, and a final rule is not expected until the end of the year. We do know that thanks to the outcry from thousands of bloggers, the draft regulations released on March 23 are not nearly as onerous as the March 10 draft would have been.

The real danger is that if the FEC doesn't go as far as McCain, Feingold, Shays and Meehan would like, the agency will find itself back in court--and the entire process will begin again.

Biography
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.

More Perspectives

Mccain/Feingold

McCain/Feingold limits the opportunities of average citizens to band together and oppose "approved" politicians and issues.

Any attempt to stifle the free exchange of politic views on the web will guarantee those webbies will go offshore. What, is John McCain or comrade FineGold gonna put us all in jail for saying they are idiots?

Eliminate McCain Feingold and all restraints on free political speech so we can have a greater country.

Die gedanken sind Frei! Senators and don't you forget it!

Not quite...

I believe the so-called "whistle blowing" by Republican FEC Commissioner Bradley Smith is nothing more than pure partisan spin. The issue boils down to whether "in-kind" contributions count under McCain/Feingold-- they do not. So blogging about your favorite candidate is NOT the same thing as donating $20 to her campaign.

That Smith and his Republican colleagues say they can't tell the difference between those two activities screams hyperbole.

Meanwhile, as one earlier poster remarked, the conservative echo chamber is re-branding McCain/Feingold as something that "limits the opportunities of average citizens to band together and oppose 'approved' politicians and issues." That's backwards! McCain/Feingold is about limiting the ability of millionaires to have more say in the political process than you're average citizen.

And while we're on the subject, is anyone else getting tired of Declan's thinly veiled penchant for the libertarian/conservative side of every issue?

[declan00]

One "side" of every issue

This is a column, and it's intended to take a certain tone.

But you're incorrect to say that I'm siding with conservatives. Were you referring to my columns criticizing the expansion of the Patriot Act, criticizing the Bush administration for the Iraq war, criticizing the Bush administration for its deficit spending, criticizing John Ashcroft for his porn crackdown?

Time to buy new reading glasses, I'll wager.

[DeusExMachina]

Finally

Finally, someone outside the standard chicken-little, right-wing
reactionary nut jobs screaming about the end of freedom and
liberty, and the destruction of the world as we know it. There is
NO possible reading of McCain/Feingold that in any way
necessitates the regulation of bloggers, or any other individual's
online speech.
Declan's thinly-veiled cross-connection of points is smoke and
mirrors designed to misinform. The fact that Shays, Meehan,
McCain, and Feingold vehemently opposed an amendment
limiting the scope of the M/F legislation from encompassing the
internet is NOT the same things as saying that they felt that
everything online was suspect, merely that the simple fact that
a message was online would not exempt it. The inability to see
the difference between these two points, and to claim that
Shays, Meehan, McCain, and Feingold making this clear is a sign
of them running for cover, is absurd, illogical, and exactly the
Libertarian (as opposed to libertarian, which Libertarians are
NOT) conservative slant referred to here.
And no, Declan, he is referring to your tendency to knee-jerk
reactionary responses based not on logic or reality, but dogma.
And for the record, being against the expansion of the Patriot
Act, the Iraq war (when exactly DID Congress declare war,
anyway?) or Ashcroft hardly serves as a résumé of even-
handedness. The Republican Party, and conservatives in general,
are not unified, but split on these issues, with the radical
religious right and social conservatives on one side, and the
moderates and others on the opposite. In fact, per se, being
against these things is the only consistent stance for a
conservative, since by definition conservative means preserving
the status quo.
They are hardly a resounding example of even-handedness.

Oh, and BTW, if anyone is backing away from their original
positions, it is you, Declan. In both your articles and private e-
mail to me, you were quite adamant that regulation of bloggers
by the FEC was imminent. As the smoke clears and the picture
resolves itself, and it appears increasingly unlikely that this will
be the case, you increasingly temper the fervor of your
conviction of impending doom. As I said to you in private, just
like Jean Dixon, John Edwards, and Allison Dubois, simply saying
something with conviction and redirecting people's attention
when they start to catch on is not enough to make it so.