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This week, the Federal Election Commission released a document called “Notice of Proposed Rulemaking Governing Activity on the Internet” (read it here). It’s heavy reading, but the gist of it is clear: the federal government wants to limit political speech on the internet.
What it Says
The Federal Election Commission wants to set up a series of specific rules surrounding who can publish what on the internet. The proposal basically says that any website that supports a candidate for federal election—that is, linking to a candidate’s web site or posting consistently favorable or unfavorable information about a particular candidate—would be considered to have made an in-kind contribution to that candidate’s campaign and would have to comply with campaign contribution and political advertising laws.
That means, of course, that bloggers (who, for the most part, write on whims anyway—read a few blogs and see what I mean) would have to place FEC notices on their web pages, file reports with the FEC, and notify the campaigns of their “contributions”.
There are a few exceptions, though. First of all, individuals who are uncompensated (that is, they don’t charge money, take donations, or accept advertising) and who don’t spend more than a “nominal fee” in running their sites, are exempt from the regulations.
Secondly, there is a media exception, which is to be given out by the FEC—a sort of “license” for web sites to cover political issues. There are no clear guidelines laid out for who, exactly, could get one of these—it seems to pretty much be at the whim of the Federal Election Commissioners.
What People Have Said about It
Plenty of Pixels have been spilled over this issue around the internet.
Von at Obsidian Wings says “This is a gross and, frankly, un-American attempt to regulate political speech.”
Mike Krempasky at RedState.org notes that “the media exception [for blogs] will pretty much be extended on a case-by-case basis. Who decides? Why, the government of course. Welcome to regulatory compliance hell.”
Markos Moulitsas (of Daily Kos fame) points out that “Not every blog is run by amateurs, and whether they are or not shouldn’t have any bearing on their ability to excercise their First Amendment rights.”
Patterico has so far gotten over a hundred bloggers to take his pledge, saying that “If the FEC makes rules that limit my First Amendment right to express my opinion on core political issues, I will not obey those rules.”
Jeff Harrell’s explains why he signed on to Patterico’s pledge: “Strong language should be reserved for serious circumstances. Well, nobody’s been jailed; the speech police are not knocking on people’s doors. These circumstances aren’t that serious. But they’re serious enough. Serious enough to warrant making a decision.” In another post, he takes his claim beyond the internet: “People have opinions about everything, including politics. People express [political] opinions in various ways: water-cooler chit-chat, telephone calls to family members, personal Web sites on the Internet. The government has no business regulating personal expressions of opinion.”
Eric Alterman of the “Center for American Progress” says that “the last thing the American media needs is more regulation by a few self-appointed moral arbiters who don’t even seem to understand the technology – or the content – they appear intent on banning.”
Additionally, over 3000 people (myself included) have signed on to the Online Coalition, which officially opposes the regulation.
What it Could have Said
In the lead-up to this issue, the FEC commissioners were quick to tell people to “chill out,” and that the FEC had no intention of stifling political speech. RedState has a leaked copy of the original draft of the rule that proves them wrong.
Judging by this initial proposal, if the Online Coalition had not put pressure on the FEC, we would have been stuck with a rule that would have restricted any site that is accessible to the general public. The only sites that would have been immune would have been sites with less that 500 viewers per month (RIC, which really isn’t even a blip on the radar to most of the ‘net, had about 3 times that during the last election season) or sites which are both password protected and do not provide passwords (for free or for sale) to the public.
That is to say, anybody who is being listened to is being forbidden from speaking freely. That proposal shows you what the FEC’s intentions are, and they are not acceptable.
Why This is Bad
I’m not even pretending to do an objective analysis here—it would be a waste of time. This proposal is so obviously backward that the best I can manage is an argument against it.
People, with very few exceptions, don’t run web sites for a living. There’s just not a whole lot of money to be made in giving stuff away for free on the internet. The people (myself included) that the FEC is looking at regulating are not institutions, but people with something to say and a little bit of free time.
When people are doing something for free in their spare time, what little time that they are able to devote to it is at a premium. When the FEC adds a bunch of burdensome regulations to the process, there are a significant number of people who simply won’t bother. The end result is less speech, and ultimately, fewer viewpoints are expressed, even among sites that could qualify for FEC exemptions. This is bad for us, it is bad for our country, and it is bad for democracy.
The exceptions do little to help. First, the FEC seems to want to give them out with no guidelines or rules as to who should get them. From a free speech perspective, allowing a government agency to arbitrarily decide who is allowed to express their viewpoints and who is not is abominable. Furthermore, few blogs have the necessary staff to wade through the paperwork for the necessary permits or exceptions that the FEC has offered to issue.
Several blogs, especially those like RunningInCircles.com that are built around community participation, involve the efforts of more that one author, and thus are not eligible for volunteer exemptions at all. Still more use advertisements or ask for donations to defray the hosting costs (though few ever turn a profit), and are also not eligible for the exemptions.
Perhaps most importantly, it is bad for our country. As I mentioned earlier, the main reason that web sites exist at all is because the internet is a medium where engaged people can speak freely and openly. Any attempt by the US government to change that will result in fewer Americans expressing themselves online.
But the internet is a global medium, and as a whole it is beyond the jurisdiction of any national government. The world won’t stop speaking. And if global bloggers continue to speak freely while American bloggers are stifled, the net result (no pun intended) will be to disproportionately reduce the voice of American citizens in this medium. That hurts our nation and, by extension, every one of us.
Ultimately, this is a sign that the Federal Election Commission, as it exists today, is fundamentally incompatible with the notion of political freedom. Before the next election cycle, it needs to go the way of the Alien and Sedition Acts and fade into history as another attempt by the government to overstep its bounds.
What We Can Do
While I oppose the law, I cannot, at this point, agree with Patterico’s “I will not obey those rules” statement. The proposal is still just that—a proposal. The FEC is accepting feedback on it (which I and MANY others have sent), and judging from the reactions so far, it looks like the reaction will be solidly negative. This could possibly convince the bureaucrats to stay away from our internet.
If the law does, in fact, pass, I will be analyzing it very closely and making whatever changes need to be made to RunningInCircles.com to make sure that any concievable article by any author would be within the bounds of the FEC rules.
Only if the law passes in such a way that it is not possible to achieve that goal, then it might be time to join the long lists of people who are laying out in the open their pledge to intellectual dissent.
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