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March 04, 2005

Extremely Easy for Blogs to Violate BCRA

I’ve been quite interested in this new development of the application of the McCain-Feingold Act and how it will apply to the Internet, but I couldn’t find a lot of details as to how this happened. So here it is:

On September 18th, 2004, the United States District Court released a decision written by Judge Colleen Kollar-Kotelly. The complaint in this case was brought by Christopher Shays and Martin Meehan, who are members of the House, against the FEC. Their complaints regarded the FEC’s regulations that implemented BCRA (the Bipartisan Campaign Reform Act). The part of the decision that addresses the Internet runs from pages 48-57.

In BCRA, the regulations were defined to apply to “a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.” The FEC’s regulations were then defined to apply to “a communication by means of any broadcast, cable or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing or telephone bank to the general public, or any other form of general public political advertising. The term public communication shall not include communications over the Internet.“ Basically it was the same language, but exempted the Internet.

The decision said: “Congress, by the plain terms of the statute, clearly intended for the term “public communication” to capture all forms of “general public political advertising” and the FEC has provided no legislative history that persuades the Court to ignore the plain meaning of the statute.” (Read the whole thing for details if you’re interested.)

According to this interview with Bradley Smith, who is a member of the six-member Federal Election Commission, he and the other two Republican commissioners wanted to appeal the decision, but the three Democrats did not want to. Now the FEC is in the process of modifying the regulations to apply to the Internet.

Part of the issue is that in 2004 people were able to purchase Internet advertising for a campaign and it was not counted as a contribution, which would not be the case for television or newspaper advertising, and therefore there were no limitations on it. I can certainly see how changing that would be consistent with BCRA (although I will say now that I think BCRA is unconstitutional in this regard.)

However, Bradley Smith says:

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.

Certainly a lot of bloggers are very much out front. Do we give bloggers the press exemption? If we don't give bloggers the press exemption, we have the question of, do we extend this to online-only journals like CNET?
…
Corporations aren't allowed to donate to campaigns. Suppose a corporation devotes 20 minutes of a secretary's time and $30 in postage to sending out letters for an executive. As a result, the campaign raises $35,000. Do we value the violation on the amount of corporate resources actually spent, maybe $40, or the $35,000 actually raised? The commission has usually taken the view that we value it by the amount raised. It's still going to be difficult to value the link, but the value of the link will go up very quickly.

It seems, then, that this would be pretty easy to measure the value of a link on a blog, in fact. Let’s refer to Michelle Malkin’s recent article on site statistics, and assume that her numbers are right. Assume then, that Instapundit gets about 25,000 hits a day, equal to 175,000 a week. Let’s also assume that a link to a political campaign would generate 4,000 hits, and that on average Instapundit premium advertisers get about 2% of Instapundit's traffic. This would extrapolate to 3500 hits for advertising, and 4000 hits for a link in the content. A week of premium advertising costs $2000. That would mean that Instapundit linking to a political campaign would be worth about $2285. Watch out Instapundit, you’re already above the limit!

What can we do? Contact the FEC commission and ask them to appeal the decision and/or attempt to write the regulations to prevent any (more) trampling of the first amendment. Contact your representatives in Congress and ask them to exclude the Internet themselves. Above all, let’s talk about this more. The comments of some people that this would never happen are, unfortunately, not particularly reassuring.

Posted by illuminaria at March 4, 2005 05:28 PM

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