Political Blogs Unlikely to Face Regulation, Speakers Say

September 26, 2005
Allison Hayward, former counsel to FEC Commissioner Bradley Smith

The odds are slim that Web sites that run political commentary — sometimes called blogs as a shortened form of what were first known as Web logs — will face regulation by the Federal Election Commission under the terms of 1997 campaign finance legislation commonly referred to as McCain-Feingold. That's either because one blogger, Michael Krempasky, founder of OnlineCoalition.com and Redstate.org, published the draft of a rule circulating among FEC staff, exposing what he suspected was an effort that would suppress political speech, or because the rule never had a chance of making it out of the FEC in the first place, according to Allison Hayward, former counsel to FEC Commissioner Bradley Smith. Krempasky and Howard discussed the subject, billed as "Blogs v. FEC," at a talk sponsored by the Federalist Society Sept 19.

Michael Krempasky, founder of OnlineCoalition.com and Redstate.org

The problem potentially arises out of a vague definition of the term "public communication" in McCain — Feingold, Hayward explained. "The statute is very vague: 'anything of value used to influence an election,'" she said. "The question is when is speech an expenditure and when is it a contribution?"

Congress members did not anticipate the explosion of blogs in campaigning and thought instead that the law only had to address traditional state party behavior and so-called "soft money" ads. Some members of the House of Representatives raised questions about how the finance reforms would apply to the Internet, she noted, but they were not answered in the legislation.

Soon after the law passed, Joe Trippi, campaign manager for 2003 Democratic hopeful Howard Dean, demonstrated that donation appeals over the Internet could reap fabulous returns with virtually no expense: $40 million in small contributions was an unheard-of success, Krempasky noted, and it got everyone's attention.

Subsequently, in an article titled "The Coming Crackdown on Bloggers," FEC Commissioner Smith observed that a rule was necessary to clarify how much Web site components, such as the number of visits or pages, were worth in assessing contributions and expenditures according to the law. Alerted by Krempasky, bloggers across the ideological spectrum rushed like Minutemen to their keyboards. Some 3,600 promptly signed an open letter whose message was "Hands off my Internet!," he said.

The draft of the rule "that Redstate somehow got a hold of," Hayward said with a suspicious eye cocked at Krempasky, "was an early form not intended for public issue." The six-member commission has three Republican and three Democratic members and there were never going to be four votes for that draft, she said confidently. FEC rule drafters wanted to avoid any application of it to a party Web site's political content, she added.

The larger question is whether blogs fall under the law's press exemption, which specifically includes "periodicals," Krempasky said. "It should be a no-brainer that bloggers are news media," he said.

"This terrifies us because we want to be effective. We've had to raise $2,000 to pay for lawyers. What if you had to raise $2,000 to publish your blog tomorrow? This is a hobby, not my job. There are lots of filing obligations once you're considered a political committee," he added. "You can't take in any foreign dollars, any union dollars or any corporate dollars."

"It's not about the 40 cents the link costs," explained Hayward. "It's about what the 40 cents gets you."

"Regulators are deathly afraid of a broad extension of the press exemption," Krempasky asserted. "Regulators would say, how do you define who or what a blogger is? Could Halliburton be a blogger?"

"Blogs are not differently opinionated than other forms of journalism," Hayward acknowledged, noting that the Philadelphia Inquirer raised money for John Kerry's presidential campaign and that newspapers originated with political parties.

"No member of Congress would go on record saying they want to regulate blogs," Krempansky stated, adding that inserting the wording "this shall not apply to the Internet" in the law's section on public communication is all the fix that's needed. "That would be an affirmative action on freedom."

"Today we have a lot of answered questions," Hayward agreed.

"If the press exemption is not granted, someone will sue," Krempasky predicted, asking the audience to imagine the reaction of FEC lawyers to the filing of some 3,000 lawsuits by irate bloggers.

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