TCS Daily

An End To 'Everybody's Press'?

By Nick Schulz - June 13, 2005 12:00 AM

Editor's note: The Federal Election Commission (FEC) is currently under court order to consider extending regulation and restriction of political speech outlined by the Bipartisan Campaign Reform Act of 2002 (BCRA, also known as McCain-Feingold). The court order was the result of a lawsuit filed by advocates of regulated speech, including the architects of BCRA, Sens. John McCain and Russ Feingold. Users of the Internet, such as online publications and blogs, so far have enjoyed a broad exemption from the speech restrictions favored by reformers. But the court-ordered rule-making by the FEC could change that. The FEC has asked for comments from the public before a scheduled hearing on the matter that will take place June 28-29 in Washington, D.C.

TCS Editor Nick Schulz interviewed FEC Commissioner Brad Smith about regulation of speech on the Internet and what it might mean for blogs, websites and the future of technology and politics.

NICK SCHULZ: Your colleague, Commissioner Ellen Weintraub, said in a recent interview:

        "I can't speak for my colleagues but I'm not aware of anyone here who views 
        this rule-making as a vehicle for shutting down the right of any individual to 
        use their electronic soapbox to voice their political views."

Now, the architects of campaign finance reform, including Senator John McCain, in recent comments that they filed to the SEC said:

        "...there is no reason to believe that moneyed interests will not attempt to 
        use the Internet to influence politics and policies as they attempt to do with 
        other modes of communication. Indeed there is every reason to expect that
        they will."

It sounds to me like there are plenty of individuals who are blogging or sending e-mails or producing websites who might have reason to be concerned about the extension of the federal limitations on free speech. It sounds like there are folks who want to, in the commissioner's words "shutdown the right of the individuals to use their electronic soapbox to voice their political views." What is your assessment of this?

BRAD SMITH: Well, to say nobody wants to "shutdown" blogs, that's a pretty extreme standard if that's the standard we are using for whether people should be concerned or not. And one of the problems I think with campaign finance law and regulation is that it adds complexity and makes it more difficult for citizens to participate in politics -- it puts legal hurdles in their way.

So it's not necessary that the FEC would be setting this rule-making determined to shut down blogs before bloggers have to get concerned or before people should be concerned about their rights to participate in politics; or before people should be concerned about what effect the regulation might have on what has been a very democratizing medium.

And what this rule making does is it sets the stage. We will have changed the presumption from the idea that the Internet is not regulated to one that it is regulated. And once we have made the presumption that it's going to be regulated, it's only a matter of time before people will find things that they think therefore ought to be regulated.

Politics is a dirty business. Now politicians don't like being criticized. People who lose in political battles don't like to admit that they lost because maybe their ideas weren't good enough or they weren't persuasive enough, or people just don't agree with them. They would like to say, well, those guys must have an unfair advantage that must be regulated. That's the way that the political system works here and we have now set up the presumption that when things come up that people are unhappy about, government should regulate them.

I go back to a First Amendment perspective, that the First Amendment was there for us to keep government out of this. Now we are past the stage in which we can say that the courts will strike down all campaign finance regulation. But we really need to ask ourselves: is there not one area of American political life that can be unregulated? Is it absolutely required to regulate every area? And if there is one area that could be unregulated, one would think it might be the Internet, given that it's one area where the little guy -- the average citizen -- really can get in there and compete with the big, well-financed interests.

It may be that corporations -- or "big money" if you want to call it that -- would find a way to spend money on the Internet. But I think what we see is that it doesn't really matter a whole lot -- they can't dominate the same way they can dominate publications, newspapers, or the ownership of radio and TV. And so I think that we are sort of looking for a problem nobody can really cite; and we are out there looking for a problem and setting up a regulatory regime that I think over the years will only grow.

SCHULZ: When I was preparing for this interview, a number of different website owners and bloggers wrote in to me to say that the law seems to exempt a publisher from speech restrictions, citing the joke that freedom of the press is freedom of the press as long as you own one. If that's not correct maybe you could set me straight on that. But if that is correct then it seems to me that bloggers should be home free, insofar as the blogger is the owner of his or her site. And if that's true, then a blogger should be as free to choose the content that's on his website as a magazine is to choose its editorial content. Would you agree?

SMITH: We are starting to turn the purpose of regulation on its head. Elihu Root argued that we had to prevent the great accumulations of wealth from taking over politics. That's the direction we are heading now. When we think about who is going to be exempt under the press exemption, I think almost everybody would agree that the big corporations are going to be exempt under press exemption. That is to say that the Washington Post website, well, that's probably exempt. What about Slate, which at one time was owned by Microsoft? Well that's going to be exempt. Why? Because Slate kind of looks and it feels like a newspaper. It comes off the web rather than delivered by paper to my door, but it just has that look and feel and has that kind of sense to it. And then people are going to say, what about maybe a blog such as that run by Glenn Reynolds of InstaPundit or something like that? Well maybe that gets the exemption. But after that it's less clear.

Therefore we are saying if you are a big powerful cooperation, we are going to give you a press exemption for your Internet activity, at least if you are a press operation. And as we work down the line we are not going to give you that exemption. As a result you are going to be stifling the activity of the most grassroots, casual type of political action, rather than that of the big press corporation.

It's particularly odd that we would do this in an era in which most of the mainstream press is owned by large corporations. I don't just mean CBS and NBC and so on being owned by other large corporations. Think about things like station ownership. This was a bit of an issue last fall when Sinclair Broadcasting wanted its stations to air a documentary that many considered a lengthy anti-Kerry commercial rather than a real documentary, whatever that is.

So we are going to say to those folks, well, if you had the power to own a press outlet you are okay and your website is probably going to be okay as well because you are a newspaper or a radio station or what have you. But we're going to say to the pajama-clad blogger in his basement that he doesn't get the press exemption? It seems to me that's exactly the person who we want to be encouraging to be more involved in politics, the person who should get the exemption there.

Some people will say, well, if you give the press exemption to all these Internet sites, what would stop corporations from putting up a website to take advantage of the press exemption? To which the answer is, what stops the corporation now from buying a news station or newspaper?

Airlines have magazines and sometimes they have political stories. Wal-Mart and BJs and some of the big wholesale houses publish magazines; lots of the big investment companies like Fidelity and many others publish newsletters and news magazines and these often include commentary that could be deemed supportive of or opposing to candidates and the candidate agendas.

And so is it really such a horrible thing that while those groups, those big corporations, get the press exemption for the kind of things that only a small number of corporations can afford, we would extend the press exemption to something that everybody can afford?

It seems again to have the purpose of the law turned upside down.

SCHULZ: Maybe this question could help illustrate some of the points that you raise. Suppose that one month before an election, there is a wealthy individual who sets up a group blog and in doing so provides hosting services, provides payment for some of the bloggers and a big marketing budget. Now would that be equivalent to starting a newspaper, which is presumably legal? Or would it be more equivalent to running ads within the period of time that you can no longer run ads, which is presumably not legal?

SMITH: What's interesting is that a group blog, if it doesn't have the press exemption, seems to more clearly fall into the statutory definition of "political committee," which is a group of people who are engaged is making expenditures and contributions to political campaigns. And so if you have a group of people blogging, I think it raises even further the possibilities that they could be deemed to be a political committee and then everything they do would be subject to some level of regulation.

We can't view all of this in isolation. The folks who pushed for the rule making are now saying, "Well, of course, we are very moderate and reasonable." But these reformers are also pushing in several other areas for broader regulation and these laws all interact with one another. And if you start to lose protection in other areas, it becomes more and more important that the exemptions you have retained remain strong and robust.

SCHULZ: Let's say there is a blog that is written and hosted offshore, perhaps by a non-resident U.S. citizen, or somebody living here but vacationing in, say, Canada, and they are writing about politics or encouraging people to vote for a candidate. Would that constitute a potential problem if it is financed in a way that somehow violated McCain-Feingold? More importantly, if so, how would that even be enforceable?

SMITH: Well, I think it would. For example, let's suppose we determine that they were violating the law, that the activity, for example, made them a "political committee." Then U.S. citizens who gave them money would have to be careful about how much they gave. That might be one way in which we could enforce it, by looking at the people who are still in the United States. Otherwise on the enforcement side, you are into questions of international law and things like that and I may not be totally equipped to answer.

But I think what this demonstrates, again, is that if you have money you can get around the exemption. You can go set up offshore, but your average person doesn't want to have to go set up offshore. Speech will have gone from being a real cheap thing you can do at home on a PC, with software that is readily available and easy to use to something that seems much more complex. Again this seems to be turning the purpose of the rule on its head.

SCHULZ: What is the qualitative difference if I e-mail 2,000 people and tell them to vote for candidate Smith in the election versus posting a passive message telling 2,000 viewers of my blog the same thing?

SMITH: I don't know how one will actually makes those types of distinctions. Even if it's an e-mail list that one has just compiled from their own correspondence of viewers, I think it takes us back to the question of what are we trying to regulate and why? And then why is it viewed as a problem?

SCHULZ: What do you think is the lightest approach that the FEC could take to the Internet within the scope of the court's decision?

SMITH: We have been forced into a position that there will be some regulation; and that alone will mark a substantial change in the whole disposition towards the Internet. I think that the commission can and should adopt a broad exemption for personal activity on the Internet and also for paid ads to be on the Internet.

We need to make clear that bloggers are press, these are periodicals and people update them regularly; that the first amendment does not only apply to people who are members of the National Press Club, that it is not limited to people who have a little press card in their hat band like some 1930s movie.

The press is everybody; every citizen has a right to publish his views and to promote his views and if the Internet is blurring a distinction between traditional media and just average citizens, I am not sure that's a bad thing. That's a good thing, a democratizing thing, it is exactly the type of thing that the reformers claimed for years to want. They ought to rejoice in it. That they don't is interesting in itself.

SCHULZ: Why is it that the reform advocates are pushing the Internet issue when it doesn't seem that a problem has arisen yet?

SMITH: I think because anything they can't control scares them. And I think that as they are zealots, they are perpetually afraid somebody, somewhere is going to spend some money to influence politics and they think that that is a bad thing. They don't say that, of course. They say they are still very concerned about First Amendment rights and citizens participating in politics and so on. But if you are really looking at what their record is, if you look at what they do, if you look at what they testify before the commission about, what they are afraid of is that people would be participating in politics and in ways that they cannot control. So while there is no demonstrative threat yet, it's just a possibility that this could be a threat that has led them to swing into action.

SCHULZ: Should Americans expect a continued process of micromanaging speech, or do you think that there is potential for there to be an understanding that maybe this excessive regulation is wrong if not in principle, then certainly it is wildly impractical and perhaps we need to rethink some basic premises?

SMITH: Well, I would hope that last proposition may happen. Although I suspect it would take at least one more major effort by Congress to crack down on "loopholes" before people will be really ready to start saying that maybe we are going about this all wrong and maybe we need to go back to recognizing that politics may be messy and dirty and unfair, but that's what makes our society free and our democracy robust and healthy. There's the famous line from Justice Brandeis that "sunlight is the best disinfectant." Letting in the sun involves opening the doors and windows and the dust blows in and the wind blows things around and we recognize that, in the end, this is all for the good.

But there are a lot of people in the reform community who say very openly that reform is never done; it's an ongoing program that will never end because people would try to figure out ways to get around the reform and therefore we will need more reform to stop them from getting around it. People figure out ways to comply with the law and they describe that as a "loophole" or a "problem" and so now this activity must be closed down as well. The Internet is a classic example.

But maybe it doesn't need to be closed down. Maybe this is a real good thing for society. Maybe we need to say to the reformers that you have actually achieved your goal -- you have come up with the means by which average citizens can participate on the same turf as great big corporations. But they still want to shut it down because people might spend money and that gets them upset. So I am not optimistic.

SCHULZ: Glenn Reynolds wrote in a commentary that he sent to the FEC that

"I can imagine few more effective ways of diminishing public regard for the political process than declaring unfettered political speech the domain of a narrow guild of favored professionals."

With the blossoming of citizen-journalism and blogs and the ability of individuals to make genuine contributions in real time to the political process, are we running the risk of the political process trampling on this?

SMITH: We are. And again, oddly, with the type of regulation in which the more money you have the more free you will be to participate. A wealthy guy like George Soros, who can spend his millions, or Rupert Murdoch who can own a network, will have heightened influence. Your average small business doesn't have that possibility. They can, however, go onto the Internet. But now we are going to say, "No, you can't take it on the Internet either." Systematically we are working again exactly backwards.

SCHULZ: Commissioner thank you so much for talking to us.

SMITH: Thank you.

TCS would like to thank Arnold Kling, Ryan Sager, Orrin Judd, Pejman Yousefzadeh, and several other members of the press who happen to have blogs for their suggested questions.


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