Will the FEC Ban Political Blogging?

Declan McCullagh interviews Federal Election Commissioner Bradley Smith on CNET, and Smith reveals that his FEC colleagues are ready to regulate the Internet by the same standards they currently regulate TV and radio. The effect, should the FEC succeed in doing so, will be to shut down political bloggers and threaten punishment for anyone who forwards information about a political candidate to a list of email recipients.

Here's how McCullagh -- called by liberal commentator Doug Ireland "an indefatigable and perspicacious" reporter -- summarizes Smith's remarks:

Bradley Smith says that the freewheeling days of political blogging and online punditry are over.

In just a few months, he warns, bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's press release to a mailing list, depending on the details, could be punished by fines.

Smith should know. He's one of the six commissioners at the Federal Election Commission, which is beginning the perilous process of extending a controversial 2002 campaign finance law to the Internet.

Smith, the author of Unfree Speech: The Folly of Campaign Finance Reform, tells McCullagh, in response to the question, "So if you're using text that the campaign sends you, and you're reproducing it on your blog or forwarding it to a mailing list, you could be in trouble?":

Yes. In fact, the regulations are very specific that reproducing a campaign's material is a reproduction for purpose of triggering the law. That'll count as an expenditure that counts against campaign finance law.

This is an incredible thicket. If someone else doesn't take action, for instance in Congress, we're running a real possibility of serious Internet regulation. It's going to be bizarre.

Smith also notes:

It's going to be a battle, and if nobody in Congress is willing to stand up and say, "Keep your hands off of this, and we'll change the statute to make it clear," then I think grassroots Internet activity is in danger. The impact would affect e-mail lists, especially if there's any sense that they're done in coordination with the campaign. If I forward something from the campaign to my personal list of several hundred people, which is a great grassroots activity, that's what we're talking about having to look at.

Senators McCain and Feingold have argued that we have to regulate the Internet, that we have to regulate e-mail. They sued us in court over this and they won.

This is a situation that deserves vigilant observation. The greatest mistake of George W. Bush as president has been his refusal to veto the McCain-Feingold campaign finance law as unconstitutional regulation of speech. Because Bush has no spine, the Supreme Court was later able to rule, against all logic and the plain language of the Constitution, that McCain-Feingold is somehow permissible despite the First Amendment.

As Ward Churchill might say, the chickens are coming home to roost.

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