Potter’s Ball of Confusion
Trevor Potter, the urbane and sophisticated majordomo at the Campaign Legal Center, has written a confusing and misleading op-ed for Roll Call — a publication, readers will know, not too concerned about the particulars of campaign finance law. Here’s the bulk of the thing, with some comments interspersed:
Almost everyone agrees that the Internet has been a tremendous force for good in American politics. So why would an unholy alliance of the government and campaign-finance reformers be trying to stamp out online political activity beneath their jackbooted heels, as many claim is now occurring?
Perhaps the “many” (who?) are worried about the “almost.”
(snip) Given the near-universal agreement, it’s worth asking why so many insidious forces appear to be working so hard to impose harsh new regulations cracking down on Internet political activity. The answer, of course, is that they aren’t. Not a single person I know of is interested in limiting online political discourse by Web loggers or other individual citizens.
Since you readers are very smart, I don’t need to point out the telling modifiers in that sentence. “Web loggers (”I’m a lumberjack and I’m OK!”) and other individual citizens. Not group blogs, which as you readers know could be considered “political committees” and not incorporated bloggers, which could be regulated as corporations and barred from making expenditures or in-kind contributions. So far, we have a modest endorsement of the liberties of some internet activists. Not impressed? Let’s read on:
But an amalgam of the usual reform opponents — corporations, unions, party operatives and lawyers — is once again using scare tactics to claim that the government is out to squash political speech on the Internet. You may remember these scaremongers . . .
Don’t have an argument? Attack character. As a lawyer, I’m sunk in the mire too, I guess, with the corporations and operatives.
These reform opponents presumably believe it would serve their interests if the Internet became an outlet for the same soft money that virtually drowned out the modest contributions of average citizens in the 1980s and 1990s, and that Congress banned in 2002. So they are trying to argue that a movement is afoot to “regulate grass-roots activity” in order to stop any regulation of the way state parties, corporations and unions finance federal political activities that take place online. If they are successful, they will have opened an Internet loophole through which soft money can once again flow freely.
Not exactly. If the Hensarling bill is successful, then the activities that are regulated as “public communications” in BCRA are exempted if done on the Internet. Basically, the authors of BCRA didn’t like the way the express advocacy standard made it hard to regulate issue ads done by parties or the money used to pay for them, and created extra hoops for “public communications” - a term that shows up in the party committee, coordination and allocation contexts but not elsewhere. Even with the Hensarling bill’s exemption, corporations and unions would still be unable to make express advocacy “expenditures” or in kind contributions. It would have been more accurate, and better keeping with the rhetoric of the piece, to say “flow almost freely” . . .
… Our country has an almost century-long commitment, reaffirmed when the Supreme Court upheld BCRA, that federal political activity should be funded only by relatively small, limited contributions by individuals.
That’s just not true. We have a century-long record of barring corporations from making direct contributions to candidates, which for most of that history wasn’t enforced with any rigor. Even today, “federal political activity” by unions to their members, and by corporations to their shareholders and restricted class of employees, and the administrative suppport for the PACs of both kind of entities, can be funded however the corporations or unions see fit. And then there’s the states, and nonfederal accounts of political committees. The corporate and labor “ban” is porous indeed.
When corporations, labor unions and wealthy individuals make unlimited contributions, those checks are almost always about buying influence, which creates real and perceived corruption in our politics.
It’s a shame that the States of Virginia and Utah, with their relatively liberal rules on this kind of activity, are such a cesspool of corruption. Perhaps they could draw inportant lessons from the more regulatory jurisdictions of, say, New Jersey? Rhode Island?
(snip) In fact, the campaign-finance laws should not, and do not, apply to individuals engaged in grass-roots advocacy, including bloggers and online journalists. The FEC is now considering proposed rules that would affirm that principle. Under those rules, individual bloggers communicating on their Web sites would be exempt from the normal campaign-finance rules governing political contributions and expenditures. And legitimate online news sources should, and will, be subject to the “press exemption” that relieves media organizations and activities from campaign finance laws, too.
You observe the modifiers - “individuals”… “legitimate online news sources”… Readers will know that the problem with the volunteer exemptions in the law is that they only apply to individuals using their own computers and other facilities. So the press exemption is the one that most adequately protects groups and incorporated bloggers (as well as anonymous bloggers). So - Is Instapundit a “legitimate on-line news source?” How about Powerline? How about me? If I decide I want to get real political, do I have to stop posting pictures of my kids to be protected?
Put simply, the Internet works, for citizen activists, for officeholders, for candidates, and for those who care about campaign finance reform. The only serious threat to the new medium is the very real possibility that it will be perverted by Congress into yet another playground for special interest soft money, at the voters’ great expense.
Well, that’s that, then. Persuaded? Comments enabled.
