Skepticseye.com

. . . but, sadly, not that short. What? The latest screed from Reps. ShayMe purporting to “respond” to the joint letter circulated by Redstate’s Mike Krempasky and Kos. The text of the response is below, with comment as appropriate.

Dear Colleague:

We are writing to correct some misconceptions about our legislation, H.R. 4194, the Internet Anti-Corruption and Free Speech Protection Act of 2005, circulating on the internet.

We share the view that the Internet has great virtue in permitting individuals to engage in robust political discourse for little or no money. But this cannot serve as cover for allowing Washington lobbyists, corporations, labor unions and wealthy individuals to spend huge amounts of soft money in coordination with federal candidates to buy campaign ads on the Internet.

No brain-eating zombies? And this is suppose to scare me? The tiresome repetition of the false claim that prohibited sources could run campaign ads if this exception were law is, well, tiresome. And untrue. So please keep you sentimental cliches about the “virtue” of the Internet to yourselves. You have no credibility so long as you perpetuate these falsehoods. None.

Many have sought to use fear, uncertainty, and doubt to raise concerns that free speech on the internet is in danger. Here are the real facts about the differences between our bill, H.R. 4194, and the soft money loophole bill, H.R. 1606 introduced by Representative Hensarling.

“The soft money loophole bill.” That’s a nice way to launch a neutral and dispassionate comparison of the two measures. Oh, it’s agitprop? Gotcha.

Protecting Speech Online

Most importantly, H.R. 4194 offers the same protection for individuals communicating online as H.R. 1606 - from blogs to podcasts to wikis to technologies not yet even developed.
In both bills, any communication by an individual made on that individual’s website is exempt from the definition of “public communication” in the campaign finance law.

Importantly, 1606 isn’t just about “individuals.” It applies to the activity, not the status of the speaker. Freedom for the one, the small, or the innocuous is not “freedom.”

Soft Money Loophole Under H.R. 1606

Unlike H.R. 1606, our bill would not exempt from the law soft money spent by political parties and by federal candidates in coordination with Washington lobbyists, corporations, labor unions and wealthy individuals, to buy campaign ads on the Internet. We prevent these soft money expenditures for campaign ads on the internet in order to protect both the soft money ban enacted in 2002 and the longstanding ban on corporate and union spending in connection with federal elections. H.R. 1606 would open the door to corruption and the appearance of corruption by allowing Washington lobbyists, corporations, unions and wealthy individuals to coordinate with a federal candidate to spend unlimited soft money to buy campaign ads on the Internet.

This is untrue. To be clear: under 1606, any “expenditure” by a corporation, labor union or other prohibited source would remain - prohibited. Coordinated or not. Citation? 2 USC 441b. Remember, 1606 codified the CURRENT FEC regulation in this area. If its illegal today under the reg, it would be illegal under 1606. What 1606 does is preserve the status quo and keep the Commission (or Shayme) from eroding the law. That’s a modest thing, to be sure, but that’s what it is.

This is a concern shared by reformers as well as the federal district court in Washington that reviewed and invalidated identical language to H.R. 1606 when it was written by the FEC.

. . . becasue it wasn’t clear to the court that the exemption for Internet communications was consistent with the statute and congressional intent. Passage of 1606 would, you know, clarify congressional intent.

(snip) It is important to note that the FEC did not appeal the court’s ruling. If the FEC believed that these findings about the FEC regulation (identical to the language in H.R 1606) were wrong, the Commission would have appealed the court’s ruling, just as it appealed a number of other rulings in the case.

The vote was 3-3 (actually 3-2-1, but the effect was the same). Most of the time, when reformers see a deadlock vote at the FEC, they crow about how indecisive the Commission is. Here, a deadlock is credited with significant meaning. You can’t have it both ways.

Protecting Incorporated Bloggers

In an effort to protect individual bloggers who incorporate for liability purposes, our bill treats such corporations the same as individuals - exempt from the law.

4194 carves out a narrow exception for corporations with the primary purpose of running a web log. That’s it, no other Internet communications or activity are included. This is illusory.

A different concern circulating on the internet is that bloggers who engage in partisan political activities and routinely solicit contributions to candidates of one party are not eligible for the “press exemption” and therefore would not be exempted under our bill. That concern is also false. The question of whether the “press exemption” should be applied has nothing to do with our bill, or how our bill would be applied to an “incorporated blogger.”

But it has EVERYTHING to do with how the FEC, generally speaking, might or might not regulate bloggers. You can’t claim to protect bloggers with your little exception on the one hand, and then waive the question about how other parts of the law would also be applied. As has been pointed out a number of times here and elsewhere, the regulation of “public communications” is but a part of the larger fabric of regulation bloggers and internet journalists could face.

Other concerns being raised regard political group activity online. Some have suggested that Yahoo Groups, or even group blogs, would be required to register as federal political committees. This is untrue. Our bill does not affect the already clear definition of a federal political committee which has been long-established under current law. Even large amounts of spending by individuals for computer equipment and services to communicate on the Internet would not turn such group activity into a political committee. Our bill would not change that result.

What planet are you on? There is no “clear definition” of political committee. There is a statutory definition (a group with contributions or expenditures of $1,000 a year, basically) and a contradictory collection of cases interpreting whether there also must be a “major purpose” to “influence elections.” What’s “major”? What’s “influence”? Any “elections” or just federal ones? Depending upon who you ask (Ed Foley, Scott Thomas, or Brad Smith) and what day it is, the answers will be different. And you’re pleased your “bill will not change that result?”

More Soft Money Under H.R. 1606

One final, and extremely important issue, is that the Hensarling bill would allow state political parties to use unlimited soft money to buy ads on the Internet promoting and attacking federal candidates. Such soft-money funded political party ads were prohibited by the Bipartisan Campaign Act of 2002. By exempting all Internet communications from the definition of “public communications,” the Hensarling bill would permit state political parties again to use unlimited soft money to influence federal elections. Our bill does not allow this use of soft money in federal elections.

I think this is correct, actually. But, who cares? Anything a state or local party would be doing would be subject to their state or local law, and in some jurisdictions those rules are more strict than the federal law. Besides, aren’t parties suppose to be talking about candidates? I happen to think the BCRA approach of victimizing political parties was wrong. You may disagree. That would be an honest disagreement. But think about the consequences of regulating party internet communications like other “public communications” - like requiring parties to allocate their web costs based on the federal/nonfederal content of the site (like they do with mail). When you have dynamic content? Yuck.

I snipped off the very end because it is repetitive, and this post is too long as it is. It is my sincere hope that Members and their staff consider both sides of this question and take this vote seriously.