Blogging & Campaign Finance Law: A Simple (Probably Too Simple!) Solution

by on May 3, 2005 · 2 comments

[[cross-posted from the PFF blog]]

I want to say a few words about this debate over the application of campaign finance regulations to the Internet and Web blogs in particular, but let me just start by admitting that I’m not an expert on campaign finance law. In fact, I am utterly mystified by this entire body of law, not only in terms of its sheer complexity, but also in terms of what it sometimes hopes to accomplish.

I understand that (at least in theory) the laws are suppose to eliminate “corruption” from our political process. But is it just me or is it not that case that campaign finance laws continue to get more complicated while the political process remains just about as “corrupt” as it has always been?

Well, maybe I’m just a cynic about the political process in general. So, let me instead just focus on all this from the perspective of a guy who cares about new media. The current batch of campaign finance regulations is really geared toward broadcasting and broadcast television in particular. But, as of late, the folks down at the Federal Election Commission (FEC) have discovered this thing called the Internet and this new craze called blogging just might have a little impact on the future of media in this country and, therefore, by extension, our political process.

It wasn’t surprisingly, therefore, when the FEC initiated an investigation into the impact of the Net and blogging on campaign finance law and started asking how the law might need to be changed to accommodate our new media marketplace realities.

Needless to say, that sent a collective shudder down the spines of everyone in the blogosphere. And with good reason: Why in the world would we want to impose heavy-handed, broadcast-era speech controls on the most dynamic, democratic, egalitarian medium that had ever been devised? The whole theory behind much of campaign finance law is that tight controls on electioneering communications are needed because of the power of broadcasting in our republic. Specifically, they feared that absent regulation, a handful of interests could buy up all the advertising time on broadcast TV or radio, or unduly influence many programs on the air. So, we ended up with tight spending limits, myriad disclosure requirements, and a number of other regulations on political speech, all in the name of curbing “corruption.”

But does any of this make any sense in the Internet era? Think about it, is there really any chance that any individual, political party, or special interest group could ever buy up all the ad time on the Net? Of course not. They couldn’t even buy up one-tenth of 1 percent of it all.

But the more important question is this: Could any individual, political party, or special interest group unduly influence the election process by paying bloggers or other website operators to write favorable things about a specific candidate or issue, especially without the public’s knowledge of that activity? I’m skeptical even that could happen. In our increasingly crowded blogosphere with its cacophony of voices, no one website or blog dominates the way a broadcaster might have dominated in a community in the past. After all, the “community” we’re talking about for the Internet is the entire globe! It would be pretty tough to “unduly influence” everyone on the planet when they have millions of other choices at their disposal. Moreover, even if some particularly popular blogs were being paid to drum up support for a given candidate, it’s very likely that others would eventually catch on and start asking them about their connections to a candidate, or even do some detective work and figure out who was really behind the effort. Just look at what the bloggers did to Dan Rather and CBS News and then ask yourself how long it will take a pack of them to get to the bottom of who controls various political websites that refuse to disclose their benefactor(s)!

Still, some will argue that at least some minimal disclosure requirements are needed to keep people honest and let everyone know who is funding a specific outlet. I suppose I can live with some minimal disclosure requirements, but that’s it. And, importantly, let’s place those requirements on the people who give the money instead of the websites who receive it. Those who write the big checks already have to file reports at the FEC, so they can disclose that info as part of their typical filing process. Let’s not place onerous filing burdens on bloggers or other website operators simply because somebody might have tossed a few bucks in their tip jar.

Luckily, as Brian Faler reports in today’s Washington Post, the FEC exercised a great deal of restraint in its initial decision on this front. Although I’m over-simplifying, the FEC basically said they are going to continue to exempt the Net and blogging from most of their campaign finance regs. Here’s one vote for keeping things that way.

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