The blogosphere is all atwitter over an interview Bradley Smith gave with CNet. Mr. Smith is, you see, on the Federal Election Commission, and had this to say about the effect of campaign finance reform on blogging:
The judge’s decision is in no way limited to ads. She says that any coordinated activity over the Internet would need to be regulated, as a minimum. The problem with coordinated activity over the Internet is that it will strike, as a minimum, Internet reporting services.
They’re exempt from regulation only because of the press exemption. But people have been arguing that the Internet doesn’t fit under the press exemption. It becomes a really complex issue that would strike deep into the heart of the Internet and the bloggers who are writing out there today.
Read this post by Michael Totten, and the comments, to get a feel for the emotions in play.
The basic problem is this: the government is beginning to claim both right and duty to limit people’s ability to speak about political candidates and issues. This was a direct and foreseen consequence of McCain-Feingold when passed: if the government regulates what you can spend money on, it also regulates “imputed money”, and that means it regulates everything. The first amendment is, and has been since this law was passed, effectively dead as a legal issue.
But there’s something everyone’s missing: the law is not definitive in the US. Neither common law, nor statute, nor any act of government or court can long stand against the one thing that supersedes them all: the consent of the governed. I – and I hope every other blogger – will ignore government proclamations limiting my ability to link to campaign sites, to require that I disclose anything about where I spend my money (beyond what is necessary for income tax reporting), and so forth. If I am on a jury trying a person for “illegal contributions” that seem to me to be free speech, I will vote to acquit regardless of the content of the law (I refuse to uphold a law I believe unconstitutional). I will not in any way cooperate with this travesty, nor will I seek to obtain some “press exemption” or accreditation that would give me rights beyond those of my fellow citizens.
If we all take this stand, the government will be unable to enforce this abrogation of the Constitution, and may learn a little humility about other abrogations in the process. If not, well, bend over and kiss Liberty goodbye.
UPDATE (4/5): Francis Porretto posted on the same topic, starting from the point that Republicans are going over the edge on expression (and he’s right) and ending at the same place I did.
It becomes clearer every day that McCain/Finegold is the equivalent of amputating a foot to treat an ingrown toenail.
One of the things that really bugs me about this is the tendency to run government action over a cliff. Historically, the problem we are facing now started with Watergate. In the aftermath of that scandal, Congress passed laws controlling how campaigns are financed. As far as I can tell, this was an attempt by the (then dominant) Democrats to rig the system in their favor while they could. (That’s not a partisan judgment; the Republicans have tried the same thing in different ways.)
OK, so having put that law in place, the first thing everyone realized is that – gasp! – there are ways around it. Parts of the original law were struck down, and parts were upheld, and the resulting mess was worse than what came before. Rather than rethinking the problem, removing the broken law, and deciding if there was a real problem to be solved in the first place, Congress (really, the Democrats again) decided to add all kinds of superstructure to regulate the loop holes. But of course, this was impossible, because this (by now Frankensteinian) law was so complex and riddled with exceptions and cases that any attempt to plug the holes just opened more holes.
Now we come to McCain-Feingold. This was an attempt (again, mostly by Democrats) to once again fix the problem, this time by being way, way more intrusive. To the point that the bill actually regulates political speech explicitly, as well as the funding of campaigns. And the Supreme Court – indefensibly – upheld this! So now what is happening is that McCain-Feingold has been found to have a loop hole (big surprise!), and the solution must be, wait for it, MORE government regulation of speech.
The reality is that there are two principles clashing here: freedom of political expression and abhorrence of corruption. What is happening is that in the name of eliminating corruption, freedom of political expression is getting thrown completely out. While I tend to think corruption needs to be stamped out, I’m no more willing to give up my freedom to speak to attain that end, than I am willing to give up my right to a jury trial to ensure that crime is eliminated. In other words, I’d rather have small injustices that I dislike than large injustices that I cannot tolerate.
The government appears to feel differently.