Marginal Utility

by Tom Bozzo

Rep. Baldwin was among the "nays" who managed at least temporarily to scuttle H.R. 1606, a measure that would have excluded internet communications from regulation under the Federal Election Campaign Act. Baldwin's vote drew negative attention locally from Jim Zellmer, who called the action a vote "against internet free speech," and Baldwin's explanation drew front page attention at Daily Kos (which seemed to have slammed the Isthmus website's server(s) yesterday). I think Tammy is getting a bum rap.

The core of Baldwin's explanation is that H.R. 1606 "purports to fix a problem that doesn't exist, while opening up huge loopholes that could allow corporations, unions, and soft money to again re-enter the political process via the internet."

I don't know that corporations, unions, and soft money ever leftthe political process, but this is otherwise reasonable. Advocates of H.R. 1606 make fundamentally backward-looking arguments in favor of non-regulation. I find this somewhat naive, as the internet is nondecreasing in importance as a communications medium; to offer everyone free reign in this (and only this) medium is not a problem-free forward-looking regulatory approach. (Obviously, I'm coming at this from the perspective that free speech rights may reasonably be abrogated in limited ways to try to limit the corrosive influence of money in politics.)

H.R. 1606 would indeed provide a blanket exclusion for all internet communications. Here is its substantive text:

Paragraph (22) of section 301 of the Federal Election Campaign Act of 1971 (2 U.S.C. 431(22)) is amended by adding at the end the following new sentence: `Such term shall not include communications over the Internet.'.

And here is 2 USC 431(22):

Public communication.— The term “public communication” means a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.

In context, it seems clear that this provision goes well beyond the rights of ordinary citizens in pajamas to write blog posts along the lines of "vote for Congressperson Doe." (*) This is even more obvious when you consider the opprobrium directed to the Shays-Meehan alternative, H.R. 4194, which proposes this as an alternative:

Paragraph (22) of section 301 of the Federal Election Campaign Act of 1971 (2 U.S.C. 431(22)) is amended by adding at the end the following: `Such term shall not include any communication made over the Internet, other than a communication placed on another person's website for a fee, a communication made by any person described in section 316 (other than a corporation described in such section whose principal purpose is operating a web log), a communication made by a State, district, or local committee of a political party described in section 323(b), or a communication made by any political committee.'.

My imagination must be underactive as in my admittedly lay reading, this would seem to exclude any unpaid blogging by private individuals as well as by commercial blogging entities such as TPMCafe. In short, the world would not end were H.R. 4194 to become law. Certainly I would face no jeopardy from indulging my occasional impulse to beat up on John Gard.

Now, Kos diarist Adam B makes a more than reasonable point that it would be worthwhile to include the internets somehow in 2 USC 431(9)(B)(i), which prevents news and editorial commentary in conventional media from being construed as in-kind campaign contributions:

(9)(B) The term “expenditure” does not include—
(i) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate;

I would encourage Rep. Baldwin to support, if not to assist in drafting, such a provision, but I'd see it as a complement rather than a substitute for something like H.R. 4194.

Addendum: In repsonse to a comment from Mike Krempasky, I'll clarify that I actually agree with the bipartisan group of top political bloggers that the attempt to carve out a blog exception from 441b restrictions is the main problem with 4194, as it could be construed as putting some types of blogs and blog-like sites in statutory or regulatory limbo — though the term "web log" should be construed broadly by the FEC if it were in the position of implementing regs based on 4194. (I still don't think that 1606's blanket exemption for all internet communications is the ideal solution to the problem.)

Since I want to see the press exemption extended to appropriate internet outlets in addition to 4194-like language that ensures that paid internet communications aren't totally beyond regulatory reach, my bottom line position isn't that far off that of the top political bloggers as expressed in this letter. (**)


(*) Small-time bloggers would be exempted by provisions permitting unregulated small in-kind contributions, as well as unlimited volunteering of one's time.

(**) The main nit I'd pick with the letter is that some of the complaints expressed about language used by Shays and Meehan in response to an earlier blogger letter aren't very well founded in the 4194 language. The concern about the use of blog hosting services, for instance, is not invalid in the abstract, but what clearly matters for 4194 is not the hosting arrangement but rather whether a communication is a paid political message.