Promoted from the diaries by Caleb
Oh my little Congress critters, we have been naughty, now haven't we?
I'm really not sure I should continue this post, as it may or may not be exempt from the newest regulations allowing the
Gestapo KGB federal government to break down the door to my apartment and arrest me for subversive behavior. (God forbid they see my twitter feed—I'll be following Justin Bieber's 647,832 daily updates from the confines of a lovely prison cell.)
Okay, so it's not that bad ... yet. But the language in this DISCLOSE Act (here's the short and dirty version) does present ambiguity with respect to those of us floating around in the blogosphere. In a nutshell, the DISCLOSE Act is a reactionary pile of garbage born out of leftist panic over Citizens United v. Federal Election Commission, in which the SCOTUS held that the government cannot ban political expenditures by companies, nonprofit groups, and labor unions. (It's a great opinion. Read it here .) What the Act does is require disclosure of corporate and union political speech; however, the Act also includes exemptions for:
"a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication…"
This language is either embarrassingly sloppy, or endearingly sneaky, considering Justice Kennedy explicitly stated in the majority opinion that media outlets are not to be given deferential treatment. Whoops!
I'll admit, the blogger/reluctant activist in me wants nothing more than to swoop down and joyfully wipe the floor with the drafters of the DISCLOSE Act. The law student in me wants to do the same (sloppily-written legislation ruins lives...and exam grades), but from a more objective standpoint ... I'll compromise and do both.
The B+ argument in favor of a blogger exemption is simply that the clear purpose of this legislation is to exempt media outlets in general, and to protect (my bubble wrap is so comfortable) "news stor[ies], commentar[ies], or editorial[s]" put out by those media outlets. After all, most Congressmen, being old and white, are still "out of touch" and "behind the times" when it comes to understanding my obsessive tweetbooking to my RedState blog.
This argument, however, is rather naïve in its subtleties, because a more dishonest and slanted reading of the legislation opens a million opportunities for the enemies of free political speech to dig their foxholes and start taking pot shots at bloggers. A blog isn't a traditional newspaper or magazine; and for that matter, how are we going to define a "periodical publication?" In addition, there's no specific exemption for online media. Poke, poke, poke. No legislation is perfect, but this certainly leaves something to be desired, considering people like Caleb Howe and Erick Erickson write pieces that rear their heads in the nightmares of progressives everywhere - and wouldn't those progressives in Congress just love to do their loyal citizen activists a favor by permanently silencing the growing conservative presence in traditional and non-traditional media!?
The Wall Street Journal had a great piece about this, written by a few former FEC commissioners who actually filed an amicus brief supporting Citizen's United. In part, they say:
Perhaps the most striking thing about the Disclose Act is that, while the Supreme Court overturned limits on spending by both corporations and unions, Disclose seeks to reimpose them only on corporations.
The meaning of this little blurb embodies the crux of all shady legislation: rather than respecting the decision of the Supreme Court, Congress is trying to do indirectly that which has been expressly forbidden. This is the equivalent of a small child, knowing he is forbidden to touch a piece of candy, reaching out and touching that candy with his tongue, and then complaining that he thought "touch" meant "touch with the hands." It's dishonest, but it works often enough to make dishonest politicians comfortable with supporting shoddy legislation.
The "full" name of this insipid piece of legislation is the "Democracy Is Strengthened by Casting Light On Spending in Elections" Act, which should really send you running for your closest loved one and a battered copy of Atlas Shrugged. I'm not yet ready to go into DEFCON III conspiracy-mode with regards to the DISCLOSE Act, but what I will say is that in the coming weeks, it's going to become increasingly important to pay attention to the below-the-radar noise about it. Inappropriate application of this new legislation could have disastrous consequences for online media, and depending on who's wielding the Great Redactor, could effectively censor conservative activist media on the internet. Don't look for new regulations to show themselves in the light of day; instead, look for them to come creeping in the dead of night, hidden under 1,368 pages of seemingly unrelated progressive "change," all in in the name of "strengthening democracy."