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By krempasky Posted in FEC — Comments (0) / Email this page » / Leave a comment »

Many, many thanks to RedStater Alex Kowalski for working on this transcription. The first half is below the fold. (it's a bit of a rush, so I'd ask any RS editors to pitch in with the proofreading)

One highlight:

Smith: "She orders us to regulate the Internet, again what I point out is -- it is in no way limited to paid advertising. In fact, it would be contrary to the tone of the opinions limited only to paid advertising. In another part of the opinion, she struck down one of our regulations where we exempted unpaid advertising. So, I, you know, this was, it’s – it’s in no ways limited to unpaid advertising."

Much food for thought, read on.

Transcript of FEC Commissioner Bradley Smith interviewed on NRA News, March 4, 2005

NRAN: It was back on October 13th of 2004 when I believe we last spoke to FEC Commissioner Bradley Smith, and, uh, lo and behold the other day I see a story on, uh, NEWS.COM about the coming crackdown on blogging.

Well, you heard about it months ago, but the FEC has been hard at work trying to figure out how to implement this judge’s ruling saying that, uh, you know, the Internet isn’t exempt from McCain-Feingold.

Joining us now to talk about this once again, FEC Commissioner Bradley Smith and, Commissioner Smith, thanks for coming on the program again.

CS: My pleasure, Ken.

NRAN: Alright, so where do we stand now, I mean, months ago when we talked to you the judge had just issued her ruling uh, and, and, we talked and I asked you, you know, could we see a day when, when you guys are going through blog by blog trying to find out who gets the media exemption and who doesn’t? And you said, “Yeah, that’s possible...” Is that still, uh, is that still what we’re looking at?

CS: It certainly is. Um, what will happen is later this month or early next the Commission will put out a Notice of Proposed Rulemaking, that will have some potential rules for regulating the Internet. I, I don’t know at this point myself what will be in those rules, because I don’t know exactly what all of my colleagues were thinking, but again I note that we didn’t have enough votes to muster up an appeal of the judge’s decision, uh, on this particular issue, so obviously, uh, half of my colleagues at least feel that we should be doing more regulation of the Internet.

NRAN: I know you can’t, uh, I know, I understand that you can’t, uh, tell what your other Commissioners are thinking – can you tell us what the heck the judge was thinking??...

CS: [laughter]

NRAN: ...when she issued this ruling? I mean, we’re here with Jim Geraghty, who writes TKS on NationalReview.COM and, um, you know, here are two organizations that, uh, very clearly talk a lot of politics, Jim writes about politics on a daily basis, we’re discussing politics on a daily basis, so, I’m guessing that come these new rules, people like Jim and I could be directly affected by these?

CS: Well, let me tell you some of the potential ramifications. I mean, some of the folks now, uh McCain and some of his allies, are out saying, “Well, this would only apply to paid ads.” That’s ju—the FEC already treats paid ads as subject to the act. But nothing in the judge’s decision limits it to paid advertising, and it, she says anything that’s coordinated, for sure we have to regulate. Now, what is coordinated under FEC regulations? Any republication of campaign material counts as a coordinated complication. That means, for a blogger, if you put up anything, or ah, from a campaign onto the blogsite, that’s going to be republication of campaign material. If you get an email from a campaign because you’re on their list, and you then forward it to 50 or 100 friends, that would be potentially subject to the act.

NRAN: Alright, let me give you, um, let me give you um, a uh, a hypothetical. Say somebody gets an email from a candidate, they put it up on their blog to discuss it in a critical light, obviously they’re not a supporter of the candidate, but they’re saying, you know, “...look at this, they’re wrong here, they’re wrong here, they’re wrong here, they’re wrong here...” You’re saying that that could still count as a uh, a coordination with a campaign and that could be seen as a campaign contribution?

CS: Well, we’re going to have to get into that kind of, uh, I mean, here’s what you’re going to say: Let’s suppose it’s clearly attacking the candidate that’s mentioned...

NRAN: ...Yeah...

CS: But, but republishing his material. Would we say that that’s a contribution for the other candidate? Um, maybe not, because he didn’t coordinate anything with the other candidate. But what if it’s NOT QUITE CLEARLY attacking the candidate, but it’s kind of analyzing the proposal, it’s [inaudible] there’s some negatives. In other words, you start getting into these ‘line drawing’ propositions that are going to be very tough to use. And of course, if you’re praising the proposal, or praising the candidate, then you’re, then you’re going to clearly going have a problem.

NRAN: Alright, and, and, my next question, I know Jim wants to jump in here too, but...How Big is the FEC Going To Grow? Uh, because [laughter] because obviously you’re going to have to hire hundreds of thousands of people to start monitoring all of these websites?

CS: Well, uh, Ken I have no idea how some of these things would be enforced [laughter background]. But that’s one of the kinds of, uh, problems in the, in the thicket that we have waded into, or that we are wading into. Let me give you another example. If you link to a site, that could be deemed to be a coordinated contribution to the site. Now you might say, “...well, what’s the cost of linking to a site?” or, “...what’s the cost of sending out...forwarding something by your email?” It’s virtually nothing. But there’s two issues here: One is, of course: if somebody has made the maximum contribution, even a small, uh, addition would put him over the legal limits for contributing to the campaign.

The other thing would, uh, be that the Commission has often valued contributions not by the amount you spend, for example, corporations cannot use their resources to help a campaign to raise money. But we’ve said, “...let’s suppose a corporation uses 20 minutes of a secretary’s time and thirty dollars in postage to send out some letter...” We don’t value their contribution on the basis of the amount of time spent and the $30 postage; we value it based on the value to the campaign, in terms of money raised, and so on. And if we take that approach and apply it to the Internet, then even these very nominal expenditures that people make are going to count as pretty big violations of the act.

JG: Um, Commissioner it’s, uh, Jim Geraghty with National Review. Uh, probably one of the guys who would be directly uh, tar---, you know, might as well paint a bullseye on my back now by this regulation....uh, I’m curious...U.S. District Judge Koller Cotella was the one who instituted this. Is it fair to say she doesn’t...quite...get the Internet? And how these things work, and how blogs work you know, like, is...is this you know, has just...doesn’t understand the issue and thus decided, “OK...it’s a good thing to be regulated.” ??

CS: Well, I, I don’t want to comment on, on Judge Kollar-Kotelly’s opinion, I mean, it speaks for itself. She orders us to regulate the Internet, again what I point out is -- it is in no way limited to paid advertising. In fact, it would be contrary to the tone of the opinions limited only to paid advertising. In another part of the opinion, she struck down one of our regulations where we exempted unpaid advertising. So, I, you know, this was, it’s – it’s in no ways limited to unpaid advertising. Beyond that, I don’t want to comment on what she was thinking, her opinion, I guess, can speak for itself. Uh, but it requires us to do some regulating here, and we did not have the votes to appeal that portion of the opinion.