Redstate

By krempasky Posted in FEC — Comments (2) / Email this page » / Leave a comment »

Well, you don't often see fireworks at FEC hearings, from what I understand. But the Commission just released the transcripts from the June 28-29 hearings on the internet rulemaking. It was with great personal disappointment that I missed Trevor Potter's appearance before the Commission so I'm excited to share with you the exchange between Commissioner Bradley Smith and Campaign Legal Center President and regulator extraordinare Trevor Potter.

COMMISSIONER SMITH: Thank you, Mr. Chairman.

Taking up a bit on thinking about this threshold, Mr. Potter, you had in your comments, your joint comments, suggested that the Commission should consider whether it has the authority to establish by rule a reasonable dollar threshold, e.g., $25,000 for spending by an individual on production costs for materials to be disseminated via the Internet. So what do you think? Do we have that authority or not?

MR. POTTER: We carefully said the Commission should consider it, get the advice of its General Counsel, have a reasoned opinion from them, because we don't know.

COMMISSIONER SMITH: Well, I guess, he would probably like your advice, too. I mean, here's the thing-- [Laughter.]

COMMISSIONER SMITH: --your organization has no members, so as far as I can tell, the only basis you have for being up here is your expertise. And you've kind of suggested this, and I'm asking for your opinion now. Is it yes or no? What do you think? Give me your best guess. Do we have this authority or not?

MR. POTTER: I don't think you do.

COMMISSIONER SMITH: So in other words, you're suggesting, well, we could save the bloggers a lot of problem, but actually, we probably really couldn't. And it would have to be enforced until Congress acted on it.

MR. POTTER: No, I'm suggesting that all of you should take a look at it and see whether you think that is defensible.

COMMISSIONER SMITH: If we decided to do it, would you sue us, you having just said you don't think we have that authority? [Laughter.]

MR. POTTER: I have said that I don't think I see it. If you decide that you do based on a reasoned recommendation from the General Counsel's office, I assume you would act on it. If you decide that you're unsure, you would put it in your recommendations to Congress, which I think is the other approach that's worth doing here.

COMMISSIONER SMITH: I don't think that's very helpful, but with due respect, I appreciate the thought that we should consider things. We have another thing that came up. Now, I note, and I've noted repeatedly, that nothing in--I've read the plaintiffs' brief in this case many times, and nothing in that brief suggests that their only concern was paid ads. It just never is raised; never do they say that paid ads are what they are concerned about and only paid ads. And nothing in the court opinion limits the reach of the opinion to only paid ads.

Thus, I was delighted when after my CNET interview in March, your organization came out very aggressively and said this is only about paid ads and nothing else. And so, what I want to get down is if we come out with a rule that exempts everything but paid ads, are you going to promise that you won't sue us? [Laughter.]

COMMISSIONER SMITH: And can you promise that Senator McCain won't sue us, whom you've represented as a client many times?

MR. POTTER: I would never be ill-advised enough to make promises on behalf of Senator McCain, who has his own mind on all of these things. I was very interested to learn really just today that it is the view of former Commissioner Sandstrom, who voted for this rule, and I gathered from your exchange earlier, perhaps your view, that the rule already covered paid advertising and hear at least Commissioner Sandstrom say he thought it covered party Websites and email purchase costs, et cetera.

If the Commission wanted to make that clear in its rule, I think that would go a long way towards addressing the concerns at least that the Campaign Legal Center had.

COMMISSIONER SMITH: It won't go all the way. I just want to know what Mr. Bassik and Mr. Black should be preparing for and whether they should have any doubts, because that has been a big issue, because to be blunt about it, your group has actually cast aspersions here on my honesty in raising these things and said I'm intentionally raising things that aren't true, and so, I'm trying to pin you down. Is that the case, or not, or are there maybe some problems other than paid advertising lurking out there?

MR. POTTER: Oh, Commissioner Smith, I wouldn't be callous enough to cast aspersions on your honesty and I apologize if you thought I did cast aspersions on your honesty. Honesty isn't what was involved. What I suggested was that--

COMMISSIONER SMITH: Hold on. Hold it:

Commissioner Smith's interview does a good job of providing misinformation on the subject, and then, it says: As it was obviously intended to.

MR. POTTER: Yes, I think it was intended to cast attention towards the blogging community, and the suggestion that what the court had ordered here, which can only be remedied by Congress was the suggestion of the interview, was the wholesale regulation of the Internet. I don't think that's what the court ordered here. It ordered that the Commission review the definition of public communication and come up with something other than a flat exemption for public communication for all activity on the Internet.

Paid advertising, party Websites, email purchases are, I think, as I indicated, the vast bulk of that concern, and to complete my answer, the only other concerns I would have are those laid out in our written comments.

COMMISSIONER SMITH: Thank you, Mr. Chairman.