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By krempasky Posted in FEC — Comments (13) / Email this page » / Leave a comment »

Back when I started working in politics - the notion of testifying before Congress was good for nothing more than a laugh. I always thought if it ever came to it, I ought to practice the phrase, "I'm sorry Senator, I don't recall." Perhaps due to the fact that the first time I ever watched Congress on television, it was Oliver North interrupting my normally scheduled programming. So it's a nice surprise to be invited, not compelled.

But even so - I'll be representing RedState by testifying before the Committee on House Administration tomorrow about the Online Freedom of Speech Act. My full testimony is below the fold. As you might guess - I'm for freedom.

Before the

Committee on House Administration

United States House of Representatives

Hearing

“Political Speech Over the Internet: Should it be Regulated?”

September 22, 2005

Testimony of Michael J. Krempasky

Director, RedState.org

Thank you, Chairman Ney, Ranking Member Millender-McDonald, and distinguished members of the Committee – my name is Michael Krempasky, and I blog at RedState.org

I appreciate the opportunity to appear before this committee to talk about an issue of great importance to the future of America’s political discourse and freedom of speech.

The legislation you have before you today will directly affect millions of people. Not just the more than seventeen million blogs currently indexed by the search engine Technorati, but the millions of people who currently have the freedom to take a few minutes and add their voice to our ongoing political conversation.

The rapid increase in blogging after 9/11, accelerated by technology and ease of use, gave individuals of every background, persuasion, and political stripe an equal voice in the public square of the internet. The academic in Tennessee, the homemaker in Ohio, and the lawyer in California all have a voice, and an ability to share their thoughts and beliefs with broadest audience.

Yet blogs are more than a medium populated by random individual voices—they are gathering places, the modern descendants of the town hall meetings and citizen speeches of the 18th century that provided the very basis for America’s existence.

Free to speak their minds, Americans have proven to be surprisingly unchanged from when de Tocqueville spoke of our boundless “liberty of opinion,” creating a virtual community that is vibrant, entertaining, intellectual, and informative.

Even more important – it has created exactly the sort of political “utopia” that the so-called ‘campaign reformers’ ought to be praising. It’s an environment in which Big Money has no significant advantage over small speakers – a level playing field on which creativity and passion trump volume and muscle.

But instead, thanks to the consequences of a lawsuit and the vagaries of the FEC rule-making process, this thriving and popular medium faces the prospect of destruction.

Make no mistake: there can be no effective political regulation of the blogosphere without destroying the freedom that makes this medium great. In fact, the only reason we’re here today is that while ordered by a federal court to create rules to govern political activity on the internet – the regulators at the Federal Election Commission have been unable to do so.

The reform community stands terrified of an unregulated internet. Surely they fear that mighty corporations or well-heeled donors will simply use this new outlet – let’s call it a “loophole” to pour vast sums of money into our politics to distort and harm our democracy. During a hearing this summer at the Federal Election Commission, we heard of the horrors of the “Haliblogger” and what sort of damage he could do combining a blog and corporate power.

They will talk about “expensive video productions” and “animated emails” and wonder how the little guy could ever compete.

Members of the Committee, the problem with this analysis is that it is simply not rooted in fact – and those raising this problem just don’t understand the internet.

The blogosphere is, in the simplest sense, not a broadcast medium. Consumers of news and information are not passive participants, they actively seek out the content they want. They have millions of choices at their fingertips. The power of the blogosphere is its amazing speed combined with a vast array of distributed resources. Many small voices speaking together consistently outweigh the well-funded interests. Bloggers don’t have influence because they start with large chunks of capital – in fact, most if not all start out as relatively lonely voices with tiny audiences. By delivering credible, interesting, and valuable content – their audience and influence grows over time.

Regulations that would create legal obstacles, burdens, thresholds and loophols for every individual blogger would generate a minefield that only the wealthy or the lawyers could navigate.

Take a look at how the application of the Bipartisan Campaign Reform Act plays out today – just about every political campaign in the country has its own lawyer. And consider those millions of bloggers – do we really want to create that many new prospects for our nation’s legal industry?

Even worse - if individual bloggers must pass a governmental test every time they discuss their feelings on political issues, the reaction will be completely predictable: rather than deal with the red tape of regulation and the risk of legal problems, they will fall silent on all issues of politics.

The question we must ask is this: what is the proper role of government in relation to the blogosphere? Or, put another way: Should the government treat bloggers with the same level of fairness and respect for their right free speech enjoyed by the news media?

Indeed, it is my belief that the legislation now before you is only a down payment on free speech. As other witnesses will surely point out – this bill only deals with a specific provision within the mountains of statutes, regulations, and judicial opinions that govern campaign finance. But nonetheless, you have an opportunity to put Congress on the record – for the first time in a long time – with a clear statement that some places and some activities ought to be beyond the reach of federal regulators. The internet ought to be such a place.

But again, this remains just a down payment. Even if Congress determines that communications over the internet do not constitute “public communications” for the purposes of BCRA, bloggers and other small speakers are still facing considerable regulatory problems that can only serve to chill speech. While this legislation addresses a very specific provision of the statute, and I support its passage into law, it remains that an enterprising litigant or overactive regulator could easily force the weight of the rest of the law onto bloggers.

I will leave it to the lawyers appearing today to speak to the specifics of the regulatory dangers that remain, but I would like to address what I believe is the best practical solution that Congress could enact – without waiting for courts or the Federal Election Commission to act: simply acknowledge what we already know: that bloggers are part of the new media.

Our current campaign finance regulations touch nearly every area of political participation by associations, corporations, candidates, political parties and individuals. But one group is notably and, for practical purposes, completely exempt – the news media.

There is no doubt that bloggers are, by any reasonable definition, media entities. Nor is there any doubt that the tradition of citizen journalists is a long accepted part of our national culture. From before very founding of our country, individuals and relative unknowns have contributed to this great conversation. The boundaries defining who or what a “media entity” is have eroded to the point of irrelevance. We no longer have a limited number of easily-defined outlets or a restricted professional community.

Presumably, this media exemption is rooted in the notion of the intrinsic value of trusted, objective, and comprehensive information in the hands of the citizenry. Unfortunately, when we look at our traditional media today – it is neither trusted, nor objective, nor comprehensive.

A recent Pew study showed that: “The percentage [of respondents] saying they can believe most of what they read in their daily newspaper dropped from 84% in 1985 to 54% in 2004.” Worse yet, another study by Columbia University showed that among journalists themselves, 45% are less trusting of the professional behavior of their own colleagues – just two years ago, only 34% had such doubts.

As far as the objectivity of the established and bona fide press is concerned, we need not look very far to see a deep distrust of our mainstream media. Organizations on both the right and on the left raise and spend millions of dollars documenting examples of bias in coverage when it comes to campaigns and elections.

Moreover, the popular established media in this country is anything but comprehensive. Large majorities of Americans believe that news organizations are more concerned with gathering large audiences than informing the public with facts.

Minutes after Hurricane Katrina struck the Gulf Coast, bloggers were collecting, sharing, and distributing first-hand reports of the devastation, hosting documentary video footage, and lending help to the relief efforts. Lousiana bloggers who could maintain connections continued to post updates on the areas around them in greatest need—some direct from the heart of New Orleans.

In a news cycle measured in tiny increments, bloggers were hours ahead of their mainstream counterparts. And in reaction to tragic devastation and humanitarian need, they were willing and ready to lend their voices, time, and effort to help. De Tocqueville wrote of this as well—of the “Countless little people, humble people, throughout American society, expend their efforts in caring and in the betterment of the community, blowing on their hands, pitting their small strength against the inhuman elements of life … [as the] Constitution of their nation undergirds and strengthens this activity.”

Time and time again, it is the new media – bloggers – who fill the information gap. The vast resources of the blogosphere as a whole, its expertise, creativity and motivation – dwarf any newsroom in the country. Free of the constraints of bureaucratic hierarchies and concerns of column inches, blogs can provide news coverage that is both faster and more in depth than anything the mainstream media can hope to provide.

What goal would be served by protecting Rush Limbaugh’s multimillion dollar talk radio program – but not a self-published blogger with a fraction of the audience? How is the public benefited by allowing CNN to evade regulation while spending corporate dollars to put campaign employees on the airwaves as pundits, while forcing bloggers to scour the Congressional Record and read FEC advisory opinions?

Worse yet, if the government were to adopt a policy of examining individual blogs on a case-by-case basis, how is that to be distinguished from a government license to publish free of jeopardy – only granted (or denied) after the fact? Unlike previous investigations in the offline world, these cases would affect not large corporations or interest groups with the ability to hire the best firms in Washington, but instead unsophisticated and unfounded individuals poorly suited to navigate the regulatory process.

Perhaps it takes a Frenchman to recognize the most important elements of America’s greatness. I hope Congress will see fit to recognize this truth as well.

I thank you again for your time and attention, and I look forward to answering any questions you have.