Redstate

By Brad Smith Posted in User Blogs — Comments (0) / Email this page » / Leave a comment »

The campaign finance "reform" groups are at it again, spreading nonsense about H.R. 1606, the On-Line Freedom of Speech Act.  Their latest - and most assuredly not last - press release is here.  Allison Hayward, formerly with the FEC, has already done a pithy little takedown here, but I want to address the "reformers'" claims and misrepresentations a bit more seriously.First, we need to start with something that isn't substantive, but needs to be said.  The "reform" groups write, "''Our groups strongly support the free speech rights of bloggers and believe that the Internet is an important and positive development for political discourse and activities, and for increasing the number of small donors in politics.''  But that's for public consumption.  The reason this is an issue at all is because after McCain-Feingold was passed the FEC - noting that, unlike "outdoor advertising," "billboards," "telephone" and hosts of other media,  the Act didn't mention regulating the internet - exempted the internet from much, though not all regulation.  Representatives Chris Shays and Marty Meehan then sued the FEC, with amicus support from Senators Feingold and McCain.  In their briefs to the Court, represented by lawyers working for at least two of the groups now claiming to "believe that the internet is a ... positive development,"  they described (or approvingly quoted others describing) anything less than a fully regulated internet as, "a loophole;" "a step backwards;" "a poison pill;" and "anti-reform."  (See page 25 of brief.) They specifically rejected the notion that the internet's inexpensive nature made it different from other forms of communication, and they specifically called for the FEC to regulate email communications (see page 23 of brief).  So let us not put too much trust in their protestations of fondness for the net.

Second, remember that HR 1606 merely preserves the status quo.  The 2004 election was fought out with the internet exemption in place, and none of the reformers' horror stories came true.  But now a judge has ordered the FEC to regulate the internet.  HR 1606 does not change the law - it preserves it.  Yet the so-called reformers claim that if the law is kept as it is, it will "open gaping soft money loopholes."  The reality is that those "loopholes" have been open for four years, and none of their predictions have come true.

That said, what are the so-called reformers actually saying about the substance of the OnLine Freedom of Speech Act?  Not the rhetoric, which simply repeats over and over, in a one page release, such words as "corrupt" or "corrupting" (5 times), "loophole," (5 times), "scandal," (3 times), "unlimited" (3), "huge" (4), etc. (and that's just in the press release - not the actual letter).  But the substance?  Is there anything to their charges? Let's see:

Allegation: The letter says, "A Washington lobbyist such as Jack Abramoff [ed. - wonder why they didn't use John Breaux or Linda Daschle?] could provide an unlimited amount of corrupt soft money for a member of Congress to use in buying campaign ads on the internet."

Truth:  Campaigns are precluded from accepting soft money.  Every member of Congress (I hope!) knows that much.  This bill in no way changes that.  All contributions to a candidate have always been limited to hard money, even in the days before McCain-Feingold.  See 2 U.S.C. §441a(f) and §441i(e).  

Allegation: HR 1606 would exempt paid advertising from the law.

Truth: One can reach this conclusion, but only through a most strained interpretation of the bill - an interpretation the reformers themselves do not adopt in any other context.  Any paid campaign ad is otherwise covered and limited as an "expenditure" under 2 U.S.C. §431 (9) [defining expenditure] and §441a(f) [requiring that candidate expenditures be made from "hard" money subject to the Act's limits and prohibitions].  Now, true, one could conceivably read HR 1606 as exempting even "expenditures" from the law, if made over the internet, but one could also read the current law's "press exemption" as applying not only to press reporting, but to paid ads on TV, radio, and in newspapers and magazines.  Of course, nobody does that, and such a reading would be silly.  The language of HR 1606 tracks the same language the statute uses to create the "press exemption."  Yet there is not a reformer in the world prepared to tell Congress or the public that paid television advertising is exempt from the law under the "press exemption."  Similarly, HR 1606's "internet exemption" does not exempt paid ads.  The so-called "ethics watchdogs" are just trying to gin up a scare.  

Allegation: A member could coordinate ads with a lobbyist (ed. - why not a citizen?) to prepare internet ads, decide what websites to buy ad space for them, and have the lobbyist pay for them.

Truth:  As noted above, paid ads would still be limited to hard money under the normal interpretation of 2 USC §§431(9) of the law - the interpretation the reformers give to the law everywhere else.  If it were otherwise, why hasn't this happened yet?  Remember, this is the law that has been in effect since 2002.  

Allegation: "A corporation or labor union could provide an unlimited amount of corrupting soft money to a state political party for the party to use to pay for campaign ads on the internet."  

Truth Like everyone else, a state committee can only spend hard money for campaign ads for federal candidates.  

The Reformers want people to think this is about paid ads.  It's not.  As I've noted, under all but the most strained interpretation of the law - and not under the interpretation the reformers use everywhere else - paid ads are covered regardless.  Heck, we went through the entire 2004 campaign with this exemption in place, and to my knowledge, as Chairman of the FEC at that time, there was not a single complaint filed, and no one tried to argue that paid ads were exempt.  But now, pursuant to a judge's order, the FEC is preparing rules to regulate the internet - and pursuant to the judge's order, which is not restricted to paid ads, the FEC's rulemaking is not restricted to paid ads.

This is about keeping the internet - the one low-cost medium where the average citizen can compete with the big boys - free from legal regulation that only the big boys will be able to afford.  The "Reform Community's" hostility to the internet, and the scare stories they are trotting out, should not be allowed to obscure reality.