Reactions of an informed viewer to the morning sessions of the Federal Elections Commisison hearing on Internet Communication. This FAQ is presented in summary form. It took much longer for these actual conversations to occur. It was, after all, a lazy summer morning in Washington, D.C.
Question: Does anyone want to subject bloggers to campaign finance regulations?
Answer: Not that they want to talk about on the record.
Q: So what's the best way to protect bloggers from campaign finance regulations?
A: Well, it's not through a media exemption, either case-by-case or blanket exemption.
Q:. What's wrong with case-by-case exemptions?
A: See the entries here on PDF of everyone else named Mike, and Chris Nolan.
Q: Okay. What about a blanket exemption?
A: Well, that raises the possibility that the big Internet service provider and other mass-trafficked sites could fiddle with their back-end architecture to favor a candidate or party. That's on top of the fears - some overstated, some not -- that so-called "soft" money (funds for causes, not candidates) will sneak into the system via corporate, union, federal contractor, foreign national, and wealthy individual blogs. Now, no one is likely to be able to sneak in that way for long without being identified by others. Eventually, they'll be identified. No one gets squeezed out; and citizens retain the power to decide what they look at and for how long.
Q Huh?
A: Worries about the power of gatekeepers - big "portal" web sites like Yahoo or ISPs like Earthlink -- came up (finally!) in an exchange among Commission Chairman Scott Thomas, David Mason, and Marc Elias, a lawyer for John Kerry's presidential campaign who testified before the commission.
Here's the worry behind concerns about a blanket exemption: Suppose Google or some other search company deliberately jiggered its free search engine results to help a campaign or party? Suppose Amazon, which, to its credit, linked from its home page to every single nominee for president in 2004 so as to encourage donations, linked only to the Republican and Democratic nominees? That would affect lots of voters, and it might go undetected for a while.
Q: Well, again, so what? Internet users - campaigners and citizens both - still have options.
A: Do they? And what if they don't know they are being messed with? Are you really satisfied with caveat emptor for such a development? Are you absolutely sure the internet will remain impervious to monopoly and oligopoly?
Q: But these are hypothetical cases you're citing. That's no rationale for regulation.
A No, it isn't a rationale. But it might become one in the future. So it would be imprudent to foreclose on the possibility of government regulation of internet campaigning. A blanket exemption - hands off the Internet -- could do just that.
Q: Then how best to protect bloggers...and emailers, and video-makers, and everyone who is not in charge of a major node on the network?
A: No one's sure. Maybe there could be an exemption to all individuals, perhaps. or, an exemption for volunteers, one that's broadly construed. One things pretty clear, though: A blanket media exemption has just as many problems as a case-by-case review and exemption process.
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Wet Blanket?
I think Cornfield confuses applying the "media" or "press exemption" to internet activity with something called a "blanket exemption" - whatever that is (I thought blankets were already exempt . . .)
The "press exemption" has been in the Campaign Finance Act from the early years. Basically, it exempts from treatment as a federal "contribution" or "expenditure" communications that are news, commentary, or editorials distributed through broadcast, newspapers, or other periodicals.
The elephant sitting in the room is whether a blog or podcast or whatever form you want to pick in internet journalism is a "periodical." (There might also be questions about whether the contents of a blog that is mostly about personal stuff is "news" or "commentary') But there has also been an interpretive gloss through the years on the exemption that invites the Commission (or judges) to scrutinize the bona fides of the speaker.
What the more deregulatory commentators in this hearing process are arguing is that the exemption should be applied as written - without evaluating the "press characteristics" of the speaker. But -- and here's where it seems to me Cornfield off track a little - the communication still needs to be "news, commentary or editorial" and in a broadcast or periodical. Rejiggering Google results to favor a candidate is not an activity that would be accorded this exemption in anyone's mind.
Although I wasn't at the hearing to observe the context of the line of argument, I believe this "debate" is more a straw man set out to confuse the issue.