How many dollars dance on the head of a link? Unavoidably, such questions continue to arise as the FEC considers its rules regulating political activity over the Internet. I seems to me, though, that these kinds of questions need not cloud the horizon if the Commission embraces the notion that press is what people “do,” not what some people “are.”

The rulemaking has been devoted to determining what internet activities are “public communications” that require disclaimers and other regulations, whether the press exemption applies to internet journalism, and whether campaign volunteers and independent citizens can use their computers free from restricting.

But, the core truth here is that campaign finance is about valuation. The rub is that value may not be what you would think.

Typically, when a contribution of services - also called an in-kind contribution- is made, the Commission looks at the usual or normal charge that the contributed goods or services would fetch in the market. That only makes sense. If a campaign supporter provides free printing, then the value of that contribution is what he would have charged, not what the ink and paper cost to him.

Yet, consider the implications when links are involved. What is the value to a campaign of a favorable link from Daily Kos? Probably more than the value of the very same link on a high school student’s site only viewed by a few friends. Suppose the link is to the campaign’s contributions page, and is accompanied by a plea for supporters to give money? In some contexts, the value of the contribution, and the number on which a penalty is calculated, is determined by how much money the activity raised. Success breeds its own punishment.

Most of these issues go away for bloggers and other internet commentators, however, if internet commentary, news and opinion journalism is treated as exempt from regulation as a “contribution” or “expenditure.”

Mike Krempasky of Redstate.org and the Online Coalition argued that the press exemption is a simple thing to extend to the Internet as long as the analysis is tied to the activity and not the identity of the speaker. Carol Darr, however, in an interview with the Minneapolis Star Tribune, suggested that extending the internet exemption would allow Halliburton to run a shadow campaign using corporate funds for the benefit of George Bush.

I disagree that this is how the press exemption would apply, since there are precedents where courts and the Commission have looked at whether the entity is engaged in press activity or whether the “journalism” is just campaigning under a different moniker.

But what if it did? What if anyone with an opinion and the pocket change to pay for ISP and hosting services could speak about politics without regulation, talk to campaigns without fear of investigation, and spend what they want on video, podcasts, test messaging, and whatever new gizmo comes around?

I believe that such activity must be protected as “press activity” and that it is exactly this decentralized, argumentative, and (often) amateurish effort that the Constitution intended to protect. For support, you need look no further than Alexis de Tocqueville’s Democracy in America. Tocqueville noted that in the United States, "the creation of a newspaper is a simple and easy undertaking: a few subscribers are enough for the journalist to be able to cover his costs: so the number of periodical or semi-periodical writings in the United States passes beyond all belief. . .” As a result, “among so many combatants neither discipline nor unity of action can be established: hence we see each one raising its banner.” As a result, “the spirit of the journalist in America is to attack coarsely, without preparation and without art, the passions of those whom it addresses, to set aside principles in order to grab men; to follow them into their private lives, and to lay bare their weaknesses and their vices. . .” But it engaged people and “made political life circulate," hence Tocqueville concluded it had power beyond what one would expect.

Tocqueville is descriptive rather than proscriptive, but the passage suggests to me at least that ease of entry and dispersion of views in that system is a (very) good thing. And it doesn’t matter if the “news” is gossip rather than a Paul Krugman essay. Blogging and other forms of upstart internet journalism fit well into the picture - ironically the establishment press would seem to exhibit the centralization, power, and groupthink that Tocqueville criticizes elsewhere.

So, as a matter of policy or history, a press exemption shold be available to anyone who publishes news, opinion or commentary. This is not a threat to democracy. Instead, it is necessary, and the greater threat comes from thinking that the government, however benign or well-intentioned, can pick among commentators who is protected and who is not.

Law & Policy
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