Campaign Finance

In the past, I've expressed a little distaste for something called the Incumbent Protection Act, which bans anyone except the media elite from doing anything that could possibly alter the outcome of an election.  It seems that in the wake of media-driven scandals about lobbyists bribing politicians, the author of the Incumbent Protection Act has decided the time is ripe to go for the jugular.  In addition to banning Americans from exercising their free speech rights, he has decided to ban Americans from telling politicians what they think.

Here's how it works, according to AlphaPatriot: With the so-called "Lobbying Transparency and Accountability Act", every invitation issued to the general public by a group like Gun Owners of America to engage in "lobbying contacts" would need to register their intent 20 days in advance. 

What does this mean in practice?

First, it means that if you want to pass out flyers to your friends suggesting they call a politician to complain about something, you need to hire a lawyer.  How many grassroots lobbying efforts are going to pass that hurdle?  Damn few.

Second, it means that interest groups -- again, like GOA -- will no longer be able to keep up with the twists and turns of legislation.  Take, for example, the Patriot Act; it was proposed and passed within 7 days, less than half the mandatory notification period under McCain's proposed law.  No interest group could organize effective opposition to a fast-tracked bill.

Third, it means this website would be illegal.  Why?  Well, it's an organization whose reason for existance is promoting political activism.  When I wrote the software I included specific features intended to invite the public (people who subscribed) to make "lobbying contacts".  And I'm not going to register my posts.  For all practical purposes, it probably makes any political blog illegal; mine is hardly unique.

I don't have time to do any sort of detailed analysis on this one.  Head over to AlphaPatriot for the scoop.  But I do have time to say this: McCain is no longer an asset to the cause of freedom, if he ever was.  He has become a liability.  He should be retired, and I encourage the voters of his state to do so at the first opportunity.

UPDATE: There may be some good news from the Supreme Court on this front.

... and while this notice is a bit belated (the story dates from November 17th), it's still welcome.  Even if I would prefer that the headline was something closer to "Supreme Court rules McCain-Feingold Campaign Finance Reform unconstitutional".

By way of the Geek with a .45, the FEC has determined after an extensive deliberation that bloggers are entitled to the same press exemptions granted to the old media.  That's good, because it means that bloggers won't be directly regulated with respect to their opinions.  It's bad because it admits the possibility that they could be regulated in the future.  Laws which violate the bill of rights are best responded to with a Supreme Court ruling rather than a regulatory finesse. 

Not that the Supreme Court has not fallen on its face on this law in the past; I'm just sayin'.

... he's complaining about the Online Freedom of Speech Act failing to pass, and calling it a "love pat" from Bush.  The only problem with this premise is that 2/3rds of the Republicans in the House voted for the bill, and 2/3rds of the Democrats in the House voted against.  How that translates into blaming Bush I have no idea.

The Act, which would have defined the types of communication regulated by the McCain-Feingold Incumbent Protection Act to exclude the Internet, failed to pass the House.  Because the bill was brought under suspension of normal rules it required a 2/3rds vote to pass (225-182). 

It is very depressing to realize that nearly two hundred elected Representatives can't read the Constitution.

The bill will likely be back under a more normal process requiring a simple majority vote.  However, NPR suggested that such a process would leave it open to amendment, so bringing the bill back comes with a certain amount of risk.

UPDATE: Here's the vote tally.  More than two-thirds of Democrats voted against this bill.  These are the champions of free speech?

Now looms a wolfish assault in sheep's clothing: the Online Freedom of Speech Act, which House Republican leaders are suddenly planning to put to a vote on Wednesday so politicians can abuse the Internet as an unregulated outlet for multimillion-dollar advertising campaigns. The bill, put on a fast track in the hope that nobody notices outside the political-industrial complex, would exempt the Internet from the hard-won three-year-old reform law that stopped federal officials from tapping corporations, unions and fat cats for unregulated donations in the quid pro quo marketplace.

The New York Times isn't defending anything other than their dwindling profits.  Hat tip to the good folks at Hit and Run.

"I got elected. You may not criticize me."
OK, the incumbents don't put it that way. They say: "There's too much money in politics! We need campaign finance reform."

This sort of nonsense started with the Alien and Sedition Acts... of 1798.  Career politicians will go to any length to hold on to power.  I say we ban incumbents entirely.  Maybe we can even confiscate them door-to-door...

According to a recent report by the nonpartisan Political Money Line, Campaign Finance Lobby: 1994-2004, Pew spent an average of $4 million a year over 10 years promoting reform. Seven other foundations -- including the Carnegie Corp. ($14 million), the Joyce Foundation ($13.5 million), George Soros' Open Society Institute ($12.6 million) -- cumulatively ponied up another $83 million over 10 years for the same purpose.

Congress has set a price on your First Amendment rights, and that price was shamefully low: $123 million dollars.  They can't even learn from Dr. Evil, whose minions advised him repeatedly to ask for billions, not millions.

If you've been looking for a good way to tell the FEC to stick it's regulation where the sun don't shine, this online petition is a good place to start.

But I'll take this legislation in a pinch.

Bloggers of America, chill.
Reports of a Federal Election Commission plot to "crack down" on blogging and e-mail are wildly exaggerated.
First of all, we're not the speech police. We don't tell private citizens what they can or cannot say, on the Internet or anywhere else. The FEC regulates campaign finance. There's got to be some money involved, or it's out of our jurisdiction.

Perhaps the Democratic Commissar is familiar with the term chilling effect.  From her use of the term, though, I don't think she actually understands what it means.  First-Amendment jurisprudence has been that the government is prohibited from conduct that would have a chilling effect on free speech, whether that conduct actually restricts speech or not.  So the government can't take down the names and addresses of everyone who writes a newspaper editorial; it might have a chilling effect.

And a chilling effect is exactly what we are looking at here.  Regulation of internet speech should be off-limits precisely because that platform is available to everyone.  Bloggers are not members of some journalistic elite, and they do not have access to expensive lawyers and local monopoly profits to defend their blogs against FEC lawsuits.  If the FEC regulates blogs to any significant extent, bloggers will not be able to afford the legal expertise to comply, and many will choose to shut down rather than risk violating laws they do not understand.

That's the textbook definition of a chilling effect.

And the FEC considers non-monetary donations to be the same thing as finance.  That means that donating a blogad to your candidate could be consdered a financial contribution, because the donation has value.  (For an idea how much value, consider a typical deal: $15 / mo for a campaign of 24 months = $360.  That's not peanuts, and if you also reposted their campaign material over that time you might have to count that as well.  Didn't know that?  Congrations, you're a free speech criminal.  Getting a little chilly?

What if you're the Daily Kos, the top-tier leftie?  $12000 per month to run a premium blogad on his site.  Think Kos will be donating any blogads to his candidates?  Probably not, since the value of that donation would exceed the limit even though no money changed hands.  The libertarian-right's top blogger, Instapundit, brings in $3500 / mo for his top blogad.  That's still over the limit in a single month.  Little Green Footballs asks $600 / mo; run a donated blogad for two or three months and they get into trouble.  And there are lots of people who would go over the maximum contribution limit over a long campaign if the value of their donated blogads is considered a donation. 

And that's exactly what the FEC's Bradley Smith told us they were considering. 

Bradley Smith says that the freewheeling days of political blogging and online punditry are over.

In just a few months, he warns, bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's pressrelease to a mailing list, depending on the details, could be punished by fines.

Smith should know. He's one of the six commissioners at the Federal Election Commission, which is beginning the perilous process of extending a controversial 2002 campaign finance law to the Internet.

In 2002, the FEC exempted the Internet by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision. "The commission's exclusion of Internet communications from the coordinated communications regulation severely undermines" the campaign finance law's purposes, Kollar-Kotelly wrote.

Smith and the other two Republican commissioners wanted to appeal the Internet-related sections. But because they couldn't get the three Democrats to go along with them, what Smith describes as a "bizarre" regulatory process now is under way.

Free speech in America is officially dead.  Oh, and if you think Democrats value your free speech rights any more than Republicans do, take a close look at the last paragraph.

Two U.S. congressmen Tuesday introduced legislation that builds on a provision of the Bipartisan Campaign Finance Reform law of 2002.

"Stand By Your Internet Ad" is a follow-up to "Stand By Your Ad," commonly known as the "I approved this message" tagline requiring candidates for federal office to take responsibility for their election ads.

Rep. Mike Castle (R-Del.) and David Price (D-N.C.) co-sponsored the bill, which would apply the current Stand By Your Ad requirements for radio and television ads to Internet audio and video communications as well as pre-recorded telephone calls.

The whole "I approved this message" requirement is pretty much pointless; candidates can simply outsource their negative ads to 527 organizations.  Applying those requirement to the internet isn't itself terribly onerous, since it applies to campaign ads paid for by a candidate rather than the internet generally.  It won't necessarily do much good or bad in that respect.  But if we can get congressional action for something as silly as this, why can't we get congressional action to repeal the Incumbent Protection Act Campaign Finance Reform Act?

Sen. Hillary Rodham Clinton (news - web sites)'s former finance director has been indicted on charges of filing fictitious reports that misstated contributions for a Hollywood fund-raising gala for the senator, the Justice Department (news - web sites) said Friday.

Normally, I wouldn't be surprised by a campaign finance indictment, simply because the law is so damned confusing that it's almost impossible to follow. I don't think campaign finance laws are constitutional, in any event. But this indictment managed to surprise me because it alleges deliberate falsification of documents. And unless Hillary is preparing her legal team to take this case all the way to a Supreme Court that has already ruled the campaign finance laws Constitutional, well, it won't help her image much.

On a slightly different note, why is Hillary Clinton holding fundraisers in Hollywood, when her Senate seat is from New York?

The White House says that it is still planning to tackle the loophole in the McCain-Feingold campaign finance law that created the "independent" 527 groups. The "soft money" groups had a significant impact on the presidential election, bypassing political parties and candidates' campaigns.

Liberal leaning groups falling into this unregulated category raised twice as much money as their conservative counterparts. In all, the 527 groups collected and spent $535 million in 2004.

In the real world, we call this "free speech". But since neither Congress, the Supreme Court, nor the Executive have demonstrated any real willingness to respect that, we get proposals like this.

Just a few days before the release of the Rathergate report, CBS has uncovered some bloggers who received funding during the election campaign from candidates they were supporting. While the bloggers in question should have disclosed their affiliation with the candidate, they weren't exactly claiming to be objective either.

Of course, the remedy CBS has in mind is regulating political speech on the Internet. Being a media organization themselves, you'd think they might have read the First Amendment. But after the humiliation that the Democratic party received this election, often at the hands of the so-called pajamahadeen, there will be a big push to regulate -- and thus neuter -- the whole Internet-free-speech idea. So keep your eyes open.

Overlawyered has a brief description of a case in Illinois where a judge has issued an injunction to halt the broadcast of an ad relevant to an election for the state Supreme Court. The ad offers to provide information about who has contributed money to the candidates.

U.S. District Judge Colleen Kollar-Kotelly in Washington ordered the FEC to rewrite 15 rules, including regulations exempting Internet ads from the 2002 campaign finance law. The law bars outside groups from coordinating television and radio advertisements with candidates.

``To exempt certain types of communications runs completely afoul of this basic tenet of campaign finance law,'' Kollar- Kotelly said in a 157-page ruling. Two members of Congress filed the complaint that led to the decision.

Before anyone panics, this appears to be regulation of what the candidates can do (and how they can pay for it) rather than regulation of what individuals can say. But even knowing that it's still extremely bad. Groups like the NRA and Gun Owners of America are regulated under these rules for traditional media advertisements, and this ruling is likely to extend those rules into the Internet realm once the FEC rewrites their rules.

The FEC has released draft rules for campaign activity on the internet.  The Democracy Project has a post explaining the rules as they apply to bloggers.  There's still time to comment, and the proposed rules are not ideal. 

UPDATE: Eugene Volokh has also commented on the "personally-owned" problem.  I suspect I am fairly unusual in that this blog is both written and hosted on a computer I personally own.  

UPDATE:
Here's the relevant text of the proposed rule for bloggers:

No expenditure results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services that he or she personally owns for the purpose of influencing any Federal election, whether or not the individual?s activities are known to or coordinated with any candidate, authorized committee or party committee.

Another big unanswered question: What about revenue from advertising on the blog?  Is that "compensation"?  If so, would this change fix it?

No expenditure results where an individual, acting independently or as a volunteer, without receiving compensation from a candidate, authorized committee, or party committee, performs Internet activities using computer equipment and services that he or she personally owns for the purpose of influencing any Federal election, whether or not the individual?s activities are known to or coordinated with any candidate, authorized committee or party committee.

Problem: what if the blogger donates a blogad?  What if the  [regulated-entity] buys a blogad AND the blogger writes about the [regulated entity]?  The Exempt Media can do it.  Why can't we? 

This illustrates the problem with regulating free speech.  There are always grey areas with unclear rules and stupid interpertations.  Free speech is free speech, and if you regulate it, it's no longer free even if there are hoops to jump through for private citizens.  Why is this true?  Private citizens can't afford pay lawyers to tell them what the hoops are!

We do not need campaign finance reform.  We need repeal.

UPDATE: Captain's Quarter's makes many of the same points.  He also raises the question of whether a link from a [regulated entity] generates a presumption of coordination.  I linked to the website of a Presidential candidate in the last election.  And I got linked back.  Is this compensation? 

As you may recall, some time ago the FEC's Bradley Smith warned the blogosphere (by way of Declan of PoliTech) that the FEC was drafting restrictive regulations for free speech on the Internet -- regulations that would dramatically limit what blogs were allowed to do, and impose strict requirements on how they did it.  The FEC was doing this because of a court order which the Democrats on the panel refused to appeal. 

Shortly thereafter, one of the other members of the commission got press time in an attempt to refute Bradley's claims and reassure the blogosphere that the FEC respected free speech and that regulations would not be burdensome.

So the talking heads are differing over what was planned.  That's business as usual in government; who can tell who is actually correct?

Thanks to the blogosphere, now we can.  We've seen the rules released after the blogswarm, and now we can read the rules as they would have been without us.  And they would have been even worse than Bradley Smith predicted. 

Never trust the government. 

A blogger testifies before the House on campaign finance.  He's in favor of a "media exemption" that includes bloggers.  I don't buy that.  The 1st Amendment does not contain a media exemption; it states that the freedom of speech and the press are protected.  Those are means of communication (spoken and written), NOT a special class of protected citizens!

Sometimes, the best way to demonstrate the absurdity of a decision is to follow it to the letter.  Michelle Malkin has an excellent example of this principle.

The Heartless Libertarian has an example of campaign finance in action within his own Washington State.  It's a state law, not McCain-Feingold, but it's still objectionable... and it's also a pretty good measure for what McCain-Feingold will do to elections when applied to ordinary people.

In comments submitted to the Federal Election Commission last week, as the regulatory body seeks advice on how to apply the McCain-Feingold law to the Internet, the enemies of the First Amendment had to walk a fine line. On one side, the politicians in them wanted to genuflect to democracy, open debate and all the new citizen journalists who seem to wield so much influence these days. On the other side, however, the clean-government obsessive-compulsives in them knew that freedom's just another word for something new to regulate.

Ryan Sager has some wise words for us on campaign finance "reform" and the Internet, following the close of the FEC's public comment period.

... on the role of campaign finance "reform" legislation in the last election.  As predicted, it was a dismal failure:

So, how did it turn out? For the first time ever, both major party candidates for president declined to accept public financing (and the contribution limits that would come with it). A new category of political committees, called 527s, sprang up like weeds to accept and spend the ?soft money? that could no longer go to the parties. Many were created before the reform bill even passed, in many cases by some of the same politicians who were supporting it.

In other words, the bill ignored reality. Money in politics is like water flowing downhill. Erect barriers if you wish, only to slightly alter its course as it flows to its ultimate destination. They don?t say money is the ?mother?s milk? of politics for nothing. The Supreme Court recognized that truth in 1976 with its decision in Buckley v. Valeo, stating essentially that, in politics, money equals speech (and we?ve got that little thing called the First Amendment).

By attacking soft money, campaign finance reform essentially targeted funds that were raised and spent by associations of average Americans seeking to get involved in the political process. In other words, special interests.

Do you want to know who the special interests are? Look in the mirror. Look at your neighbor across the street. Look at your friend who owns a small business and joined an independent business group, or your parents or grandparents in AARP.

There are only a few ways for an ordinary American to make a difference in a political campaign.  If you don't have a real job and don't need one, you can volunteer your time to the campaign.  If you know the politician or have some election-related skill, you can attempt to get yourself hired in a position with pay (and you had better be prepared if your candidate loses).  If you've got a lot of time and a little bit of technical competence, you can set yourself up with a blog and hope for popularity.

Or, you can donate money to a poltician, or to a special interest group (through dues and the like), or an issue-oriented group, and try to make a difference that way.  For most people, that's the only realistic option to go above and beyond voting.  And trying to take it away through campaign finance laws is just another way of making incumbent politicians less accountable to the people they supposedly represent.