Different River

”You can never step in the same river twice.” –Heraclitus

January 16, 2006


Filed under: — Different River @ 7:13 pm

Given today’s federal holiday, I’d like to reprise this post from last week.

Squashing Freedom of Speech

Filed under: — Different River @ 1:30 am

Here’s “campaign finance reform” in action in the state of Washington, as reported by Brian C. Anderson in City Journal:

Early in 2005, the Democrat-controlled legislature passed—and Democratic governor Christine Gregoire signed—a bill boosting the state’s gasoline tax a whopping 9.5 cents per gallon over the next four years, supposedly to fund transportation projects. … [S]ome citizens organized an initiative campaign, as Washington law allows, to junk the new levy: No New Gas Tax.

Two popular conservative talk radio hosts, Kirby Wilbur and John Carlson, explained why the gas tax was bad news and urged listeners to sign the 225,000 petitions necessary to get the rollback initiative on the November ballot, though they played no official role in the campaign and regularly featured on their shows defenders as well as opponents of the tax hike. …

Meantime, however, a group of pro-tax politicians sued No New Gas Tax, arguing that Wilbur’s and Carlson’s on-air commentaries were “in-kind contributions” and that the anti-tax campaign had failed to report them to the proper state authorities. The suit sought to stop NNGT from accepting any more of these “contributions” until it disclosed their worth—though how the initiative’s organizers could control media discussions or calculate their monetary value remained unclear. The complaint also socked NNGT with civil penalties, attorneys’ fees and costs, and other damages. Even more offensively, to litigate the suit the politicians hired a private law firm, Foster Pepper & Shefelman, which serves as bond counsel to Washington State. The firm, which represents unions, hospitals, and retirement funds among its other clients, could thus clean up from the state’s plan to sell gas-tax-backed bonds. Appearance of corruption, anyone?

If you like reading — or writing — about politics on blogs, you could be next:

Campaign-finance reform now has the blogosphere in its crosshairs. When the Federal Election Commission wrote specific rules in 2002 to implement McCain-Feingold, it voted 4 to 2 to exempt the Web. …

But when the chief House architects of campaign-finance reform, joined by McCain and Feingold, sued—claiming that the Internet was one big “loophole” that allowed big money to keep on corrupting—a federal judge agreed, ordering the FEC to clamp down on Web politics. Then-commissioner Bradley Smith and the two other Republicans on the FEC couldn’t persuade their Democratic colleagues to vote to appeal.

Are the hundreds of political blogs that have sprouted over the last few years—twenty-first-century versions of the Revolutionary era’s political pamphlets—“press,” and thus exempt from FEC regulations? Liberal reform groups like Democracy 21 say no. “We do not believe anyone described as a ‘blogger’ is by definition entitled to the benefit of the press exemption,” they collectively sniffed in a brief to the FEC. “While some bloggers may provide a function very similar to more classical media activities, and thus could reasonably be said to fall within the exemption, others surely do not.” The key test, the groups claimed, should be whether the blogger is performing a “legitimate press function.” But who decides what is legitimate? And what in the Constitution gives him the authority to do so?

A first, abandoned, draft of proposed FEC Web rules, leaked to the RedState blog last March, regulated all but tiny, password-protected political sites, so bloggers should be worried. Without a general exemption, political blogs could easily find themselves in regulatory hell. Say it’s a presidential race, Condi Rice versus Hillary Clinton. You run a wildly opinionated and popular group blog—call it No to Hillary—that rails daily about the perils of a Clinton restoration and sometimes republishes Rice campaign material. Is your blog making “contributions” to Rice? Maybe. The FEC says that a “contribution” includes “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office” (my italics). If your anti-Hillary blog spends more than $1,000, you could also find it re-classified as a “political committee.” Then you’ve got countless legal requirements and funding limits to worry about.

And if they get really nasty, “spending on your blog” could be defined to include the purchase price of your computer, which is quite likely to put you over some relevant limit even if you host your blog for free on Blogspot.

And if you think this is purely hypothetical, ask Leo Smith, who was told precisely that when he put some material on a web page urging people to vote against Rep. Nancy Johnson (R-CT) when she was running for re-election — and this was back in 1998, even before McCain-Feingold:

Underscoring the problem is an escalating debate over whether Web sites fall under a 1971 campaign disclosure law governing television advertisements. If so, sites promoting federal candidates or linking to official campaign sites might be required to disclose who is behind a site and report expenditures for erecting the site if they exceed $250.

A November 1998 opinion, for example, states that a Web site erected by Leo Smith of Suffield, Connecticut, fell under the disclaimer and reporting requirements. Smith’s site advocated the defeat of the Rep. Nancy Johnson (R-Connecticut), and endorsed her opponent, Democratic candidate Charlotte Koskoff.

In reference to Smith, the commission concluded that Web sites endorsing or soliciting funds for federal candidates are considered political advertisements and must disclose the full name of the site’s creator, state whether the opinions expressed on the site are authorized by the candidate, and report expenditures.

“The Commission notes that there are minimal costs associated with creating the Web site,” the opinion stated. “These overhead costs would include, for example, the fee to secure the registration of a domain name, the amounts you invested in your hardware, and the utility costs to create the site.”

So they want to include not only the cost of your computer, but the cost of the electricity to run it when you are posting to your web site. As the FEC itself explains (PDF link):

Mr. Smith created the web site in September 1998 to protest House Republican efforts against President Clinton. On the site, he advocated Ms. Koskoff’s election and the defeat of her opponent, GOP Representative Nancy Johnson. …

Mr. Smith asserts that he spends no money in maintaining the web site, and that it cost him nothing to create it. …

The definition of expenditure includes anything of value made to influence a federal election. 2 U.S.C. §431(9). Mr. Smith’s web site is considered something of value because it advocates the election of one federal candidate and the defeat of another. Thus, any costs associated with construction and maintenance of the web site are expenditures. (Note that, although the web site includes express advocacy, under 2 U.S.C. §431(9), a communication does not necessarily have to contain express advocacy in order to qualify as an expenditure.) Whenever a person makes an expenditure to finance a communication that expressly advocates the election or defeat of a clearly identified candidate through general public political advertising, the communication must include a disclaimer. 2 U.S.C. §441d. The disclaimer must state who paid for the communication and, in the case of an advertisement that was not paid for by the candidate’s committee, who authorized it. In five advisory opinions, the Commission has concluded that communication via a web site is a form of communication to the general public. AOs 1997-16, 1996-16, 1995-35, 1995- 33 and 1995-9. Thus, Mr. Smith’s web site must include a disclaimer stating who paid for the communication and whether or not it was authorized by any candidate. Mr. Smith’s current attempt at a disclaimer is insuffi- cient. He only identifies himself as an “Independent voter in the Sixth District.” He must use his full name in the disclaimer.

The Commission also concludes that — contrary to Mr. Smith’s assertion — there are costs associated with this web site. A portion of the overhead costs could be apportioned to each web site created by Mr. Smith. Those costs include the domain name registration fee, the amount invested in the hardware (computer and peripherals) that created the web site and the utility costs associated with creating and maintaining the site. If Mr. Smith’s web site activity on behalf of the Koskoff campaign was completely independent of the campaign, then he would be re- quired to file independent expendi- ture reports with the Commission if the total value of the expenditures exceeded $250 in 1998. 2 U.S.C. §§431(17) and 434(c), 441a(a)(7)(B). If, however, Mr. Smith’s web site activity was done in cooperation, consultation or concert with that campaign, then the campaign would be required to report the expenditure as an in-kind contribution from Mr. Smith. 2 U.S.C. §§431(8)(A)(i), 434(b)(2)(A) and 434(b)(3)(A).

And that was the situation before McCain-Feingold. Now, it’s even worse — including a disclaimer is not enough; if it’s political speech about an election, you simply can’t say it within 60 days prior (30 days for a primary).

Warren of Coyote Blog notes:

I find this [the ruling in the Washington case above] offensive. And expect similar “in-kind” donation logic to be coming to a blog near you. And while Democrats may short-sightedly cheer as long as this logic is applied against conservative talk radio, this “in-kind” logic is a Pandora’s Box that will be very hard to close. For example, lets say my wife’s reading club organizes 200 women to go out to a 3-hour rally to support Hillary Clinton. In doing so, the club just mobilized 600 “man”-hours for Ms. Clinton, which at $10 an hour, which is a low value for a professional person’s time, is worth $6000. Have they violated the law? Or, lets say a lawyer who normally bills $300 an hour spends all day Saturday and Sunday marching in a rally for George Bush. Is he over the limit?

We are in the absolutely terrifying and historically unprecedented position of having had Congress pass a law that no citizen (except a few media people and a few government licensed political groups) can criticize a member of Congress by name within 60 days of an election. And the Supreme Court signed off on this travesty!

He’s right — when the FEC comes around to arrest bloggers for blogging about elections, you won’t be able to go to the Supreme Court, since they already ruled in the case of McConnell v. F.E.C. that the “government interest” in keeping money out of politics takes priority over the First Amendment freedoms of speech and press. Way back in 2003. If it makes anyone feel any better, Justice Clarence Thomas wrote a blistering dissent, which read in part:

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Nevertheless, the Court today upholds what can only be described as the most significant abridgment of the freedoms of speech and association since the Civil War. With breathtaking scope, the Bipartisan Campaign Reform Act of 2002 (BCRA), directly targets and constricts core politi- cal speech, the “primary object of First Amendment protection.”

It is not difficult to see where this leads. Every law has limits, and there will always be behavior not covered by the law but at its edges; behavior easily characterized as “circumventing” the law’s prohibition. Hence, speech regulation will again expand to cover new forms of “circumvention,” only to spur supposed circumvention of the new regulations, and so forth. Rather than permit this never-ending and self-justifying process, I would require that the Government explain why proposed speech restrictions are needed in light of actual Government interests, and, in particular, why the bribery laws are not sufficient.

The right to anonymous speech cannot be abridged based on the interests asserted by the defendants. I would thus hold that the disclosure requirements of BCRA §201 are unconstitutional. Because of this conclusion, the so-called advance disclosure requirement of §201 necessarily falls as well.

The chilling endpoint of the Court’s reasoning is not difficult to foresee: outright regulation of the press. None of the rationales offered by the defendants, and none of the reasoning employed by the Court, exempts the press. … Media companies can run procandidate editorials as easily as nonmedia corporations can pay for advertisements. Candidates can be just as grateful to media companies as they can be to corporations and unions. … Media corporations are influential. There is little doubt that the editorials and commentary they run can affect elections. Nor is there any doubt that media companies often wish to influence elections. One would think that the New York Times fervently hopes that its endorsement of Presidential candidates will actually influence people. What is to stop a future Congress from determining that the press is “too influential,” and that the “appearance of corruption” is significant when media organizations endorse candidates or run “slanted” or “biased” news stories in favor of candidates or parties? Or, even easier, what is to stop a future Congress from concluding that the availability of unregulated media corporations creates a loophole that allows for easy “circumvention” of the limitations of the current campaign finance laws?

Although today’s opinion does not expressly strip the press of First Amendment protection, there is no principle of law or logic that would prevent the application of the Court’s reasoning in that setting. The press now operates at the whim of Congress.

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