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 press
release to a mailing list, depending on the details, could be punished by fines.
The real question is: Would a link to a candidate's page be a problem? If
someone sets up a home page and links to their favorite politician, is that a
contribution? This is a big deal, if someone has already contributed the legal
maximum, or if they're at the disclosure threshold and additional expenditures
have to be disclosed under federal law.
Certainly a lot of bloggers are very
much out front. Do we give bloggers the press exemption? If we don't give
bloggers the press exemption, we have the question of, do we extend this to
online-only journals like CNET?
How can the
government place a value on a blog that praises some politician? How do we
measure that? Design fees, that sort of thing? The FEC did an advisory opinion in the late
1990s (in the Leo Smith case) that I don't think we'd hold to today, saying that
if you owned a computer, you'd have to calculate what percentage of the computer
cost and electricity went to political advocacy.
How about a hyperlink? Is it worth a penny, or a
dollar, to a campaign? I don't know. But I'll tell you this. One thing the
commission has argued over, debated, wrestled with, is how to value assistance
to a campaign.
Corporations aren't allowed to donate to campaigns. Suppose a
corporation devotes 20 minutes of a secretary's time and $30 in postage to
sending out letters for an executive. As a result, the campaign raises $35,000.
Do we value the violation on the amount of corporate resources actually spent,
maybe $40, or the $35,000 actually raised? The commission has usually taken the
view that we value it by the amount raised. It's still going to be difficult to
value the link, but the value of the link will go up very quickly.
It's going to be a battle, and if nobody in
Congress is willing to stand up and say, "Keep your hands off of this, and we'll
change the statute to make it clear," then I think grassroots Internet activity
is in danger. The impact would affect e-mail lists, especially if there's any
sense that they're done in coordination with the campaign. If I forward
something from the campaign to my personal list of several hundred people, which
is a great grassroots activity, that's what we're talking about having to look
We're talking about any decision by an individual
to put a link (to a political candidate) on their home page, set up a blog, send
out mass e-mails, any kind of activity that can be done on the Internet.
Again, blogging could also get us into issues about online journals and
non-online journals. Why should CNET get an exemption but not an informal blog?
Why should Salon or Slate get an exemption? Should Nytimes.com and
Opinionjournal.com get an exemption but not online sites, just because the
newspapers have a print edition as well?
Point #1: Both Righty and Left blogs will be furious about it and will be creative about fighting and/or subverting this.
Point#2: Who (and how) is going to find and fine the minimum of 1-2 million blogs that are likely to have ads next campaign cycle?
Point#3: At least half of the blogs are untraceable to their owners e.g., Blogger blogs unless you put your name on it.
Point#4: You can set up multiple blogs, your most popular one linking to the new ones that actually do have ads on, but are not traceable to you.
Point#5: We can win by sheer numbers and ingenuity. If one blogger goes to jail, a million collects money for bail AND protests and adds MORE ads to their blogs and builds more blogs and adds ads to those. By the time they start figuring out how to deal with this, the election is over. They are dealing with a Long Tail here - a long tail like the one possesssed by a Komodo dragon - a deadly weapon.