Patterico's Pontifications


“Reassuring” Remarks on FEC Regulation That Should Deeply Trouble You

Filed under: Civil Liberties — Patterico @ 9:28 pm

Why should FEC regulation of the internet concern you? More importantly, why should we not respond to the threat by asking for an exemption from such regulation? For the answer, just read these allegedly reassuring remarks by Russ Feingold, with the troubling parts in bold:

The FEC must tread carefully in the area of political communications on the Internet. Political news and commentary on the Internet are important, even vital, to our democracy, and becoming more so. For starters, the FEC should provide adequate protection for legitimate online journalists. Online journalists should be treated the same as other legitimate broadcast media, newspapers, etc. and, at this point, I don’t see any reason why the FEC shouldn’t include legitimate online journalists and bloggers in the “media exemption” rule.

Are you comforted by this? Russ Feingold thinks you should be able to express your mind on the internet — if the government views you as a “legitimate” online journalist, that is. At least that’s Feingold’s view “at this point” — it could always change, you know.

Are you starting to get it? This is why you don’t ask the government for permission to express your views. Because if you ask, you concede that government has the right to decide what is deemed “legitimate.” And government might change its mind.

As Dan Lovejoy aptly says: “Creating an exemption recognizes the validity of the law in the first place.” That is why I have argued against signing the online petition asking our masters to grant us permission to speak.

When the Supreme Court upheld McCain/Feingold, I called it the repeal of the First Amendment. Many thought this was hyperbole. But it wasn’t. Everything we are discussing now flows straight from the law.

I think some people are getting it. Baldilocks quotes my recent rant and says:

I think you may have a point, Counselor. Most of us–left and right–are in agreement that McCain-Feingold is unconstitutional, but I think that we were beginning to resign ourselves to its existence, which is reflected in the letter. You may just be shaking us awake.

Excellent. That is exactly what I hope to do.

Baldilocks then says:

So now what? How do we legally dispatch McCain-Feingold?

You’re the lawyer, dude.


So: what do we do about it? I discuss that in the next post.

UPDATE: Welcome to Instapundit readers, and thanks to Prof. Reynolds for the link.

29 Responses to ““Reassuring” Remarks on FEC Regulation That Should Deeply Trouble You”

  1. The obvious solution (IMO) is to blog from a hoisting service situated in a foreign country using a pseudonym – as suggested by Samizdata

    Alternatively you link to a foreign blogger (e.g. me) who coincidentally links to the campaign in question

    Francis (74e465)

  2. This is the time and place for a little civil disobedience.

    My response to ye ole BrownShirts will likely be, “Go f*** yourself.”

    It’s amazing that they can propose half this stuff with a straight face.

    Partisan Pundit (98cce9)

  3. Patterico, I’m not sure if you ever understood my point: I never argued that we should passively accept the law, nor that we should seek the exemption in lieu of trying to overturn the entire law somehow. I only said that at this point, we must temporize; we have to vamp until ready to strike effectively at what we all agree is an unconstitutional law that the Supreme Court has found constitutional.

    If you have good and workable suggestions in the follow-up post, I’ll champion them to the hilt and do everything in my power to help.

    But signing the online petition will not in the slightest impede efforts to overturn the BCRA itself. It doesn’t work that way. Congress isn’t going to say, “well, we thought people were upset about the law taking away their freedom of speech — but now that we see many people demanding that the FEC keep its hands off the internet, we’re reassured that people love McCain-Feingold!”

    We should pursue both tacks. As well as the third: coming up with more lawsuits on different grounds, giving the Supreme Court more opportunities to redress the terrible wrong they did.

    All I want is something effective, not just a beau geste that makes one person feel good but accomplishes exactly nothing in the real world.

    (And of course Russ Feingold believes that only congressionally approved voices should be heard; the only wonder is that he’s so tone deaf, he actually said it out loud. I don’t think anybody here disagrees that that was the intent of Feingold, McCain, Shays, Meehan, and everyone who voted for the act. Unfortunately, that amounts to a huge chunk of Congress, plus five justices… so whatever we do, it must be cleverer than last time.)


    Dafydd (df2f54)

  4. Patterico, are you an anarchist?

    billy-jay (6e752e)

  5. As much as any other dubious Supreme Court ruling over the last 40 years, the ruling upholding McCain-Feingold reflects the dangerous subjectivity of a court run amok. Term limits, anyone?

    D. Carter (91a063)

  6. “Michelle Malkin points to a letter to which one can put one’s name and send it off to bureaubots in supplication over the matter of FEC regulation of weblogs.

    Now hear this: it is not my business to go asking them anything about the matter, any more than they made it their business to ask me about it.

    I will simply break their law.

    That is all.”

    (Me — March 11, 2005)

    Billy Beck (bece54)

  7. I’ve already told them to come and get me. And I wrote to my Congressman and Senators to tell them they need to repeal this unconstitutional law. While freedom is breaking out all over the world, my representatives are not protecting those we already have here.

    Mike (516ba1)

  8. The FEC / Blogs issue
    More info on this thing keeps cropping up…either from blogger commentary, or the idiotic emanations from either the govt/and/or the McCainiac campaign reform crowd. – Patterico says the govts. reassurances should reassure no-one. – Bob Bauer has an i… (89b130)

  9. If linking to a site is a contribution to a campaign, then usforeigners cannot link to a site as we are not allowed to ocntribute to a US campaign.
    Intersting thought eh?

    Tim Worstallt (0611c4)

  10. Two options:
    1) One more freedom-oriented Supreme Court judge and the 5-to-4 McCain-Feingolg decision will go the other way. So, continue blogging as usual, wait, appeal, and win.
    2) [Suggestion number two deleted by Patterico. Please, no comments suggesting violence against specific individuals — even if made clearly in jest, as this one obviously was (it suggested going back in time to terminate a certain Supreme Court Justice).]

    Just a Flesh Wound (2814c5)

  11. Hey–it’s the Internet, right?

    When I signed up for a blog, nobody asked me where I live. When I submit a post, nobody asks me where I live. Back in the days of radio there were “pirates” who broadcast from ships 12 miles off the coast of the U.S.–there is substantial legal precedent that comments (and broadcasts) made by U.S. citizens from outside the U.S. are beyond the reach of federal regulators.

    In other words, any FEC regulation of political speech on the Internet is simply pointless: the Internet does not recognize geographical boundaries. I know that Glenn Reynolds lives in Tennessee; I know that he has (theoretical example) written at length on the mental and moral deficiencies of Lyndon LaRouche. I do not know whether he wrote those comments while within the boundaries of the United States. Until and unless I can prove that he wrote those comments within the boundaries of the U.S. federal regulations do not apply.

    If the feds try to ban political speech on blogs hosted in the U.S., they’ll just kill the blog hosting industry here and move it offshore–until the inevitable lawsuit likening blogs to pamphleteering reaches the U.S. Supreme Court.

    On the other hand: maybe having this kind of law passed would be a positive thing. Hundreds of college students would have fistfights for the right to file the first lawsuit, because whoever appeared as the plaintiff in the inevitably landmark BoffoBlogger v. Whathisname case would be able to get into his pick of law schools….

    John Murdoch (dd8e75)

  12. You know, there used to be a saying to the effect it was a bad move to mess with anyone who bought ink by the barrel.

    McCain and Feingold will ultimately cross some imaginary line with their demands, the courts lose respect for their law, and it will be rolled back. Until then, bloggers should do their best to help them cross that line. Make sure that McCain and Feingold get ALL THE PUBLICITY THEY DESERVE.

    For example, a website with an email address guaranteeing anonymity to McCain’s and Feingold’s staffers for tips on the good Senators’ financial proclivities? McCain has a number of staffers, almost none of whom are from Arizona and all of which go home at some point. As they leave, I wouldn’t be surprised if some of them wished to unburden themselves of the secrets of a man who is known on the Hill for being a horrible boss. (Many folks may remember that McCain is the gentleman who took mad cash from an S&L crook named Keating in the 1980’s to smooth over troubles for him when the Feds came knocking.)

    There is a reason the good Senator wants to silence people from talking about him, and it’s that he has things worth talking about. Perhaps it’s time to show Messrs McCain and Feingold exactly what free speech can do?

    Some Guy (20d23e)

  13. MORE UN-REASSURING REASSURANCES on F.E.C. regulation of blogs.
    InstaPundit.Com: “MORE UN-REASSURING REASSURANCES on F.E.C. regulation of blogs. “…

    PoliWatch - Political News (e0bff2)

  14. This is a non-issue. The government can try and regulate political speech on the Internet all they want. In the long view it does not matter. It is doomed to fail.

    Everyone should continue to link to whomever and blab about whatever they like. They should not discuss McCain/Feingold or even acknowledge that it exists. As soon as the first blogger is fined or thrown in jail for content, then we will have an issue. However, at that point, the issue will effectively be moot.

    There are certain rights that all Americans hold dear close to their hearts and will never stand for giving up. Free speech is arguably the number one right people hold dear. The American public will never stand for people being fined or thrown in jail over free political speech. At this point, any politician who signed on to or even looked at McCain/Feingold is dead meat. They will be voted out of office ASAP if not out rightly recalled.

    McCain/Feingold is a very bad and unconstitutional law. I know it, you know it, congress knows it. Unfortunately, a full frontal assault trying to repeal this horrible law is not likely to succeed at this time as the public sees McCain/Feingold as a good thing because of the “special interest money” pseudo-issue. We must let any regulation that is going to happen, happen. Massive public outrage and support for free political speech is the only way to get this horrible law scrapped.

    Up to this point, there has been very little public outcry over the fact that the average Jane and John Doe may have their free speech rights restricted because the media simply is not reporting on it. I suspect the media is not reporting on this because it plays into their hands as they are exempted from McCain/Feingold and they view bloggers as competition/wannabe journalists.

    We must DO NOTHING about this law. We must NOT ACKNOWLEDGE this law exists. We must IGNORE THE LAW and even FLAUNT IT.

    We must let things happen to build that outrage. There is no other way to get McCain/Feingold off the books. Some people may spend time in jail or be put through financial hardship, but these injustices will be addressed and corrected. The public will see to that.

    Gogman (6893a7)

  15. Your Fleeting Free Speech Rights
    Over at Slate, Jacob Weisberg asks, “Who is a journalist?”

    [M]edia outfits including the Times insist on the need for a federal “shield law” that would create a privilege for journalists akin to privileges for lawyers, doctors, and priests.


    >bt: Evan's Journal (9e57b9)

  16. Russ Feingold: I Didn’t Do Nuthn’!!!
    Failure is an orphan, the cliché may claim, but Russ Feingold is its daddy. Via Instapundit, Patterico links to (with commentary) a blog post by Sen. Feingold. The Wisconsin Senator has one purpose, it seems to me, in writing this…

    Democracy Project (b6dd25)

  17. Big Brother Tries to Reassure, and Fails Miserably
    Russ Feingold has tried reassuring bloggers about upcoming FEC regulations sparked by his so-called “campaign finance reform” legislation.

    Cyber-Conservative (11ee8e)

  18. Like many bloggers….
    ….Patterico has been blogging about the FEC and Campaign Finance Reform. He warns about asking the government for…

    Media Lies (11ee8e)

  19. FEC regulation of blogs
    Some unreassuring reassurances from Sen. Russ Feingold (Patterico, Mar. 15; via Instapundit)(see Mar. 4)….

    Overlawyered (ba4781)

  20. Hmmm .. note also the term “legitimate media, newspapers….”

    Are we going to have to prevent the publication of illegitimate newspapers? You know, those papers and other media which support particular candidates and misuse their 1st Amendment rights to do puff pieces for one side and hack jobs against the other.

    Surely this is a rising new danger for the Republic! NOT!

    Kevin Murphy (6a7945)

  21. I have made a “Defy the FEC” pledge and badge for those of use wo don’t want to go hat-in-hand to the FEC for permission to blog. Here it is.

    Dan (6830f3)

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  27. […] Most recently, they have purported to require disclosure of payment for products one endorses. They talk about giving a “media exemption” for us bloggers to say what we like about political candidates without having our posts be […]

    Patterico's Pontifications » Why Yesterday’s Supreme Court Decision Was Right — A Rant (e4ab32)

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