We Were So Busy Telling McCain & Feingold To Go Screw Themselves and the Campaign Finance Reform Laws They Rode In On…

…that we forget to note the best news so far for politics in America:

The Federal Election Commission decided Monday that the nation's new campaign finance law will not apply to most political activity on the Internet.

In a 6-0 vote, the commission decided to regulate only paid political ads placed on another person's Web site.

The decision means that bloggers and online publications will not be covered by provisions of the new election law. Internet bloggers and individuals will therefore be able to use the Internet to attack or support federal candidates without running afoul of campaign spending and contribution limits….

Commissioners said the new rule also specifically changes several other FEC regulations to make it clear that Internet activity, such as blogging, e-mail communications and online publications, is not covered by the campaign law.

Now if only the FEC would rule against all campaign law as infringements on the First Amendment…

More here.

Former FEC head Brad Smith called bullshit on John McCain's War on Political Speech in the December 2005 Reason. Read all about it here.

Comments

[Sandy]

So the principle is left, but the specific instance that would cause a political backlash is, for the time being, not going to be enforced. Since the Internet is communication and has most of the properties of, say, TV or pamphleteering, I don't see how this restriction will hold up in court if candidates from outside the party mainstream continue making inroads, causing the current bigwigs to sue.

OK, it's nice that nobody's decided to cut the string on the sword now, but I'm still a bit uncomfortable with the support structure and supercranial positioning of that big pointy thing.

[Dr. Kenneth Noisewater]

I suppose this is good news, insofar as this regulation is consistent with what goes on now in print and broadcast media. If you own a TV station, newspaper, or web page, you can say whatever you want, but if you want to buy time on someone else's channel or buy space on someone else's newspaper or blog, you've got to fill out your forms in triplicate and ask "Mother, may I?" The fact that this distinction makes a difference as to whose speech is regulated and whose is not still bothers me a great deal.

[Bnerd[TM]]

So, apart from the short-term benefits, how is it a good thing that executive branch TLAs can simply decide what laws apply to?

For me that sounds more like YAEO (yet another executive overreach) than good news. In the long term.

Which, BTW, "we" won't be all dead in, presuming we're not the last generation, ever.

[Pro Libertate]

It's okay, Sandy, there's a whole horsehair holding up that Damoclean sword over your head. No big deal.

[SmokingPenguin]

Is it possible that the logical inconsistency of the law could cause it to be overturned?

[Ghost With Sincere Questions]

I honestly don't know what to make of all the campaign finance stuf I read at Reason online. It may be one of those issues that the people funding the website care about more than the readers. On the other hand, HnR commenters seemed pretty fired up about FEC related issues. Please understand that I have no agenda here, but do have a couple campaign finance questions:

1. Do HnR'ers think that it should be legal to bribe a government person?

2. Assuming government bribery is supposed to be illegal, then what is the difference between bribery and a campaign contribution? How do you tell the 2 situations apart?

[Anonopotomous]

I have a hard time reading this as good news. This is an admisitrative agency, so this vote should be read as "Well of course we have the power to regulate political speech, we just choose not to for now."

[thoreau]

Ghost-

In principle I have no problem with campaign finance regulations. The First Amendment wasn't written to protect bribery.

In practice, I am a great skeptic of implementation. The most recent laws have done nothing to stem the vast flow of money in politics, they have merely caused people to filter it through various committees and other entities to accomplish the same end. They haven't ended the flow of money, they've merely increased the volume of paperwork while placing restrictions on acts of speech that are not bribery, as the ACLU has pointed out.

So I oppose the practice, while supporting the principle.

[Anonopotomous]

Dear Ghost,

When a man in body armor kicks your door in and drags you away for speaking out against an incumbent within 30 days of an election, please come back and ask some more questions about whether your webpage was in fact a "bribe" because you had to spend money on webhosting to speak your mind.

[Ghost]

Anonopotamus:

I think you are assuming that I am some kind of fan of the FEC law as it now exists and/or is proposed. I am not. I have no strong opinion.

Trying to pull some kind of message out of your response, the best I can do is:

Campaign finance law should not be going after in-kind contributions and they should not be using disproportionate enforcement activity.

I can agree with that.

T., your comment was helpful in a practical sense. I am inclined to agree, but what I am really trying to tease out is something more jurisprudential:

If you were in charge of the law (legislator, police and judge & jury in one), how would you distinguish a bribe from a run of the mill cash contribution?

[thoreau]

Ghost, I have no answers to those questions. I've long thought about it, but I have no answers. Some things are obvious: When the money goes to a personal account rather than campaign expenses, it's obviously a bribe. When it goes to campaign expenses, however, I know of no easy way to draw that line. Which is not to say that lines can't be drawn, but I personally know of no easy way to do so.

[MP]

Ghost,

A bribe involves a specific arrangement. Being favorable to the interests of a constituent does not qualify as a bribe. Read this post for a good overview.

[fyodor]

Ghost,

The difference between campaign finance and bribery is very obvious and being a lawyer you know it damn well. It's called quid pro quo (sp?).

Now, proving quid pro quo may often be very difficult, and that's the real issue at the heart of your supposedly non-agendized post. (We'll see if you merely accept my answer or launch into a clearly agendized debate as you always do after making such disengenuously innocent posts.)

But just because it's difficult to prove bribery does not mean that laws designed to pro-actively make it more difficult are necessarily a good thing.

I remember a Dilbert cartoon in which the point-haired boss declares he's going to be more pro-active in the first panel, and then in the second panel he fires Dilbert. When Dilbert asks why in the third panel, the pointy-haired boss says, "I don't know. That's the problem with being pro-active." Not that there's never a time and place for being pro-active, but the law is generally not the time and place because it punished people who haven't done anything.

[Hakluyt]

Ghost,

One would ask this as an initial question: was there a quid pro quo?

BTW, laws which prohibit bribery are of a class quite different from campaign finance laws. Don't confuse the two. One is an after the fact law, the latter is supposedly an attempt to proactively attack bribery (given the political nature of such laws the latter claim is quite dubious).

Finally, I do not think that most libetarians would require that donations be private; in other words, a public registry wouldn't per se violate libertarian values. Indeed, it would allow for the sort of bottom up, dispersed "regulation" that we libertarians like.

[joe]

I'm Carpet Humpting Man, and I endorse this message.

[Ghost]

Yes, Fyodor: One of the related questions on my mind was: "how one would recognize a quid pro quo in real life?" Another ancillary question is whether a quid pro quo can be established by circumstantial evidence? If so, what would the circumstantial evidence look like in a typical case?

I do know that if you need to introduce direct evidence of a written or verbal contract to establish bribery (which is the standard I am hearing here so far), then most bribery will go undetected and unpunished. Maybe that (underinclusive) definition of bribery is the best we can do or maybe we can come up with some alternatives that are more palatable than the current system. That is what I am asking (not telling).

[Hakluyt]

The general (flawed) hypothesis is that only if we got money out of politics, or rather, if it came from a "neutral" or at least heavily regulated source, we'd get better laws, legislators, etc. However, if people are concerned about campaign contributions distorting politics, they should be even more concerned about a government which monopolizes who does and does not get money to finance campaigns, when and how they can campaign, etc.

The general solution to this is to shrink government and make it less intrusive, and thus less important in the decisions of the populace.

[Warren]

The FEC decided not to extend its oppression of the American People, hooray! Can't say I'm not surprised, but I'd rather live in a society of limited government where such action wouldn't have even been contemplated because it was forbidden by some fundamental principal clearly spelled out in a founding document.

Ghost,
I don't think distinguishing bribery from speech is unduly arduous, but if you find it so then yes; better to legitimize bribery than to abridge my free speech rights.

[R C Dean]

You'd think a bunch of libertarians would be happy that a potential encroachment on free speech was turned back.

But noooo. Because the great Libertini did not wave his magic wand and remove all governmental overreach in a single mighty swipe, all we get is more bitching.

And you people wonder why you are politically irrelevant.

[Pro Libertate]

The general solution to this is to shrink government and make it less intrusive, and thus less important in the decisions of the populace.

That's for danged sure. Not that I don't think that this campaign finance "reform" business is bad, but the root of government evil is too much freakin' power. Whether I'm oppressed by someone who is motivated by tender thoughts or oppressed by someone paid for and "owned" by some group makes no difference to me.

[fyodor]

Ghost,

I'm not a lawyer, but I would assume the criteria for evidence in bribery cases should be consistent with the criteria in other cases. Just because standards of evidence makes some cases hard to prosecute does not mean we make new laws which trample on people's rights to compensate. Well, not unless you can show that the consequences of using the current standards of evidence are somehow dire enough to justify the trampling of rights. None of us are going to like the results of the political process all the time, but I hardly see the emergency type of situation that should justify such desparate steps.

[Jersey McJones]

I fail to see how this effects most campaign law regarding things like campaign contributions. Money IS NOT speech.

JMJ

[fyodor]

RC Dean,

Methinks you're the crank calling others cranks. The original post called this a good thing, and the comments have almost all at least partly agreed albeit also expressing some reserve. Regarding the reserve, they have generally given reason for it, and it's inevitably a difficult issue for libertarians when some are allowed freedoms we believe should be granted to all. Should freedom for some be applauded for the numbers or 'quantitative' level of freedom, or should it sometimes be seen as an obstruction because it allows the government to play favorites and establishes principles that make genuine freedom more problematic? I generally lean towards the former, but I also look at each case individually. Anyway, I sure don't mind folks bringing up all perspectives on the matter. 'S why I'm here! And back to my first point, there's at least as much recognition that this was a good thing as "bitching" here. Which half of the glass are YOU looking at??

[RexRhino]

Assuming government bribery is supposed to be illegal, then what is the difference between bribery and a campaign contribution? How do you tell the 2 situations apart?

Well, supposedly, people are innocent until proven guilty. So if you can't tell a bribe or a campaign contribution apart, then there should be nothing illegal about it. The idea of restricting everyones right to free speech, because it is too difficult for you to figure out what is a bribe or not, is pretty damn insane.

Why is it, that people who normally support free speech, buy into this campaign finance crap.

[Sandy]

Fine, JMJ --

You can't contribute to any organization that educates the public on any issue that might have political implications or lobbies for or against any law or policy, not to mention candidate.

They're still free to do it, you just can't pay for it.

Tell me again how money isn't speech.

[Eric the .5b]

Works for me.

Money isn't speech, so why not ban donating to campaigns?

But also, money isn't food, clothing, or shelter, so why not ban welfare programs and private charity? And money isn't health care, so why not ban funding of medical care?

Huh. Money isn't a lot of things.

[Ghost]

So if you can't tell a bribe or a campaign contribution apart, then there should be nothing illegal about it.

This is how I suspect many HnRers really feel. Thanks to Rex The Rhino for having the courage to say it out loud.

I am not sure whether I agree with this approach or not. I will say that if we are to tacitly allow rampant bribery, then it should be legal (same w/ insider trading) IMO.

Anyway, thanx for the helpful reponses to my questions all who took the time.

[R C Dean]

Methinks you're the crank calling others cranks.

Nobody here but us cranks!

I mean, it IS the H & R comment section, after all.

[R C Dean]

Money IS NOT speech.

No, but speech (other than conversation) requires the expenditure of money.

Little experiment for you, JMJ - try to communicate for an entire day without using anything that requires the expenditure of money. That means no phone, no computer, nothing written on paper, nothing, in short, except your unaided voice.

Do you really want to limit your free speech rights to communications made with your unaided voice?

Why is it, that people who normally support free speech, buy into this campaign finance crap.

Because they support "free speech for me but not for thee."

[Paul]

The decision means that bloggers and online publications will not be covered by provisions of the new election law. Internet bloggers and individuals will therefore be able to use the Internet to attack or support federal candidates without running afoul of campaign spending and contribution limits....

Sorry, but this is simply untrue. All it takes is one attack on a particularly effective, and high profile blogger by an interested group, claiming that their comments amounted TO a campaign contribution, and it's over. Think it's crazy? Already happened to a talk radio host.

Oh sure, you'll get all the fancy, tortured justification in the world as to why the particular case of which I'm speaking counted. But that's the point: Once mans free speech is anothers perceived campaign contribution. This is a nice sentiment from the FEC, but its toothless. All that's needed is a sympathetic judge and a case filed at the right time.

[Paul]

I fail to see how this effects most campaign law regarding things like campaign contributions. Money IS NOT speech.

What I like about this sentiment is how one way it is. Why were the Maplethorp photos speech? Why is a picture of christ in a jar of piss speech? But yet we're told money isn't speech, and it seems so crystal clear to your average liberal.

Try this conundrum out for size:

If money isn't speech, is speech money?

According to the government, the answer would be 'yes':

http://seattletimes.nwsource.com/html/politics/2002586135_gastax27m.html

"Oh, but it's narrow and doesn't create an undue burden... and this gets those conservative wankers, so it's good."

I defended liberals on every stupid, tortured stretch of the term speech that ever came up, then when campaign finance reform came out, I thought "Oh, another chance to lock arms for civil liberties with my liberal counterparts"... Needless to say, it's been kinda lonely. In fact, defending the 1st amendment for us libertarians has been a very lonely endeavor.

[Bloggin' Ghost]

If money isn't speech, is speech money?
According to the government, the answer would be 'yes':

disagree. I think the government's answer would be that: (1) money is speech (at least sometimes); and (2) therefore, the premise of the question is incorrect.

That is one way out of the conundrum.

Another way is to say that money isn't speech and speech isn't money. Under this worldview, money contributions could and presumably would be regulated a whole lot more than speech. In other words, the government should seriously clamp down on contributions, but not on blogs. This way is nice for people who participate in blogs, but bad for people whose clients lobby.