updated 5/16/2005 4:02:45 PM ET 2005-05-16T20:02:45

Ordinarily, the U.S. Federal Elections Commission is preparing to hire some extra mailroom staff about now. But since the overwhelming majority of responses to the current invitation to public comment are likely to arrive electronically, there probably won't be many mail sacks to heave up to the boardroom.

At issue is the question of political blogs, or Web logs. Should they be regulated, and how? Above all, should they be subject to the spending caps inherent in campaign finance legislation?

In launching the consultative stage of what is set to be one of its most eagerly awaited and arguably important rulings, the FEC, at least partly, attempted to defuse the widespread criticism from an online political community agitated by what it sees as a distinct threat to its right to free speech.

When it was redrafting rules on campaign finance in 2002 following the adoption of McCain-Feingold, the FEC had opted not to regulate the use of the Internet for political activity.

Now, it is revisiting that approach — somewhat reluctantly — due to a federal court ruling last year, which said that leaving the medium out of the overall picture could undermine the whole purpose of the legislation.

With the unprecedented influence of bloggers of both political hues during the 2004 electoral cycles — specifically their role in fundraising — the issue has assumed a high profile within political circles. But it was an old-fashioned hand-delivered letter at the Politics Online conference in Washington, D.C. in March that helped crystallize opposition — from both the left and right — to any hint of a get-tough policy singling out blogs.

Michael Bassik, of consultants Malchow Schlackman Hoppey and Cooper, which ran the online side of John Kerry's presidential campaign, handed the letter, urging the FEC to clearly include blogs in the so-called "media exemption" from regulation, to the Commission's chairman, Scott Thomas, sparking the bipartisan Online Coalition petition.

The media exemption simply means, for example, that mainstream media outlets and news organizations are allowed to endorse political candidates without such endorsements being considered "contributions."

By the time the process ends with a public hearing in June, ahead of the final rule-making in the summer, the Commission will doubtless have sifted through tens of thousands of e-mails in response to proposals that seek to address perceived "loopholes" in campaign finance reform. However, it will likely back away from any specific regulatory crackdown on blogging.

There are some interesting questions to be explored that will likely not be resolved to everyone's satisfaction.

While a fundamental starting point, according to the FEC, is not to deter ordinary citizens from becoming involved in political activity, a big difficulty is placing any kind of accurate value on political activity conducted online. The Commission's responsibility is to regulate only monetary exchanges, as opposed to intellectual, as well as deciding whether or not such activity even rises to a level where the FEC would be concerned in any case.

Most blog activity — political or otherwise — is carried out by individuals on what would charitably be described as a shoestring budget. But what about the increasing numbers of popular blogs that are using or adopting various structured business models?

Then there is the question of whether the FEC is limited to regulating only paid-for political advertising on blogs. Or is everything that supports or endorses a particular candidate appearing on a blog considered to fall under existing campaign contribution ceilings and, as such, subject to regulation?

To what extent are blogs — as distinct from mainstream media's commercial online entities — protected, being primarily vehicles of individual personal opinion? Does the size of their audience make any difference?

Answering some of these questions requires the FEC effectively to define what a publication is, and, at risk of rubbing at an open sore, ask whether bloggers are "journalists." And if bloggers are journalists, are they entitled to different protections if what they produce is considered "news and opinion" instead of "advocacy."

Should bloggers who are directly paid by candidates — as opposed to, say, merely taking their advertising dollars — be required to disclose these payments or run some kind of disclaimer?

What, in effect, is the difference between a blogger who is paid, directly or indirectly, by a candidate for providing "Internet consulting services," for example, and someone who is actually employed by the campaign?

And how about those who are giving away their services as unpaid volunteers? Or those who are paid by a national party organization rather than by individual candidates?

Furthermore, what about bloggers who represent themselves as being independent private citizens, yet are basically political advocates operating in conjunction with a campaign? In the South Dakota senate race in 2004, for example, when John Thune ousted Democratic leader Tom Daschle, there was a clear impact of apparently independent bloggers who were operating as advocates for Thune without any kind of disclaimer.

The FEC proposals appear to give the majority of individual bloggers a pass, in the same way as forwarding a political message or a link to a candidate's site would not be considered a "contribution." But it could be argued that if the principle reason for Internet activity— be that blogging or, at the other end of the spectrum, mass e-mailing for fundraising purposes— constitutes direct advocacy on behalf of a specific candidate, then there is a case for exploring how that fits into the regulatory structure.

At the same time, simply saying that the genie is effectively out of the bottle and extending existing exemptions for the online world, in an all-bets-are-off approach, is tempting. But that, of course, has implications for other media forms.

As the FEC, which is evenly divided between Democrat and Republican members, said when releasing its proposals, the aim is to "ensure that political committees properly finance and disclose their Internet communications, without impeding individual citizens from using the Internet to speak freely regarding candidates and elections".

It's a delicate balance indeed.

© 2012


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