The political blogosphere is about to meet Washington's Wide World of Regulation. Can they talk?
Congress is still grappling with one big money issue from Campaign 2000: the independent political groups known as Section 527 organizations — like MoveOn.org and the Swift Boat Veterans for Truth — with their unregulated financing and in-your-face advertisements.
But policymakers still need to come to grips with another element in last year's campaign, one likely to have much greater long-term impact: campaigning on the Internet.
Inevitably, there's a cry for regulation. But six months after Election Day, the regulators don't have a legal or logical fix on what to do, or precisely why.
"Right now," says Federal Election Commissioner David Mason, a Republican, "I don't think we have any idea what we're trying to stop."
What is it that needs stopping?
Not the candidates themselves or the conventional party committees. They used Web sites to raise money and mobilize workers. But the FEC already has rules for that.
But what about independent sites? They promoted candidates, denounced other candidates and rallied activists. As Gen. Wesley Clark found out, it didn't even matter whether the targeted candidate had announced yet.
And bloggers. These on-line analysts and commentators, often running on shoestring budgets, may have had the best bang-for-buck ratio of the 2004 campaign. Liberal blogs spent days speculating about the mysterious square lump that showed up under President Bush's suit jacket at the first presidential debate. On-line conservatives pounced on questions about documents CBS News used in its report on President Bush's Vietnam War record. Without the blogospheric frenzy, it's hard to say either story would have had much staying power.
In two known cases, campaign money made its way to bloggers. Republican John Thune's Senate campaign in South Dakota paid two political bloggers, as the campaign eventually disclosed. Markos Moulitsas, author of the liberal Daily Kos blog, reported that he worked as a consultant to Howard Dean's campaign in the Democratic presidential primary.
Advocates of tighter campaign finance laws see the Internet as a political money loophole-in-waiting, one that the FEC needs to close before it's widely exploited.
Still, the advocates of regulation assure bloggers that nothing bad will happen to them personally. Trevor Potter, president of the Campaign Legal Center, says that when it comes to investigating private blogs, "I don't think you can reach it" under current law. He says he'd rather see a bloggers' code of ethics.
But to bloggers, the Thune campaign and Daily Kos cases show there's no real reason to send regulators into the universe of on-line political commentary. The Net, as any blogger will tell you, is different from other media. It's the last free public space in America, as some put it. Bloggers of all ideologies want the FEC to keep its hands off.
"If bloggers need lawyers, it's already a loss," says Mike Krempasky, a founder of RedState.org and an organizer of a bipartisan anti-regulatory coalition.
The basics of campaign finance law were laid down long before the Internet came along. In highly simplified form, here are a few of the issues that the FEC has to square with existing law:
1) Is Internet activity that incurs essentially no cost — say, an e-mail blitz — subject to regulation at all?
2) If campaign staffers blog, are their blogs instruments of the campaign?
3) If a campaign pays a blogger as a consultant, should the blog be required to carry a disclaimer?
The FEC used to say "no" to all of the above. But last fall a federal judge told the commission to think again, since federal election law calls for the regulation of "general public political advertising."
Many bloggers, of course, don't trust the agency or the pro-regulation groups. Krempasky's most recent RedState posting warns that "the clock is ticking down to FEC disaster." He's referring to the June 3 deadline for comments on the proposed rules. Another clock is ticking more slowly. The commission has a two-day hearing scheduled for the end of June.
Still, even as the clocks run, the commissioners are preoccupied with equally complex regulations on other subjects. And paradoxically, the bloggers may also be hurt by the outsider status they flaunt.
A year ago, when the issue was regulating those 527 organizations, a coalition of established advocacy groups — not even the 527s themselves — buried the FEC in nearly 140,000 emails. Emerging from the blizzard of comments, the commissioners decided not to regulate.
Now, with barely a week left before the comment period ends on the Internet rulemaking, commission spokesman Bob Biersack says comments are merely in the hundreds. And this from players who say they can sway elections.
"It's not breaking our servers or clogging our emails," Biersack said.
This isn't to say that the commission has made up its mind to regulate the blogs. From all evidence so far, it seems to be leaning the other way. One possible outcome: The commission would shoehorn political bloggers and independent political Web sites into existing exemptions designed for media and for campaign volunteers.
If the commission doesn't go in that direction, bipartisan legislation in Congress calls for a flat ban on campaign finance regulation of the Internet.
But before it comes to that, bloggers and the FEC have to overcome a small culture clash. Bloggers are talking among themselves but have filed few official comments on the proposed rules, because the commission makes commenters provide a mailing address. Most bloggers consider that kind of disclosure unnecessary, even risky, in the cyberworld of unbridled debate.
The solution may be for an online coalition to collect e-mails from bloggers who want to protect their identities, and forward them en masse. But that big bundle of comments hasn't landed on commissioners' computers yet.