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Sapere aude - dare to be wise
Thursday, March 03, 2005
The Coming Crackdown
Posted 10:54 AM by Joshua Claybourn
When campaign finance reform was passed into law, libertarian-minded folks (and indeed activists of all persuasions) reacted more annoyed than outraged. All of that may soon change as the Federal Election Commission (FEC) starts turning its sights to the Internet, suggesting "the freewheeling days of political blogging and online punditry are over."
In just a few months. . . 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.
That's the lede from CNET after an interview with Bradley Smith, one of the six commissioners at the Federal Election Commission, which is beginning the process of extending campaign finance law to the Internet. Reading Mr. Smith's comments really highlight the absurdity of the laws and how much we've conceded First Amendment rights.

For instance, a blog that praises a politician may be charged a fee based on the percentage of the computer cost and electricity that went to political advocacy. Even a hyperlink can carry enormous implications. If your hyperlink results in $35,000 in contributions, for instance, the FEC would will usually take the view that the blogger contributed $35,000. This sounds extreme, but that's precisely what campaign finance laws are, and it's in line with an advisory opinion in 1998 that concluded that Web sites endorsing or soliciting funds for federal candidates are considered political advertisements and must disclose the full name of the site's creator, state whether the opinions expressed on the site are authorized by the candidate, and report expenditures.

At a minimum, any coordinated activity over the Internet would need to be regulated. A press exemption may help in some respects, but federal law limits the press exemption to a "broadcasting station, newspaper, magazine or other periodical publication." In 2002, the FEC exempted the Internet by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision because the "commission's exclusion of Internet communications from the coordinated communications regulation severely undermines" the campaign finance law's purposes. The commission could not even muster enough votes among themselves to appeal the decision.

Unless the three commissioners who are satisfied with the district court ruling have a change of heart and decide to appeal, it will take action from Congress to protect some of our most fundamental rights. Otherwise any individual linking to a political candidate, setting up a blog, or sending out mass e-mails may suffer the wrath of this grossly totalitarian law.

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