Election law and blogs

by Henry Farrell on March 1, 2005

While doing some research a couple of weeks ago for a course I’m teaching, I came across this interesting Brookings Institution “book chapter”:http://www.brookings.edu/dybdocroot/gs/cf/sourcebk01/InternetChap10.pdf of how US election law affects political activities on the Internet. Reading between the lines, it appears to me that the Federal Election Commission has been strenuously trying to avoid getting sucked into the quagmire of regulating political conduct on the Internet – but that it is, sooner or later, going to have to start engaging in rulemaking. Trevor Potter and Kirk L. Jowers, the authors of the chapter don’t really discuss how, or whether, election law should apply to blogs. There are some fascinating questions here for future regulation and lawmaking. Should there be disclosure requirements for blogs (like the two blogs “authored by paid advisers”:http://www.cbsnews.com/stories/2004/12/08/politics/main659955.shtml to the Thune senatorial campaign in South Dakota) that are intimately linked to a political campaign? Should blogging that is expressly aimed at supporting the election of a particular candidate be treated as a political contribution, or as volunteer activity? Should the kinds of restriction that apply to coordination between 527s and political campaigns be extended to prominent political blogs?

I note that I’m not an expert in electoral law. Still, I feel fairly confident in making two predictions. First: that these activities _will_ be regulated. As political blogs become a more established part of the political landscape, they will increasingly be treated as another means of political expression, advocacy and fundraising – and the current regulatory regime will, one way or another, be extended to cover them. The only question is how the balance between free political speech and the need to regulate organized political activities is struck. Second, that whatever regulations are promulgated will prove awkward and uncomfortable for bloggers on both sides of the ideological spectrum. Bloggers have gotten used to operating in a relatively freewheeling environment – as they get absorbed into the existing political system, this is going to change.

Update: “Luis Villa”:http://tieguy.org/blog/ points in comments to this very interesting “take”:http://zonkette.blogspot.com/2005/02/fec-talk-tomorrow-abstract-in-progress.html on how the FEC _should_ evolve from Howard Dean’s former election coordinator, Zephyr Teachout.

{ 4 trackbacks }

ADE Bloggers
03.01.05 at 8:07 pm
Right Wing News
03.03.05 at 11:59 pm
03.04.05 at 7:50 pm
03.04.05 at 7:55 pm



Luis Villa 03.01.05 at 4:31 pm

Interestingly, Zephyr Teachout suggests that the FEC could basically be reduced to a clearinghouse like fundrace.org in the future. This would probably reduce some of the conflicts you’re discussing here. Anyway, recommend reading her post.


Miller 03.01.05 at 4:54 pm

Wouldn’t the logic extend to talk radio as well?


Sebastian Holsclaw 03.01.05 at 6:31 pm

My view on what ought to happen is nothing. But I think election communications ought not be regulated at all. Free speech is all about protecting political speech. It is kind of funny that we accept near obcenity which is protected so that we don’t get anywhere near political speech but we have arguments about political speech which is the whole core of free speech.


washerdreyer 03.01.05 at 6:36 pm

I’m pretty sure the first sentence suggests that you’re doing research now in order to then travel back in time and teach the course. In which case you probably have a more interesting topic you could be teaching about than the intersection of election law and blogging.


tib 03.03.05 at 2:37 am

You are buying into the fear-mongering of the opponents of campaign finance reform, like Sebastian Holsclaw.

I would suggest a quick read of the FEC BCRA FAQ and their paid communications brochure. The FEC regulates how political organizations raise and spend money, and how they may advertise. It does not regulate media generally, not even political media like FOX news or The American Prospect. Crooked Timber and Instapundit aren’t suddenly going to be regulated by the FEC.

What the Brookings chapter is obliquely referring to is the likely regulation of paid mass online communication, i.e. bulk email and banner ads. FEC rules could govern what kind of money may be used to pay for those efforts and whether an organization may mention a candidate, they would probably be similar to the rules governing political direct mail.

As for Teachout, I can’t really make out what she is trying to say. Where do you think fundrace gets it’s data from? The FEC is already focused on transparency. Anyone with half a clue who worked on a campaign knows that the FEC does not outlaw participation, it prevents soft money (money from corporations, unions and amounts over $25,000) from being used to influence parties and candidates.


dave heasman 03.03.05 at 9:55 am

a quick aside, Sebastian suggests “It is kind of funny that we accept near obcenity which is protected so that we don’t get anywhere near political speech …”

Some of us recall the 60s where a lot of what was obviously political “speech” was attacked for obscenity. It’s what they go for every time.


Edrik 03.03.05 at 6:51 pm

Considering the nature of the internet and nature of blogging, I imagine any attempts at regulation would be far from successful.

Comments on this entry are closed.