Here is a copy of the email (with some minor changes) I sent to the Federal Election Commission regarding proposed rule changes to campaign finance regulations with a particular emphasis on bloggers editorial and commentorial contributions during the federal election cycle. Enjoy:
To Mr. Brad C. Deutsch, Assistant General Counsel of the Federal Election Commission:
This electronic communication from a United States citizen addresses the Commission’s proposed changes to rules and regulations governing the Bipartisan Campaign Reform Act of 2002, commonly referred to as “McCain-Feingold.”
I desire to address the proposed rules and regulations from a blogger’s perspective. I operate a blog named “Rightank” located on the World Wide Web at http://rightank.com or http://www.rightank.com. I use the blogname “Tank” in posting content on my blog and responding to visitors to my site whether by electronic mail or through comments on my posts. My comments are as follows:
Part II.B
* The Commission should amend 11 CFR § 100.26 to explicitly state that “bloggers” are not included in the definition of “public communication.” Generally, I fear that some in both the main-stream media (particularly print or television) desire to limit the influence of the blogosphere among the general populace. Whether their motivation is financial (loss of advertisement revenue due to declining readership) or loss of political influence, their criticisms of bloggers are real. See Peggy Noonan, “The Blogs Must Be Crazy: Or Maybe the MSM is Just Suffering From Freedom Envy.” By explicitly inserting “bloggers,” it would protect a blogger from any concerted effort by a single media outlet or conglomerate to threaten the blogger into silencing himself or herself based on the notion that the blogger is acting unlawfully in his or her voluntary writing on behalf of a particular candidate or viewpoint that closely aligns with a “clearly identified candidate for Federal office.” See 2 USC 431(20)(A)(iii). Moreover, an explicit definition will prempt a court from judicially including “bloggers” (bloggers who receive renumeration and those who do not) as part of the definition of “public communication” as a means “of general public poltical advertising.” See 11 CFR § 100.26.
Part IV.B
* The Commission should require a blogger to disclose payments from a candidate, a campaign, or political committee if the payments are made to promote, attack, support, or oppose a Federal candidate. See 2 USC 431(20)(A)(iii) and 441i(b). While independent bloggers invigorate, inform, and enliven a robust public debate during election season, bloggers who receive monetary sums on behalf of their advocacy should disclose the source of their finananical gains. My rationale is two-fold: (1) The poltiical blogosphere might metamorphose similar to the 527 political action groups that enabled wealthy individuals to circumvent campaign finance law, rules, and regulations and exercise inordinate influence on the outcome of the campaign, hamstringing poltical parties and others who lawfully adhered to the rules; and (2) Disclosure would help the public would identify the financial source of the viewpoint in order to substantiate its validity and veracity.
* An exemption for smaller blogs might also be appropriate as some blogs are read more voraciously than others. For example, a blog whose readership is less than 1,000 hits a month and who receives a nominal amount (less than $100) would be exempted from the disclosure rule.
Part V.B
* The Commission should amend 11 CFR § 109.21(c)(2) to exempt all dissemination, distribution, or republication of campaign materials on the Internet generally and excise the reference in the regulation to “public communication.” Habitually and near-uniformly, bloggers link to each other’s blogs and link to other news and information sources when posting. Moreover, it is extremely unlikely that any independent blogger thinks about whether linking to an information source and thereby disseminating, distributing, or republishing that information source is a “public communication.” See 11 CFR § 100.26. A blanket exemption would actively promote a robust public debate “by the millions of individuals [who] daily . . .share [political] information and air their views on a variety of subjects” and prevent a squelching of informative discourse and differing viewpoints from reaching the public’s eye. See Internet Communications, 70 Fed. Reg. 16967, 16971 (proposed March 29, 2005) (to be codified at 11 CFR pts. 100, 110, & 114). In addition, an explicit exemption of all bloggers would eliminate the burdensome regulatory inquiry to determine whether a public communication has occured. For example, a determination whether multitudinous linking by “Group X” bloggers to a particular post by “X” blogger who received renumeration for his on-line entry was an impermissble “contribution.” See 2 USC 431(8)(A)(i).
Part VI
* The Commission should rule that bloggers are entitled to the “periodical publications” exemption for expenditures. See 2 USC 431(9)(B)(i). The exemption covers three types of informative output from traditional media sources: news stories, commentaries, or editorials. See 2 USC 431(9)(B)(i). Arguably, bloggers publish all three types of informative output or a combination of all three. See, e.g., Tank, “If I Were President . . .” (last visited May 29, 2005). Moreover, blogs are similar to on-line and print media sources in that they “provide direct access to poltical news and events and offer commentary on current affairs.” See Internet Communications, 70 Fed. Reg. 16967, 16975 (proposed March 29, 2005) (to be codified at 11 CFR pts. 100, 110, & 114). The exemption should not apply to bloggers who are compensated for editorials, news stories, or commentaries made on behalf of a poltical party. Such payments would constitute “control” by a candidate, political party, or political committee only if the blogger produced “multiple” editorials, news stories, or commentaries. The Commission should define “multiple” as “two or more on-line editorials, news stories, or commentaries within one week of on-line publication or archive.” This would balance the freedoms of the blogger in advocating for his or her candidate, poltical party, or political committee of choice and the regulatory aims of federal campaign fund disclosure and transparency.
Part VIII
* The Commission should enact the proposed rules on exceptions to the defintions of “contribution” and “expenditure” for individuals or volunteers (including “bloggers”) who act independently for the purpose of influencing a federal election. See Uncompensated Individual or Volunteer Activity That is not a Contribution, 70 Fed Reg. 16967, 16977-78 (proposed March 29, 2005) (to be codified at 11 CFR pt. 100); Uncompensated Individual or Volunteer Activity That is not an Expenditure, 70 Fed Reg. 16967, 16978 (proposed March 29, 2005) (to be codified at 11 CFR pt.100). A blogger should be able to independently advocate for the candidate, political party, or political commitee of his or her own choosing without regulatory repercussion. Anything less will inhibit robust debate and eliminate the requisite quantum of political discourse necessary to promote democracy and to protect and defend our Constitutional Republic.
In Federalist #1, Alexander Hamilton queried “whether societies of men are really capable or not of establishing good government from reflection and choice.” Thankfully, our Framers established such a goverment. Bloggers amplify the ability of our society to reflect and choose which candidates for Federal office best align with their values, interests, and beliefs. I strongly urge the implementation of the above comments and leave them for your thoughtful mediation and analysis. Thank you for your time and consideration and for your service to our country.
Respectfully submitted,
/s/ Tank
“Tank”
rightank@gmail.com