Lies, Damned Lies and Reformers, Part I

May 12, 2010   •  By Jeff Patch
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The goo-goos are “freaking out” about testimony submitted at yesterday’s hearing at the House Administration Committee by the Center for Competitive Politics on the disclosure provisions of the “DISCLOSE Act,” (Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections).

These “watchdogs,” (or junkyard dogs) of democracy are also flipping out about the testimony of Patton Boggs attorney Bill McGinley, who runs the blog Express Advocacy. McGinley mentioned in the hearing that the “DISCLOSE Act” would, for the first time, regulate political speech on the internet by bloggers and possibly journalists. CCP President Sean Parnell also raised this issue in a blog post.

According to the text of H.R. 5175, [Title I, Sec. 324(b)], the bill defines “covered communication” as “a publicly distributed or disseminated communication that refers to a clearly identified candidate for Federal office and is publicly distributed or publicly disseminated during such period.”

The plain reading of this statutory language would include Internet communications by political bloggers on the left, right and center (libertarians, too). These coordination regulations would be in effect starting 120 days before a primary election until the general election.

“Independent expenditure”
The bill also radically expands the definition of “independent expenditure” to also include the “functional equivalent” of express advocacy instead of what “independent expenditure” has always been understood as-an explicit appeal to vote for or against a candidate: “The term independent expenditure means an expenditure by a  person for a communication expressly advocating the election or defeat  of a clearly identified candidate that is not made in cooperation, consultation, or concert with, or at the request or suggestion of, a  candidate, a candidate’s authorized committee, or their agents, or a political party committee or its agents.” The DISCLOSE Act goes beyond this definition, bringing more political speech under the thumb of government.

“Covered communication”
The media exemption for a “covered communication” in the coordination section of DISCLOSE only refers to “a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication…” Notwithstanding the Supreme Court’s clear holding in Citizens United that Congress may not distinguish between the political speech of “good” corporations (such as New York Times Co.) and “bad” corporations (such as the U.S. Chamber of Commerce or maybe the parent company of, this media exemption does not include Internet communications by the non-institutional press (i.e. bloggers).

The Center for Competitive Politics has been writing about this issue since March 2006, when the FEC unanimously implemented a rulemaking on Internet political communications. Basically, paid web advertising is regulated like political advertising in other media. Bloggers, though, retained their First Amendment rights—similar to traditional media outlets, they may endorse candidates and engage in political speech without concerns that the FEC may investigate their actions as “coordination.” CCP also authored a background paper on this internet regulation in June 2008. Just last week, CCP vice president Steve Hoersting noted the issue as it relates to the artificial distinction Congress crafted in McCain-Feingold to exempt media corporations from campaign finance regulations:

“And the media exemption, itself, is again before the FEC in an advisory opinion request by the Citizens United organization in the wake of Citizens United Supreme Court opinion,” Hoersting wrote. “If, as the Court said, speech rights cannot turn on the identity of the speaker, how can government exempt some entities from campaign law and not exempt others? And should the government be deciding who are members of the press in any event? Isn’t “press” just an activity?”

Public Citizen’s Craig Holman and the Brennan Center for Justice’s Ciara Torres-Spelliscy both took umbrage that McGinley and CCP expressed concerns about how the vague definitions in the bill would sweep up Internet communications under the control of FEC bureaucrats.

Holman’s piece, after engaging in a bit of name calling and allusions to “death panels,” says that the expanded definition of independent expenditure does not change the definition of “public communication” as it is defined in federal election law and FEC regulations: “Thus, it leaves in place the carefully worked out provisions of FEC regulations that exclude blogging and similar internet activity from the definitions of ‘expenditure’ and ‘public communication’ under campaign finance laws,” Holman wrote.

Not true.

“Public communication” v. “covered communication” or “communication”
First, the term in the FEC regulations is “public communication.” The term in the DISCLOSE Act is “covered communication” or “communication.” I don’t know, I wasn’t an English major, but those are different words, folks.

Even the Brennan Center’s Torres-Spelliscy admits that the FEC is “most likely” to stand by the 2006 Internet rules. Well, “most likely” may be good enough for the goo-goos, but most people engaging in political speech—where an error could lead to criminal and civil sanctions—want certainty and clarity in the law. For the Brennan Center and Public Citizen to smear ideological opponents for pointing out potential problems with the bill lays bare their true intentions: It’s not about good government. It’s about shutting people up who disagree with their regulatory fantasies.

Second, the FEC will not have time to implement or clarify these regulations in time for the 2010 elections. The Democrats who authored this bill are insisting that it be implemented a mere 30 days after passage, ensuring that independent groups face a maze of confusion about the myriad vague terms and complicated regulatory schemes in the bill. This is likely by design, not chance or incompetent drafting—the people who drafted this bill are very smart and know what they are doing.

Another provision in DISCLOSE would change the way appeals to this legislation are heard: instead of expediting challenges to the D.C. Circuit Court of Appeals and the Supreme Court, First Amendment challenges would merely direct courts to expedite cases “to the greatest possible extent,” giving much more leeway for delay. This ensures that if the speech-chilling DISCLOSE Act passes, those who seek to exercise their First Amendment rights will not be able to overturn unconstitutional provisions for years.

If there’s one thing that needs a “death panel,” it’s this sick bill of restrictions on free speech.

Jeff Patch

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