We Write Letters

From Adam Bonin, Markos Moulitsas, and Yours Truly:

We would rather not be engaging in a tit-for-tat with Reps. Shays and Meehan following their latest response to the joint letter circulated by Markos Moulitsas and Mike Krempasky yesterday. Our preference has always been to work together with those representatives and outside groups sincerely interested in balancing the desire to stem corruption with the need to protect political activity online, and I will continue to speak with anyone interested in alternatives to H.R. 4194 as it is presently constructed.

But that letter demands a response, and it does because of what it reveals. For all their strutting about the "great virtue" of discourse on the Internet, Reps. Shays and Meehan repeatedly attack our letter for "circulating on the Internet" as though the medium alone somehow detracted from the truth of its message, almost as if we had posted it in a bathroom stall rather than faxing it to all 435 Members' offices before posting online.

More to the point, one needs to read the silences of that letter to understand what Rep. Shays and Meehan really mean. They speak of protecting "any communication by an individual made on that individual's website," but say nothing about the overwhelming majority of internet activity, which takes place on other peoples' sites. Of course, the beauty of the Internet is not that it allows every citizen her own podium, but that it creates an infinite array of configurable conference rooms for citizens to meet together and discuss issues of mutual concern. Who owns a Blogspot.com site? An IM chat room? Do Reps. Shays and Meehan intend to protect these activities through H.R. 4194?

Reps. Shays and Meehan speak of the media exemption, flagging it as a question, but offer no answers as to how they believe the protections afforded to magazines, newspapers and talk radio shows should be applied to the Internet. This is a question of great importance whose resolution could dispatch most of our concerns, yet on this key concern they offer nothing.

Thankfully, the FEC itself has spoken to this issue yesterday, agreeing in a draft opinion with our long-stated view that an incorporated website that offers news, editorial and commentary on the Internet which also "intends to endorse, expressly advocate, and urge readers to donate funds to the election of Democratic candidates for federal, state and local office" is entitled to this same strong protection as The New Republic, Fox News Channel and Rush Limbaugh. This FEC opinion affirms our belief that as long as a website is not owned or controlled by a candidate, party or PAC, it ought to be free to be as biased and partisan as it wants. See Draft Advisory Opinion 2005-16 (FiredUp America).

Would Reps. Shays and Meehan agree to codify the view of the Federal Election Commission? Do they object? (Their allies in the pro-regulation community strongly objected to such equal treatment.)

We simply don't know. We also don't know how their bill possibly protects incorporated wikis and podcasters, if the legislation specifically exempts only those incorporated individuals who operate a "web log".

Moreover, they proclaim that group websites are covered by an "already clear definition" of political committee behavior, but nothing could be further from the truth. As former FEC staffer Allison Hayward notes:

There is no "clear definition" of political committee. There is a statutory definition (a group with contributions or expenditures of $1,000 a year, basically) and a contradictory collection of cases interpreting whether there also must be a "major purpose" to "influence elections." What's "major"? What's "influence"? Any "elections" or just federal ones? Depending upon who you ask (Ed Foley, Scott Thomas, or Brad Smith) and what day it is, the answers will be different."

Let me close off by reiterating something that we've said before: many of us do not oppose closing the "soft money loophole" which Reps. Shays and Meehan have flagged. If a bill is presented which extends the soft money rules to the Internet, but also allows for robust protection of citizen activity on the Internet, many of us will support it.

H.R. 4194, in its present form, is not such a bill. Unless it is satisfactorily amended, it must be opposed.