• by Shankar Gupta , March 14, 2005

Federal Election Commissioner Scott Thomas unnerved some prominent bloggers last Friday when he spoke publicly at a conference at George Washington University in Washington, D.C. about the agency's plans for regulating political donations online.

While the media is generally exempt from regulation under campaign finance laws, Thomas indicated that the agency might nonetheless regulate expenditures to blogs and some online publications. "We have shown at the FEC a willingness to extend the media exemption to some Internet-based news services. But this media exception inquiry will go to the question of: 'What is a periodical publication?' and 'What is a legitimate press function?' It will also get into: 'What is news?'...'What is commentary?'...'What is editorial content?'" said Thomas, according to a transcript of his remarks posted at the blog RedState.org.

Although some listeners believed the speech was intended to encourage members of the blogosphere, a number of bloggers reported that it had the opposite effect. "Although it was supposed to be reassuring, it actually left me thinking that the FEC was thinking more seriously about regulating blogs than I had previously believed," wrote prominent InstaPundit blogger Glenn Reynolds on his site. "I wasn't reassured at all, and the complexity of the reasoning he outlined just illustrated how much discretion--and how little real guidance--the FEC has on these kinds of questions."

Michael Krempasky of RedState.org agreed. "If he came here to reassure bloggers that their rights would be protected, then he didn't do a good job at all," he said. According to Krempasky, the chairman described bloggers as "people sitting in their basements wearing Lyndon LaRouche shirts," and did not seem amenable to applying the "press exemption," which currently allows news media outlets to comment on elections free from regulation, to bloggers.

Krempasky helped assemble a bipartisan coalition of bloggers that presented an open letter to Thomas after his address Friday, given at the Politics Online conference. "While paid political advertising on the Internet should remain subject to FEC rules and regulations, curtailing blogs and other online publications will dampen the impact of new voices in the political process and will do a disservice to the millions of voters who rely on the Web for original, insightful political commentary," the letter reads.

Other coalition members include heavy hitters of the blogosphere like Markos Moulitas of DailyKos.com. Michael Bassik, the vice president of Internet advertising for Malchow Schlackman Hoppey & Cooper, a prominent online political marketing firm, also helped assemble the group. At first, the coalition included 11 bloggers from both the left and the right, but the letter was posted at onlinecoaltion.com, and by Friday evening, had garnered over a thousand signatures.

The recent controversy began almost two weeks ago after FEC Commissioner Bradley Smith said in an interview that the FEC may begin to regulate "any decision by an individual to put a link (to a political candidate) on their home page, set up a blog, send out mass e-mails--any kind of activity that can be done on the Internet."

The FEC began to consider regulating Web logs and other Internet media after federal Judge Colleen Kollar-Kotelly ruled that the blanket exemption to the Internet that the FEC had been applying undermined the purpose of the 2002 Bipartisan Campaign Finance Reform Act, commonly known as McCain-Feingold. The judge's decision requires the commission to consider regulating media on the Internet.

Some election law experts believe, however, that this controversy over FEC regulation of private citizens' Internet activity has become overblown. "This is a blogstorm in a teapot," said Mark Glaze, the director of the government ethics program at the Campaign Legal Center. "The FEC simply is not going to be interested in regulating political activity by you and me sitting at our computers at home."

According to Glaze, Smith's comments that touched off the controversy were designed to generate controversy and throw the spotlight onto the FEC.

"Brad Smith's project is to create a firestorm because it puts them at the center of events and puts pressure on the FEC to avoid regulating online activity," Glaze said. "I think it's fair for him to raise the issue, but his concerns are unrealistic and inflammatory." Glaze added that in theory, it was possible that the FEC could regulate blogging activity, but in practice, they will not do so.

"Grassroots political activity like online commentary and hosting material on blogs is not going to be of any interest to the FEC," said Glaze.

But some blogwatchers aren't so sure that there's no controversy. Jay Rosen, a professor of journalism at New York University and author of the media commentary blog PressThink, said that even the suggestion of government regulation of bloggers is "something to squawk about."

"Just the suggestion itself coming from a government official--somebody on the commission--that a link is a contribution, the completion of that thought is a danger," Rosen said. "That's a direct threat to our forum. Blogging is about as protected an activity as you can get in first amendment logic--it's people giving their opinions about public questions on political questions of the day."

The FEC will issue a proposed set of regulations for Internet activity on March 24.