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The usual suspects were lined up to testify for two days of hearings at the Federal Election Commission regarding political activity on the Internet — representatives of presidential campaigns, major political players like the AFL-CIO and advocates from the reform lobby. Then there were my clients: a war refugee from El Salvador whose father loaded freight in a warehouse, a “recovering economist” who works in his pajamas from home and a former software product manager who had never cared about politics until three years ago. They are all political bloggers sharing a common goal: to convince the FEC that the Internet makes the basic premises of campaign finance law virtually inapplicable. The McCain-Feingold campaign finance reform legislation did not mention the Internet, leading the FEC to enact regulations which confirmed that the rules that applied to television, radio and print media did not apply online. This would not last. In Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), Judge Colleen Kollar-Kotelly agreed with the act’s sponsors that such a blanket exemption could frustrate the purposes of the act by allowing unregulated coordination among state or local committees of political parties; political action committees (PACs) or 527 organizations; and candidates — a purported loophole creating “the potential for gross abuse.” That such abuse did not actually occur during the 2004 elections did not matter. In March, the FEC responded to the court’s order with 13 pages of proposed regulations. While containing sensible provisions closing that purported gap, the regulations unfortunately went much further, as the FEC has tried to bring the entire Internet under its jurisdiction. The proposed regulations now make possible everything from turning group Weblogs into regulated “political committees,” to imposing a “code of ethics” requiring more of bloggers than of talk radio hosts or newspaper columnists, to decreeing how much time we can spend at work participating in politics online, to considering links to candidate Web sites as “in-kind” contributions subject to reporting requirements. WEALTH IS NOT A FACTOR HERE None of these additional regulations is wise. The purpose of campaign finance law is to blunt the impact of accumulated wealth on the political process, but this is not something that occurs online. While wealth allows a campaign or large donor to dominate the available space on TV or in print, there is no mechanism on the Internet by which entities can use wealth or organizational strength to crowd out or silence other speakers. Any citizen who wants to establish a Web site that discusses political matters can do so within five minutes, and their words are instantly available to hundreds of millions of users on an equal basis with every other site. Moreover, one need not invest millions of dollars to reach people on the Internet. The most popular Web sites are often the cheapest ones, many using the free Blogger service to publish their thoughts at no cost at all. The Internet also empowers small-dollar donors and magnifies their impact, as Howard Dean’s presidential bid demonstrated. The high production values of TV ads do not translate to credibility on the Internet. To the contrary, three times as many visitors saw JibJab’s “This Land Is Your Land” cartoon with George W. Bush and John Kerry than visited Bush and Kerry’s official Web sites, despite the fact that it cost only a few hundred dollars and was not advertised on other sites. In sum, the Internet fulfills through technology what campaign finance reform attempts via law. It magnifies the power of each citizen’s voice to equal that of large corporations. Any speech, whether from a campaign, a wealthy PAC or a news report, can be immediately countered by any ordinary citizen — as the Internet’s uncovering of the “Rathergate” scandal showed. This all leads to two conclusions. First, rather than introduce regulation to control a vibrant speech market, the FEC should proceed cautiously and steer clear of additional restrictions until real corruption seems possible. The most important thing the FEC can do with regard to the Internet is to leave it alone, to allow it to serve as a vigorous counterweight to other media in which most individuals have no ability to speak to the masses and cannot influence the political debate. Second, when it does act, the FEC should keep its focus on the candidates, parties and PACs already responsible for complying with its voluminous regulations. It should keep its attention on their use of money and their speech, rather than that of individual speakers who lack the resources to “lawyer up.” Judge Stewart Dalzell had it right in 1996, when he ruled in ACLU v. Reno on the Communications Decency Act, the first real effort to regulate the Internet. He wrote: “If the goal of our First Amendment jurisprudence is the individual dignity and choice that arises from putting the decision as to what views shall be voiced largely into the hands of each of us, then we should be especially vigilant in preventing content-based regulation of a medium that every minute allows individual citizens actually to make those decisions. Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig.” We traveled to Washington to convince the FEC not to view citizen political activity on the Internet as a new “problem” in need of regulatory solution. Wealth loses its corrupting power online because it cannot silence the opposition. If reducing money’s influence on politics is the FEC’s command, a vibrant online marketplace of ideas is the solution. Adam Bonin, an associate at Philadelphia s Cozen O Connor, is representing pro bono high-profile liberal bloggers, including Markos Moulitsas Z�niga of Daily Kos (www.dailykos.com) and Duncan Black of Eschaton (atrios.blogspot.com). He drafted comments on behalf of them to the FEC. See www.redstate.org/documents/kos.pdf. He can be reached at [email protected]

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