Ballots and Bloggers

A lightning rod in the dispute is Carol C. Darr, a scholar affiliated with George Washington University who argues that political blogging could create loopholes that should be closed. Her views have drawn fire from both the left and the right.

Are the new FEC rules a fair compromise? How quickly will the Internet's evolution — and especially the alleged future merger of television and the Web — make the new rules obsolete? What are the best- and worst-case scenarios for online politics in 2008?

  » A Bark-and-Byte Battle Over Campaign Finance (4/21/2006)



Carol C. Darr is director of the Institute for Politics, Democracy, and the Internet, which is affiliated with George Washington University, and a former staff lawyer at the Federal Election Commission. She was a legal adviser to the Democratic presidential candidates in 1980 and 1988. In her current position, she has overseen reports on Internet political activism and small-scale online political donations.

* anonymous online speech;

* Balkanized cybergroups that talk mostly to each other. See the Adamic & Glance study that was published right after the 2004 election.

* Sociological research that Cass Sunstein points to that indicates that participation in homogeneous groups, especially those comprising disaffected individuals, tends to increase extremism, in contrast to participation in large heterogeneous groups, especially those focused on a specific task, which tends to moderate the participatants toward the middle;

* And, the overwhelming presence in these online fora of "Influenials" who are already more partisan than the general population. See the book, The Influentials, for more detail.

On the other hand, a recent study we conducted on Small Donors and Online Give indicate that the small online donors who gave $100 were not more partisan than big donors, although as a group, donors are more partisan than the general population. I had expected the small donors to be more motivated by ideological issues, and thus, more partisan, but they were not.

These 527s are regulated more lightly than FEC controlled political committes and the reporting is less timely.

For a good explanation of how the regulation of 527s worked in the last election in the context of the Swift Boats, see a law review article in the NC First Amendment Law Review by Al May, who, in the interests of full disclosure, is my husband. You can find the article at this link:

http://www.gwu.edu/~smpa/faculty/albert_may.cfm

So, for the record, can you clarify where you stand on this contentious issue?

Carol C. Darr:
    The point I have been trying to make from the beginning is this: For all practical purposes the media provision in the FECA exempts media entities from regulation by the FEC so long as they are pursuing their journalistic function in covering news, and writing commentary and editorials. It is an extremely broad provision, for obvious reasons, so as not to interfere with a free press.

My concern has been that if all bloggers, or even a large portion of them, are treated as exempt media, then anyone who wants to be exempt from campaign finance laws can be exempt, given the extremely low barriers to entry. This means that there is no disclosure of the money and no limitations on the sources, i.e., foreign money is allowed.

The difficulty is that the statute, the old regs, and the precedents made it difficult, if not impossible, to distinguish between traditional media and new media/bloggers.

Thus, expanding the media exemption is an easy ask but an expensive gift.

I have never wanted to stifle the free speech of the bloggers or anyone else. However, I am a proponent of the regulation of money in politics and disclosure of political money. There is an inherent tension, I realize, between those two principles, and I fall on the side of campaign finance regulation.

The FECA and BCRA, however, primarily concern themselves with speech paid for by someone else. You own speech, exercised by you and not compensated by someone else, is generally not subject to limitation.

The main danger is the introduction of undisclosed foreign money into our election campaigns. One of the best ways to do that is through the media exemption. The other good way is non-radio, non-TV communications, including e-mail and online advertising that fall short of express advocacy -- that is, issue ads or Swift Boat type ads, provided that the funder is not coordinating with the candidate.

He says he wants what everyone wants: fair and competitive elections and corruption-free legislating. But restrictions on fund raising, spending, or advertising, he argues, have two flaws: They violate First Amendment rights to free speech, and they are based on faulty empirical assumptions about the influence of money in politics. "My position is not that money is irrelevant, but that its role is vastly overstated and that there's not much you can do about it," he says.

And if it doesn't matter, why do incumbents -- even those in safe seats, and 95% of them are safe seats -- spend inordinate amounts of money building up huge war chests, mostly from lobbyists, to scare off opponents?

I don't worry about small money that is too small to buy a quid pro quo. But I don't see how any observant person can think that big money doesn't put a big thumb on the decision-making process in Washington. Otherwise, why put all the effort into it?

The expenditures of media entities do not count as contributions. So the difficulty is that if you can't distinguish between the two, you either regulate the media, which no one wants to do, or you do not regulate political contributions at all.

That's the point I have been trying to make. I know full well that the old media is full of flaws, including that it lacks objectivity and that a few (not many, but a few) journalists make political contributions in violation of most journalistic codes of ethics, and otherwise act as partisan and activists at the same time.

But I absolutely think that our dirty system of campaign finance can get worse, especially if there are big loopholes for undisclosed foreign money. Fortunately, I think the FEC did a pretty good job in tightening up some of more obvious loopholes, like stating the bloggers paid by someone else are not exempt.

I can still think of plenty of ways around the new statute, but in practical effect, the new regs make wholesale corruption less easy than it could have been.

I've always been concerned about ensnaring average citizens and activists, including bloggers, in the net of campaign laws, and I was one of the co-drafters of the CDT-IPDI principles to that effect.

So I do believe some of the overheated language of the blogosphere that I want to squelch free speech is misguided.

Is content on your PDA newspaper, the Internet, radio, TV? In fact it will be all of them, and they are all regulated differently now.

It will be interesting to see what happens.

My concern all along is that we not completely gut the campaign finance laws. As pitiful as they are, they do stop a good bit of corruption, in my view, and they do require the disclosure of the sources of the money.

The media exemption is the biggest, best exemption out there, and the one most open to abuse to undisclosed foreign money. That is why I sounded the alarm. Not to prevent bloggers from getting it, but to explain what the cost of doing so was.