A Bark-and-Byte Battle Over Campaign Finance

When Carol C. Darr argued that political blogging could create loopholes that should be closed, the election-lawyer-turned-scholar angered both sides of the red-blue divide.

Colloquy: Read the transcript of a live online discussion with Carol C. Darr, an elections scholar at George Washington University, about how future changes in the Internet might affect campaign-spending rules.

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By DAVID GLENN

There is not much love lost between the liberal activists who blog at Daily Kos and their conservative counterparts at RedState.org. One entry at Daily Kos last month was titled "RedState Runs From Their Own Idiocy." The same week, a commenter at RedState wrote, "I don't visit Kos, because I am not enamored with wading through sewage."

Last spring, however, the two blogs found a common enemy: a "clueless embarrassment" (in the words of Daily Kos) who was peddling a "cheesecloth-flimsy" argument (RedState).

The object of their ire was Carol C. Darr, director of the Institute for Politics, Democracy, and the Internet, which is affiliated with George Washington University. Someone in her position, the bloggers believed, ought to be an enthusiastic defender of online politicking in all its forms. Instead she was urging the Federal Election Commission — where she had worked as a staff lawyer in the 1970s — to bring certain kinds of blogging under the umbrella of campaign-finance law.

As her critics see it, Ms. Darr fundamentally misunderstands the Internet and grossly exaggerates the risks of online corruption. Her proposals, they say, would throw political bloggers into a thicket of red tape (and, incidentally, might force many colleges and universities to severely restrict political speech on their computer networks).

Ms. Darr replies that the vast majority of political blogs would be exempt from the policies she favors. Her only concern, she insists, is to prevent blogs from becoming conduits for large sums of money. Various Internet-related loopholes, she believes, have the potential to gut the American framework of campaign-finance law. Before long, she fears, Web sites will facilitate the flow of "unlimited amounts of individual money, corporate money, union money — and, increasingly, your next horizon is going to be foreign money."

Last month, after a long period of deliberation, the election commission issued a new set of regulations for online political activity. Unexpectedly, the commission seems to have crafted something close to a genuine compromise: Ms. Darr and her allies and the Kos-RedState axis have all applauded the new regulations.

Each faction, however, argues that the other cannot possibly be sincere in its praise. And even though peace has broken out in recent weeks, it is all but certain that these battles will return in new forms, as Internet technology evolves and political campaigns grow ever more sophisticated. Ms. Darr and her institute, which brings together campaign-finance scholars, technology specialists, and professional political operatives, will continue to be a lightning rod.

"My job as an academic is not to be a cheerleader for the blogosphere," she says. "I'm lucky to have the freedom to call things as I see them."

Memphis and Machiavelli

In an evening class on political ethics, Ms. Darr leads her students — most of whom are earning master's degrees from the university's Graduate School of Political Management, which houses her institute — through a series of case studies of borderline-sleazy campaign tactics. She is a sharp-witted but unpretentious presence in the classroom, and her voice still carries strong traces of Memphis, where she grew up. (She has an especially vivid drawl on the word "slimed," which comes up often in these case studies.)

After a discussion of infidelity, Gary Hart, and the good ship Monkey Business, Ms. Darr grins at her students and says, "Now, I know that y'all want to hear what Machiavelli had to say about this. Machiavelli had something to say about everything."

Indeed, Ms. Dunn's deep interest in Machiavelli is the first thing one notices during a visit to her office. She has two shelves of books devoted to exegeses of his thought, and she owns a six-inch-tall doll of Old Nick himself. During the mid-1980s, she interrupted her career as a campaign-finance lawyer to earn a master's degree in the history of political thought at the University of Cambridge.

"Machiavelli sees politics with the clearest eye," she says. "I was originally interested in Machiavelli for his views on political corruption. If you're an officeholder, we all know instinctively: To get political contributions, those folks get something back. So what's fair and what's not? How much special access do you give them? How do you balance the competing demands on you as an officeholder?"

When Ms. Darr enrolled in law school at the University of Memphis, in 1974, Richard M. Nixon had just skulked out of the White House, and she and many of her fellow students were fascinated by corruption. "I was very much a Watergate baby," she says. "I thought this was the most interesting part of law. When I graduated, in 1977, they had just changed the campaign-finance rules, finally, and the FEC was a brand-new agency. I just came up here and was bound and determined that I was going to work for them."

She did indeed win a job at the election commission, which was followed by work as a lawyer for Jimmy Carter's 1980 campaign and Michael Dukakis's 1988 effort. She has also served, at various points, as general counsel to the Democratic National Committee and as a vice president of the Information Technology Industry Council, a Washington lobbying group.

In 2002 she accepted an offer to become director of the institute at George Washington, where she oversaw reports on Internet social networks and small-donor online contributions during the 2004 political cycle. On the whole, her work was well regarded and uncontroversial.

Until, that is, her campaign to influence the election commission's regulations of online political life.

As she pulls out a bottle of seltzer from behind her desk, she raises her eyebrows and says, "Go ahead. Ask me if I snack on mercury chips."

Feeling the Cyber-Heat

"I think Carol Darr snacks on mercury chips" is one of the gentler things that bloggers said about her during the height of combat in 2005.

"I just got to a point where I didn't want to open my e-mail anymore," she says. "You know, it was 'You stupid bitch.' ... I was just thinking, Have y'all lost your mind that you would find an academic and write that kind of obscene, whatever you want to call it, this blast of — you know, have you lost your mind? Why don't you go wash your mouth out with soap?"

The liberal political blogger Bob Brigham posted the office telephone number of Stephen J. Trachtenberg, president of the university, and encouraged readers to call and urge that Ms. Darr be fired. At least one reader took up the offer, she says.

The occasion for all of this heat was the election commission's review of its Internet regulations — part of a much broader effort to craft regulations that will put into effect the Bipartisan Campaign Reform Act of 2002, more commonly known as the McCain-Feingold law.

In its initial regulations under the law, the commission announced that the Internet would be exempt from the definition of "public communications" — the law's term for explicit political advertisements that must be paid for with tightly regulated "hard" money.

The McCain-Feingold law itself had been ambiguous about that particular point. The statute lists "any broadcast, cable, or satellite communication, newspaper, magazine, outdoor-advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising." No mention of the Internet.

After allies of Senators John McCain and Russ Feingold filed a lawsuit, a federal district court rejected the election commission's laissez-faire approach to the Web. Some kinds of Internet political activity clearly count as "general public political advertising," the court ruled in 2004. It ordered the commission to consider which forms of online politics should be brought under the law's umbrella.

The commission held hearings on that question in June 2005, and it invited members of the public to submit comments in advance of those hearings. In her written comments, Ms. Darr urged the commission to ensure that "citizen activists do not get caught up in a regulatory net that will chill their free speech and inhibit their political activities."

Nothing controversial in that. But a portion of her comments suggested several policies that many bloggers believed would commit precisely those sins.

Ms. Darr's primary concern is that the Internet not become a venue through which corporations or other special interests could bypass the general framework of campaign- finance law. She fears that, say, the Arsenic Land Mine Corporation might provide millions of dollars in unregulated soft money that would be used to produce online videos or banner ads attacking Candidate A — and that when Candidate B won the race, he would remember that he owed Arsenic Land Mine a favor.

To a large degree, Ms. Darr and her allies won that battle. In the compromise regulations issued last month, the commission ruled that political messages placed for a fee on someone else's Web site are "public communications" — and therefore can be paid for only with money raised and regulated through the channels defined by the McCain-Feingold law.

On the other hand, the commission ruled that, in general, the bloggers and other Web-site operators who receive money to display those ads do not need to fill out reports or otherwise fall into the regulatory net. (Thus, the new rules are a burden on the political campaigns that produce the ads and pay for their placement, not the Web sites that host the ads.)

Are Bloggers Media?

But the truly contentious argument last spring — the one that generated cracks about mercury chips and other epithets — had to do with an argument for regulation made by Ms. Darr that ultimately did not carry the day.

She urged the commission to think carefully before automatically giving all blogs what is known as the "media exemption." That exemption was created during the 1970s to ensure that news-media outlets' ordinary activities in covering political campaigns did not entangle them in campaign-finance law. So if a newspaper — say, the Patrician Liberal Bulletin — endorsed John Kerry in 2004, that endorsement would not have to be reported as an in-kind contribution to the Kerry campaign.

"The media exemption is the best exemption sitting there in the regs," Ms. Darr says. "Not only do you get to take any kind of money and publish anything you want, with any amount of money, you also get to coordinate with the campaigns."

The question of coordination is a key element in campaign-finance law. For example, a labor union conducting a soft-money "issue advocacy" campaign would not have been permitted to call John Kerry's office in 2004 and ask which anti-Bush themes they would like the union to emphasize this week. But if the Patrician Liberal Bulletin wanted to slant all of its news coverage in Kerry's direction, that newspaper's editors could, in theory, call Kerry's campaign every morning and coordinate messages.

"It's a hell of a deal," Ms. Darr says. "And I think it will end up gutting campaign-finance law."

The media exemption made perfect sense when there were relatively few news-media players, she says. But the Internet has changed the terrain, she argues, by blurring certain lines and lowering the barriers to entry.

So, for example, if the Arsenic Land Mine Corporation wants to spend millions of dollars to support Candidate B — and to generate an implicit quid pro quo — it couldset up its own Web site (LandMinesForHealth.com), pumping out videos, e-mail messages, and commentary attacking Candidate A. But because the corporation would not be paying to place such material on anyone else's site, it would not fall under the new regulations. And because the site would contain news and commentary, the corporation could spend unlimited money under the media exemption.

Ms. Darr lost that battle; the commission's new regulations declare that blogs and other Web sites that contain news and commentary should be granted the media exemption across the board, unless they are owned or controlled by political parties or campaigns.

In any case, say Ms. Darr's critics, her cautionary tales are faintly ludicrous. "If Halliburton were to start a blog," says Adam C. Bonin, a lawyer at the Philadelphia law firm Cozen O'Connor, "then a thousand blogs could immediately respond to it, with equal voice and with equal audience."

More important, corporations and other special interests have not demonstrated any interest in exploiting the media exemption in that fashion, says Mr. Bonin, who helped three liberal bloggers prepare testimony before the election commission last year. "Money doesn't have the same effect on the Internet that it has in other media," he says.

With $2-million in its pocket, a political campaign can buy up a large fraction of the available ads on local-television news during the week before an election, essentially blocking its opponents from the airwaves — or drowning them out. But on the Internet, there is no comparable scarcity of advertising space, and, at present, it is much cheaper to transmit messages. "It's not worth it," Mr. Bonin says. "There is nothing to be gained by exploiting this so-called loophole."

Bradley A. Smith, a professor of law at Capital University, in Ohio, and a former member of the election commission, agrees. "I think there's a tendency to get carried away with hypothetical problems before they arise," he says.

Moreover, he adds, the distinction between the Internet and the old media that Ms. Darr tried to draw simply isn't tenable. "Halliburton already has the press exemption," says Mr. Smith, who sometimes blogs at RedState and who is famously skeptical of campaign-finance regulation of all kinds. "They can buy a newspaper or a TV station any day they want. And they can broadcast editorials all day long — you know, whatever they want to do. ... The only difference with the Internet is that it's cheaper, and that any citizen can do what Halliburton does."

Ms. Darr ultimately lost sight of the Internet's uniquely fluid properties, says Markos Moulitsas Zuniga, a Berkeley, Calif., Democratic activist who founded Daily Kos.

"There's nothing inherently wrong with someone — even a corporation — talking about the issues that affect them politically," he says. "To me, what's always been scary is corporations using their superior resources to drown out other voices. But in the online world, they cannot drown out other voices. They can't even push their content on an unwilling audience. ... At the end of the day, the reformer groups and Carol Darr are afraid of free speech."

Finding the Loopholes

Ms. Darr concedes one point to her critics: She acknowledges that she should have said more explicitly that she understood there was no logical basis on which the election commission could grant the media exemption to NBC (which is owned, after all, by General Electric, a major military contractor) and deny it to Daily Kos.

"If I could do it over again," she says, "I would be more clear on that point. You've got to give it to them. But the point I was trying to make was, most of y'all have not yet understood the implications of this."

And on that point — the gloomy long-term implications — Ms. Darr does not retreat. She fears that, even though special interests haven't yet exploited the media exemption online, they will find a way before long. Somewhere out there, she believes, there is a 23-year-old budding Karl Rove or James Carville, poring over the new regulations, looking for new ways to game the system.

She knows, Ms. Darr says, because she was once that person herself. In the 1980 campaign, she says, she was one of the lawyers on the Carter team who first calculated how to exploit "soft money" (which at that time essentially meant funneling contributions through the state Democratic parties rather than the national party).

"I come at this having seen it up close, on the ground," she says. "I left that world because I ended up feeling like the proverbial piano player in a whorehouse. I was just facilitating a corrupt process. And for these bloggers to say, 'Oh, you don't know what you're talking about' — you know, I think to myself, You weren't even born yet, some of you."

Meanwhile, now that the Federal Election Commission's final regulations have been issued, the combatants of 2005 are pausing for breath.

"It's surprising how much praise is coming from across the spectrum," says Richard L. Hasen, a professor at Loyola Law School, in Los Angeles, who writes a blog called ElectionLaw. "That says to me that they probably did something right. ... I think there's a lot of praise to be given here to the FEC, which isn't an agency that's often praised."

But no one expects the peace to hold for long. "Everyone is kind of thinking that this will be fine for the next couple of years," says Kirk L. Jowers, a professor of political science at the University of Utah who has written extensively about campaign finance. "But as technology and everything else evolves, there will almost certainly be a cry from each side, saying that we need to regulate such-and-such now, or this is too restrictive here."

It has been painful for liberal bloggers to find themselves opposed to Common Cause and other pro-reform organizations, says Mr. Bonin, the Philadelphia lawyer.

"The reform groups are generally progressive groups that have been our allies in the past and I imagine will be in the future," he says. "I just think that in this case they failed to understand the technology. ... I really think that the Internet helps to fulfill exactly what the supporters of campaign-finance regulation have been seeking all along."

In any case, the temporary alliance between the Daily Kos and RedState is over, at least for the moment. After the new regulations were announced last month, a commenter at Daily Kos wrote, "Good for the FEC. ... Good that we can be rid of the bedfellows we had to endure for this. Never trusted them. Never will. Wash the sheets, air the room. Nah, burn the sheets."