| Subject: news of the day 3/25/05 |
| From: Rick Hasen |
| Date: 3/25/2005, 9:07 AM |
| To: election-law |
The Washington Post offers this
report (link via On
the Hustings).
I received some complaints yesterday about statements in my Personal Democracy Forum commentary suggesting that FEC Commissioner Brad Smith was engaged in hyperbole (and creating an intentional blogstorm) when he gave this C|NET interview predicting a coming crackdown on blogging. How did I know what the FEC was considering internally?
I had no inside information on the FEC's internal deliberations; it is a black box. I made my assessment based upon the likelihood that the FEC Commissioners (whose actions I watch fairly closely) would agree to a coming crackdown on blogging.
But now we have some inside information on the FEC's thought process. Someone faxed Mike Krempasky this March 10, 2005 FEC staff draft of the proposed rules for Intenet communications (the documents have a fax date stamp of 3/24, with a time of just after 8 pm). The draft most certainly takes a much more regulatory position than the what appeared in the later draft circulated earlier this week and approved almost in the same form by the FEC commissioners.
What lesson to learn from this? Krempasky, writing at Redstate.org, states: "[W]e can prove that 1) Smith was right, and then some, 2) Had Smith not rung that bell, we may well have regretted it, 3) those on the FEC that criticized smith and told bloggers, in effect, to 'chill out' weren’t being honest with us and 4) the FEC should be viewed with the highest suspicion throughout this regulatory process." See also this C|NET news report, which begins: "Political bloggers and other online commentators narrowly avoided being slammed with a sweeping set of Internet regulations this week."
I remain skeptical that bloggers "narrowly avoided" sweeping regulations. As Krempasky acknowledges, this was a staff recommendation. In my experience, the staff has been more oriented toward regulation than the commissioners. I continue to believe that even if Smith said nothing, there's virtually no chance a majority of the commissioners would have approved the earlier March 10 draft. Smith certainly would not have, and based on the comments of Toner and Weintraub, along with Mason's views stated at the hearing yesterday, there was at least a majority (and likely all 6 commissioners) who would not have approved these March 10 staff-proposed rules even as the preliminary rules for a rulemaking.
Perhaps I went too far in accusing Smith of hyperbole, but based on publicly available information at the time I wrote, I think it was fair to believe that sweeping regulation of blogging was never a realistic possibility.-- Rick Hasen Professor of Law and William M. Rains Fellow Loyola Law School 919 Albany Street Los Angeles, CA 90015-1211 (213)736-1466 (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlawblog.org