And the Fight Goes On …

On Friday, in another skirmish with respectability, bloggers potentially took one between the eyes in their quest to be granted whatever rights and protections journalists have. (And we choose the word “whatever” for obvious reasons.)

The latest round came when a federal appeals court ordered the Federal Election Commission (FEC) to expand the McCain-Feingold campaign finance law to include the Internet — thereby making it more difficult for candidates and political groups to raise money via the blogosphere.

Judge David S. Tatel, in the majority opinion for the three-member panel, wrote that excluding the blogosphere from McCain-Feingold would “fly in the face of [the purpose of the law],” because leaving the Internet regulation-free would “reopen the very loophole the terms were designed to close.” As a result, this would allow candidates and private groups to “rely on winks, nods and circumlocutions to channel money in favored directions — anything that makes their intention clear without overtly ‘asking’ for money.”

The crux of the issue is the ability of blogs to raise money for candidates and political organizations while being exempt from any “controlling legal authority,” as Al Gore once unfortunately put it. The ruling is a switch; until now, the federal government had shied away from regulating Internet content, with the FEC voting in 2002 not to extend campaign laws to Internet activity. That’s the ruling the appeals court has now shot down.

A few weeks before the court’s ruling, a group of bloggers testified before the FEC to plead their case to be considered “news organizations,” and thus exempt from campaign finance regulation. Protections that news organizations enjoy allow newspapers, magazines, television and radio networks to endorse political candidates without their endorsements being considered a campaign contribution. Up to this point, the Internet had been pretty much left out of the equation, but the large role 527’s and the blogosphere played in last year’s presidential election caused the FEC and the courts to take another look.

Duncan Black of Atrios told the commission last month that “I am troubled by the fact that participants in this emerging medium, which allows anyone the opportunity to participate in the national discourse at a minimum cost, would face stricter regulation and stronger scrutiny along with the potential for ruinous legal expense than would participants in media outlets owned by corporations such as Time Warner, General Electric and Disney.”

Black is part of BlogPAC, a political action committee that raises individual contributions to purchase ads for progressive politicians and causes. Made up of some big liberal blogs including Daily Kos, Talk Left, Ameriblog and Pandagon, the group was founded in 2004 and since then has “raised money to buy some $35,000 worth of online ads,” according to an article on Alternet.

Another group that is fighting for blogs to be treated as news organizations, The Online Coalition, wrote a letter to the FEC stating, in part, that, “The Bipartisan Campaign Finance Reform Act of 2002 was intended to prevent unlimited soft money contributions and regulate electioneering advertising, not to stifle free speech or grassroots activities on the Internet that serve the common good.”

This is all well and good, and on First Amendment grounds we fully support the right of bloggers to be granted the same editorial protection against lawsuits that news organizations have. But there is a compelling argument on the other side, as well.

Say that blogs are granted the same protections as news organizations. What is to stop, say, corporations or trade unions from setting up stealth blogs to promote their agenda, while collecting funds from the public or to spend on ads to promote their own interested point of view?

What’s more, campaign finance laws are there for a reason, and it’s a little presumptuous of bloggers to hold themselves above the system. Many partisan bloggers are little more than political activists, and as activists they raise funds for their own pet political causes, something reporters don’t — and can’t — do. In this, they should be included under campaign finance laws.

In the end, it’s a complicated issue, and both sides have salient points. Here’s hoping that the bloggers, the court system and the FEC can arrive at some middle ground where the blogosphere remains a free and open forum for political talk, while limitations on campaign financing are also upheld.

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Paul McLeary is senior editor of Defense Technology International magazine, and is a former CJR staffer.