The FEC, Regulation of Blogs, and Sir Thomas More

Patterico has announced a pledge, that if the FEC announces regulations that impact blogs, he intends to defy them and challenges others to do the same.    Xlrq takes a more nuanced view; he suspects that any regulations might be fairly modest, but intends to pretty much ignore any regulations that  require any special action on his part.

I agree with Xlrq that it is unlikely the FEC will promulgate regulations that have any discernible impact on the vast majority of bloggers.  But I will disagree with just about everyone, I think, in suggesting that some FEC regulation of blogs might be entirely legitimate. 

First, while I disagree strongly with McCain-Feingold, the government clearly has the constitutional right to have some  regulation of money in politics.  Moreover, I think some regulation of money in politics is good public policy.   Politicians have a great deal of power, and citizens have a right to know who is giving them money and doing them favors.  (My ideal would be to have full public disclosure of all contributions (whether cash or in-kind)  with no restrictions on amount).

So, where do bloggers fit in?  Look at this post from Kos, this isn't free speech, this is fund raising, pure and simply, which would have to be reported as an in-kind contribution even if it appeared in a newspaper.  And, given the traffic on Kos' site, the contribution probably has substantial value.   And remember, Kos was a paid consultant for the guy for whom he is fund raising.  So, if we accept that some regulation of money in politics is acceptable, why should Kos escape regulations because he might be wearing his pajamas?

So, here is where I come down.  In the unlikely event that the FEC promulgates regulations that impact little-ole-me, I intend to try to comply with them if I can without compromising what I am trying to do with this blog.   I am sort of with Sir Thomas More (well, the character playing More) in "A Man for All Seasons" that one should obey even those laws with which you disagree, if one can:

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Update:  Master of None is with me on this, everyone else in on my case.    Still, as someone who used to put people in jail for violating laws that some of them probably thought were wrong (I was in the Narcotics Section of the U.S. Attorneys Office in L.A.) it would be hypocritical for me to think it was okay for me to pick and choose which laws should apply to me and which it would be okay for me to ignore.

Comments

[Xrlq]

First, while I disagree strongly with McCain-Feingold, the government clearly has the constitutional right to have some regulation of money in politics.

One of my law school profs frequently mocked the word "clearly," noting that it's almost never necessary to say "clearly" when the statement following really is clear - and conversely, if that statement is not clear, prefacing it with "clearly" will not make it so. This seems to be a prime example of that. Article I, Section 8 "clearly" confers a number of powers on Congress, but none discuss the regulation of political speech or anything that can "clearly" (or even obscurely?) be read to cover it.

Even if such a "clear" power existed, it would have to be tempered by Amendment I, whose "Congress shall make no law..." language is pretty sweeping. If Justice Stevens's facile observation that "money is not speech" is correct, then what on earth is flag burning? Both are, outwardly speaking, conduct rather than speech. Both are, nevertheless, expressive in nature, yet one is protected because it communicates a political view, while Congress has been openly invited to regulate the other to the hilt for that very same reason. The logic underlying that is about as "clear" as mud.

Perhaps I'm missing something, but from where I sit the only thing that's "clear" about McCain-Feingold is that five out of nine Supreme Court Justices believe it's constitutional. That doesn't mean it is "clear" they were right. Quite the contrary; the fact that four out of nine Justices disagreed with them suggests that it's anything but that. Nor is it clear from a case upholding McCain-Feingold generally that all 5 rogue Justices will rule the same way if/when a blogger is prosecuted for blogging. It only takes one.

[Roscoe]

Interesting comment, and I will be more careful to keep close tabs on my adverbs from now on.

That being said, the central point of your argument revolves around a sleight of hand. I didn't say that the government "clearly" has the power to regulate political speech, what I said was that the government clearly has the constitutional power to regulate money in politics. Putting McCain-Feingold aside for a moment (i.e. the direction regulation has taken) I can't see how anyone can disagree with this point, you can't contend that--for example--secretly delivering suitcases full of cash to politicians is constitutionally protected.

You are the one who automatically equates giving money or other conduct with speech, which is a position shared by a majority of Supreme Court justices but which is something that I have serious questions about. (If it were left up to me, I wouldn't say that burning a flag is speach at all, I think the Courts have gotten that one wrong). So, I find myself being accused of "clearly" thinking something that I "clearly" disagree with.

Oh well, thanks for stopping by.

[Xrlq]

That being said, the central point of your argument revolves around a sleight of hand. I didn't say that the government "clearly" has the power to regulate political speach, what I said was that the government clearly has the constitutional power to regulate money in politics.

I don't see how you can separate the two. Congress routinely circumvents constitutional and statutory prohibtions by funding what it can't regulate (e.g., national speed limit in the 1970s, or uniform drinking age today), or refusing to fund programs it lacks the votes to kill outright (e.g., felons like Mr. Bean seeking restoration of civil rights). "Freedom of the press" means nothing if you aren't free to spend your own money money to buy, operate and maintain one. Would anyone tolerate an equally Orwellian version of "freedom of religion" that purported to allow everyone to attend any church, synogogue or mosque he chooses, but prohibits him from contributing any money to it?

If there were a tenable distinction between political contributions and speech, that distinction disappeared as soon as the FEC floated the idea that a political statement on a private blog may constitute an in-kind contribution to somebody's campaign. One minute they're arguing that "money is not speech," now they're arguing that speech is money!

BTW, if your example of suitcases full of money is to a politician personally, and not to his campaign, then I agree government can regulate that. Contributing to a campaign is, for all intents and purposes, an expression to the effect of "I support this candidate and want his message to get out." Giving him money for his personal use, by contrast, is just a bribe.

[Patterico]

Roscoe:

I believe in obeying the law, too. But the First Amendment is in the Constitution, and as such is the supreme law of the land.

The Supreme Court may say otherwise, but in this case it's wrong. And it's not the only time that's happened.

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