This story begins with Congress, that collective of gutless wonders whistling past the graveyard . . . where our liberties lie buried. Our bloggers' rights wouldn't have faced the FEC knife had Congress not passed legislation allowing itself to regulate political speech in complete contradiction to the Constitution. Cleverly, Congress assigned the dirty work over to the FEC, so those same politicians can decry any unpopular restriction as a rotten regulatory application of their sweet-smelling law.
Not that law matters to today's career politician. After all, they ignore the ultimate law regarding speech, the First Amendment. This most important chunk of our Constitution specifically denies to the Congress any lawmaking role that would "abridge" freedom of speech. Today, when most congressmen hear the word "abridge," they of course think of "nowhere" and some of the all-time great pork-barreling feats. But the word actually means that Congress cannot in any way diminish or lessen our rights to speak freely.
Thus, for Congress to create a complex regulatory system for political speech — as does the McCain-Feingold statute, as do all the other campaign finance laws going back to the aftermath of Watergate — isn't even a close call constitutionally. They can't do what they've done.
Speech Law: a Many-Tentacled Thing
The Court chose not merely to uphold McCain-Feingold, it went on to encourage incumbents in Congress — whenever they see a need (read: feel threatened) — to clamp down in new ways and on any new form of communication. The Court recognized that freedom of speech is hard to squash and asked Congress to be ever-vigilant.
Hence, had the FEC regulated bloggers, it would have been fully legal. At least, it would have been fine with our current parallel-universe judiciary.
So, what does this FEC decision really mean? Well, here you go: bloggers are more of a threat to incumbent Washington when regulated than when left alone.
The powers-that-be want apathy. They know there is no public support for FEC regulation of blogs, emails and links between websites. And they know that to attempt to regulate the Internet would illuminate just how far the federal government's anti-speech tentacles may reach.
Those federal tentacles have more reach when folks aren't paying attention.
Moreover, no matter how much bloggers may cause headaches for politicians, they don't move that many votes. Congress is not sufficiently scared of the blogosphere to take any serious risk. Certainly not when they are already hard at work trying to neuter 527s, which can and have moved votes in elections.
These 527s can accept unlimited contributions and in the last election cycle functioned much the same way that non-profit issue groups used to, before those groups were effectively put out of business by McCain-Feingold. The 527s on the left savaged Bush. Those on the right, such as Swift Boat Vets for Truth, savaged Kerry even more effectively.
Whether left, right, or in the middle, Americans were well-served to have the opportunity to hear these viewpoints, to weigh their arguments and to use the information in making political decisions. That's what freedom is all about.
Congress's desire, on the other hand, is to regulate, control, and suppress speech, especially speech apt to be used against the incumbents in Congress. Therefore, incumbent Washington is concentrating its fire on 527s. An elementary decision: silence the aerial bombardment before picking off individual foot-soldiers.
Yes, it is nice when the FEC allows some speech. But within the parameters set by Congress, I think we all know how this movie ends.
Of the FEC decision not to regulate the Internet, yes, it could have been far worse. When it comes to government, we know things can always get worse. That's why even a decent decision to permit certain speech in one particular forum provides no solace. It can't make up for the fact that our right to speak has been abridged, regulated away.
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