No Statutory Protection for Bloggers

Campaign finance "reform", aided by a series of disastrous court rulings, continues to shred the First Amendment's protections for political speech. Some in Congress, however, are fighting back. Valiant efforts by Rep. Jeb Hensarling (R-Texas) and Rep. Mike Pence (R-Ind.), and others to protect the Bill of Rights have substantially advanced the debate. Their legislation, H.R. 1606, Online Freedom of Speech Act, was defeated on the House floor last Wednesday, but a majority of Congress supported the bill. However, Congress was considering the legislation under the “suspension calendar” which requires a 2/3 majority vote. The bill did not meet this threshold and failed to pass.

The will of Congress was to amend the Federal Election Campaign Act to exclude Internet communications from the Act's definition of "public communication." The bill is commonly regarded as the "blogger protection" bill since it addresses concerns that bloggers who regularly engage in mass public communications will become subject to federal campaign finance regulations—- especially if they reference a federal candidate 30 days before a primary election or 60 days before a general election. Of course, all restrictions on speech content offend the Constitution, but protecting bloggers will be a good first step.

In the wake of the Congressional debate two years ago, and the ensuing outrage online, the FEC moved to enact rules the give bloggers the protections envisioned in the Blogger Protection Act. But FEC rules are a ffar cry from legislative protection for the internet.

The RSC blog explains why a law is still needed:

Two years ago, the Federal Election Commission (FEC) issued regulations that protected bloggers from being hampered by certain campaign finance laws. Under these regulations, bloggers cannot be considered to have made a contribution or expenditure on behalf of (or in opposition to) a candidate simply because they link to campaign websites or write about the positions of federal candidates. Additionally, blogs are treated as any other publication under the general media exemption from most campaign finance restrictions. Without such protections, bloggers could be subject to various limitations and reporting requirements under campaign finance law.

But these blogger protections are just regulatory—they are not in statute. As you may know, regulations can be changed without congressional action, and there’s no telling what a future FEC might decide to do. Furthermore, the FEC is currently defunct because of vacancies and a lack of quorum. Therefore, we shouldn’t put the freedom of bloggers in the regulatory hands of the FEC. Congress should protect them in law.

Congressional action is also neeeded because he courts’ performance in this regard is a national disgrace. In September of 2004, U.S. District Court Judge Colleen Kollar-Kotelly ruled that it was not clear in the Bipartisan Campaign Reform Act (BCRA) that the Internet should be fully exempted (even thought the Internet was not mentioned in the law) and directed the Federal Election Commission revise regulations to encompass Internet speech. And the U.S. Court of Appeals for the D.C. Circuit upheld the district court decision. The FEC rules are helpful, but only an act of Congress signed into law by the President can permanently stop this judicially-ordered regulatory re-write.

Sadly, the ruling should have been quite easy for Judge Kollar-Kotelly; for guidance she could simply refer to the First Amendment, which reads in part,

"Congress shall make no law … abridging the freedom of speech, or of the press…"

Let’s hope that a majority of Congress manages to read the First Amendment and moves to pass the Blogger Protection Act to protect those Constitutional rights online.