The 2004 election cycle marked the first time the Internet played a substantial role in U.S. presidential campaigns, from Howard Dean’s successful Internet fund-raising to publicity for the swift boat veterans to criticism of Dan Rather and “60 Minutes” to scores of individual bloggers. Political scientists and other students of politics could be debating the actual impacts for years to come.
If the Federal Elections Commission has its way, that will turn out to be the only election in which freewheeling blogging and online political punditry will have had a chance to have any impact on a national election.
Actually, the elections commission in 2002 exempted the Internet from some of the more absurd and onerous dictates of the 2002 McCain-Feingold law regarding spending on broadcast, print and mass-mailing advertising that is “coordinated” with political campaigns. Last September, however, U.S. District Judge Colleen Kollar-Kotelly ruled that it had done so mistakenly, and doing so “severely undermines” the law’s purpose.
So in March and April, the commission — the Republican members having failed to get enough votes to appeal Judge Kollar-Kotelly’s decision — will start to wrestle with dozens of ticklish questions:
Is a link to a campaign Web site a donation to that candidate? Is it a donation if a Web site links to all candidates for a given office? Can a blogger who has contributed money to a politician continue to blog, or will blogs be viewed as additional, unlawful contributions? How do you value a favorable mention on a blog? Will online news sites be viewed as news media, exempt from restrictions? If so, on what grounds, and who decides?
The difficulty of such judgments highlights the inherent difficulty arising from the McCain-Feingold legislation. Billed as an attempt to control corruption or the appearance of corruption in politics, the law inevitably controls political speech and does so most explicitly when political speech should be freest — during an election.
Judge Kollar-Kotelly is probably right to demand that if restrictions are to be placed on other expressions of support or opposition to political candidates, they should be applied to the Internet as well. Our hope is that the restrictions will finally be viewed as so absurd that Congress repeals McCain-Feingold.