Me and the ACLU

I was reading the op-ed page of the Wall Street Journal today when I noticed a piece on the McCain-Feingold campaign finance law. I'll be up front and say that I've been against this one more or less from the beginning, but things seem to be developing to the point where I'm going to have to (gasp!) agree with the viewpoint of the ACLU.

A little background: in 1998, a Connecticut man named Leo Smith built a website advocating the defeat of then-CT Representative Nancy Johnson. The Federal Election Commission got wind of this and issued an advisory opinion (AO 1998-22, a summary of which is available here in .pdf form) stating that not only should Smith have posted a disclaimer about whether the site was authorized by his candidate, but that his costs for creating and maintaining it amounted to a political contribution. Here's the meat:

The Commission also concludes that—contrary to Mr. Smith’s assertion—there are costs associated with this web site. A portion of the overhead costs could be apportioned to each web site created by Mr. Smith. Those costs include the domain name registration fee, the amount invested in the hardware (computer and peripherals) that created the web site and the utility costs associated with creating and maintaining the site...[he is] required to file independent expenditure reports with the Commission if the total value of the expenditures exceeded $250 in 1998.

OK, this is plenty scary if you ask me. Fast-forward to 2005 and we find the FEC rethinking the issue of Internet commentary. Web speech was specifically exempted (by a 4-2 vote of FEC commissioners) from McCain-Feingold campaign finance controls back in 2002, and its impact on the past election cannot be understated.

So U.S. District Judge Colleen Kollar-Kotelly's decision in September 2004 (Shays vs. FEC; the whole 157-page opinion may be found here) comes as something of a monkey wrench. She stated, in part, that "The commission's exclusion of Internet communications from the coordinated communications regulation severely undermines" the spirit of McCain-Feingold.

The suit's plaintiffs, Christopher Shays (R-CT) and Marty Meehan (D-MA), hit the appropriate nail in their press release when stating "The bottom line is, the FEC’s interpretation of our law had no basis in the reality of the statute." In short, the FEC was charged with developing guidelines for the implementation of McCain-Feingold, and the court found that those guidelines were faulty.

So where does this leave blogging as it pertains to political communications? In limbo, apparently. Republican commissioners seem to think that while the advisory opinion made in Leo Smith's case would not hold water today, but that there is considerable grey area around who constitutes a "journalist" and what "coordination" with a campaign comprises.

The Democrats' view appears to be that this is being overblown by "partisan scaremongering tactics." But I think it's interesting in this regard to read Dem. FEC commissioner Ellen Weintraub's CNET piece on the subject...there's something about the tone that seems both defensive and slippery, and her "scaremongering" quote doesn't leave me feeling warm and fuzzy.

Will the government step in and determine that my ramblings constitute "coordination" with the GOP? Will the FEC come to my house to see how much yard space my campaign signs are taking up, and develop a "contribution" amount depending on my mortgage? It seems unlikely; but at the same time, it bears watching. Republican or Democrat, we all know the government is capable of doing ridiculous things when it (forgets to) put its mind to it.