Stand tough FEC! We've got your back!
In all of the chaos surrounding the presidential election, you may have missed a little news item last September.
It seems that a U.S. District Judge, Colleen Kollar-Kotelly, ruled that the exemption given to the Internet from the Bipartisan Campaign Reform Act -- a.k.a. McCain-Feingold -- was illegal. Her ruling, in legalese, was that the Federal Election Commission's "exclusion of Internet communications from the coordinated communications regulation severely undermines" that law's purpose.
In plain language, it means that the judge wants all political advertising on the Internet to be regulated, in the same way that it is on television, radio and in print.
If ever there was a time for liberals to make common cause with conservatives about the dangers of judicial interference, this ought to be it. What is at stake is the freedom of the Web. That freedom, though it can sometimes be disgusting or scary, is also one of the glories of our time. Messing with that freedom should not be done lightly -- and certainly not just for congruence with an already suspect set of regulations. The spirit of the law in this case should be subservient to the spirit of the age.
Interestingly, in one of those rare examples of a government agency actually understanding the technology revolution, the Federal Election Commission has done yeoman's work over the last three years fighting to keep political advertising on the Internet exempt from McCain-Feingold. This was in keeping with the larger goal -- as expressed by both the Bush and Clinton administrations -- of keeping the Web wide open to let it achieve its full potential.
We are a long ways towards that goal -- and in politics, the Web has enabled an efflorescence of political discourse unseen in this country since the Federal Era of the early 19th century. Some of this discourse is brilliant, some of it scurrilous, but all of it is passionate. The Internet unquestionably drove the 2004 presidential elections, from the Swift Boat Veterans to the Soros-funded sites to Moveon to the Powerline/FreeRepublic challenge to Dan Rather. It was also, I suspect, largely responsible for the astonishingly high turnout of voters to the polls -- not to mention the polarization of the electorate into two energized camps.
Exploring the Web's Potential
Isn't this exactly what we were looking for? Ever since I was teenager in the Nixon years, I have read complaints about the apathy of American voters, the failure of the media to fully investigate the claims made by the candidates, and the lack of difference between the two parties. Well, those problems seem to have been solved by, of all things, technology. The trick was to invent a new medium that could bring millions of words and thousands of images into every home at the touch of a button, that could give individual citizens the opportunity to easily talk back or write their own political commentaries … and then get out of the way and let the games begin.
It worked magnificently. Were there problems? Sure; how could you have that much human activity and not have abuses? During the campaign we saw on the Web false information, fraud, misquotes, libel and slander, paid political operatives representing themselves as objective journalists, and a millions of lines of really dumb, uninformed commentary.
And wasn't it wonderful?
Only a federal judge could be so misguided and rigid. And since she can't simply nail this cultural Jello to the wall, she's decided to first dump it into a baggie called McCain-Feingold.
Why Regulate the Web?
Leave aside the fact that McCain-Feingold was an utter failure in the last election, managing to hinder traditional political campaigning while opening the floodgates to a host of sneaky new maneuvers. What is the reason for wanting to regulate political discourse -- especially the vox populi -- at all?
That it might be manipulated by wealthy and powerful interests? How much did billionaire George Soros spend last year -- for nothing? That it might debase the quality of discourse? George Bush was attacked with a viciousness unseen since Lincoln-Douglas -- and he still won. And what of the fear that advocacy groups will coordinate their efforts with the more regulated campaigns, and thus get around campaign reporting laws? The Dems seemed to have done more of that in the last election -- for all the good it did them.
Remarkably, the FEC understood -- which is why it fought all of those years to keep the Web wide open. It did so by jumping on a loophole in McCain-Feingold that managed to remember everything from television to billboards, but luckily forgot to mention the Internet.
That happy arrangement held until last September and Koller-Kotelly's ruling. Her reasoning was by the book: "To permit an entire class of political communications to be completely unregulated irrespective of the level of coordination between the communication's publisher and a political party or federal candidate, would permit an evasion of campaign laws." That's pretty definitive.
The Internet Is a Different Medium
Tragically, what the judge failed to notice is that the Internet is not like television, with its finite number of channels of information delivery. Nor is it like newspapers, with their increasing monopolies in communities large and small. Rather, it is a medium of almost infinite reach, depth and scalability -- the equivalent of having 5 million television channels or 50 million different newspapers and magazines. Pick a viewpoint, no matter how nutty, and it will be there on the Web -- and counterbalanced by 20,000 contrary arguments. It is a forum that demands not more regulation, but less; not more oversight, but more sunlight. Not mandated disclosure, but competitive exposure of misbehavior.
The Federal Election Commission understands this, to its credit. But it also understands the law. In a worrisome piece of news reported this week by the political newspaper Roll Call, the FEC announced that it is planning next month to review its position in light of the judge's decision.
You know what that means. The FEC, like any good government agency, long ago learned the Al Capone Rule: never mess with a federal judge. But the announcement is also a cry for help. The commission is signaling that it has carried the ball this far for Internet freedom, but can go no farther. Not without a change in the campaign laws themselves.
That means it's up to us. The fact that you are reading this Web-based column suggests that you appreciate the value of free and open discourse on the Net. Whether you value the Democrat Underground or Kos or Instapundit or NRO or, for that matter, ABCNEWS.com, this news affects you personally. This might be a real good time to send an e-mail your congressman, or a thank you note to the Federal Election Commission, asking it to keep up the good fight.
…Wait a minute. Am I still allowed to suggest that?
Michael S. Malone, once called “the Boswell of Silicon Valley,” most recently was editor-at-large of Forbes ASAP magazine. He has covered the Silicon Valley and high-tech for more than 20 years, beginning with the San Jose Mercury-News as the nation's first daily high-tech reporter. His articles and editorials have appeared in such publications as The Wall Street Journal, The Economist and Fortune, and for two years he was a columnist for The New York Times. He has hosted two national PBS shows: "Malone," a half-hour interview program that ran for nine years, and in 2001, a 16-part interview series called "Betting It All: The Entrepreneurs." Malone is best known as the author of a dozen books. His latest book, a collection of his best newspaper and magazine writings, is called "The Valley of Heart's Delight."
This work is the opinion of the columnist and in no way reflects the opinion of ABC News.