Now some of you will immediately alight upon the notion that the FEC is in fact not Congress, but instead an independent regulatory agency. Fair enough, except that it was created by Congress and any enforcement or rule-making powers it has must come from Congress. For all intents and purposes of the U.S. Constitution, the FEC is Congress.
Amid the explosion of political activity on the Internet, a federal court has instructed the six-member Federal Election Commission to draw up regulations that would extend the nation's campaign finance and spending limits to the Web.
The FEC, in its initial rules, had exempted the Internet.
Some of you will then move on to a discussion of libel and slander laws and how we can't run around will-nilly shouting "Fire!" in crowded movie theaters. That would be a great point except for the fact that not a single one those libel, slander or defamation laws is FEDERAL. You see, Congress can make (and has made) laws concerning conduct on federal property, such that certain speech may be prohibited as to time and place. What Congress cannot do, nor has it ever had the power to do, is make any law controlling the content of one's speech because such a law regulates or inhibits free speech. "But the States can do it then!" I hear you lament? That's not only a dubious suggestion, it is also irrelevant to this particular discussion. Simply put, there is no technical parsing or legal wrangling which can defensibly argue that "Congress shall make no law ..." means something other than what it says.
Accordingly, I find the McCain-Feingold legislation patently un-Constitutional and any attempt to extend it's unlawful prohibitions to the blogosphere should be met not only with loud contempt but also with resilient defiance. On this point, I think Bruce McQuain gets it exactly right:
Now there are two schools of thought here. One that takes up Toner's theme that blogging should be exempt and that Congress should legislate that exemption under the auspicies of free speech rights.
There are others who say that the argument gives credence to the right of the government to regulate bloggers that they really don't have under the First Amendment and that we should instead be telling them to butt out (under the provisions of the First Amendment) and essentially ignore anything they come up with. Or said another way, continue with business as usual, and if they pass a law restricting or regulating blogging, ignore it by engaging in massive civil disobedience.
I'm inclined toward the latter response for a number of reasons. First, I completely agree that it is a free speech issue and it is McCain-Finegold which is the problem here, not political blogging. The entire point of the free speech portion of the First Amendment was to protect political speech. Now we see an attempt to regulate it. I see that M-F as an illegitimate law which infringes on the basic right of a blogger to espouse freely his or her political opinion as guaranteed by the Constitution.
All that to say, I plan on ignoring any FEC regulations as they regard blogging.
Now, Bruce's defiance is much more meaningful in the grand scheme of things, given that QandO generates far more hits than most sites, and infinitely more than this one. Nonetheless I too will actively resist and defy complying with any regulation coming from McCain-Feingold. And by "actively" I mean that I plan to flout the law as openly as possible, making my intentions well known that I consider this particular piece of naked power grabbing to be a flagrant violation of every American's Constitutional rights. I encourage others to do the same.