One interesting point they failed to cover in depth in that article pertains to how the FEC will regulate the negative side of the Internet, which escalated to new levels last year. As the last election cycle proved, negative online ads were effective at promoting messages. Arguably, the Swift Boat Veterans for Truth was the most effective online campaign during the 2004 presidential race. Because the Swift Boat site was viewed by hundreds of thousands of visitors, and mentioned the name “John Kerry” through out, would they in effect be endorsing John Kerry based on these proposed FEC laws?

Lastly, maybe the FEC will have to hire Technorati to track and set values to all the hyperlinks on blogs.

to turn progressive blogosphere against McCain-Feingold. Commish Brad and his buddies knew this interview would spread like wildfire through the blog world and he's hoping we piss our pants to try to put it out. Don't give him the thrill.

I'm amazed-- well, not really-- about how many of the blog commentaries devolved into "Brad Smith is a libertarian out to wack Democrats!" Or "don't you dare touch with my first amendment!" With campaign-finance reform, the government already has.

Here's as best as I understand the accounting of in-kind donations: If you cater a party at $50/plate, and then raise $1050 from each person, well then you've effectively given that $50 in-kind. On the other hand, I don't think the laws account for your volunteering your nonprofessional time. I think. I wish I knew. Maybe you draw the line with professionalization. Why be professional, you ask? Well, the people who give out press passes also want to draw the line somewhere, no?

So what I'd like to see is someone explain how this should work the spirit of the law. I think Zephyr did that in calling for greater transparency. Furthermore someone should suggest some scenarios we think violate the spirit of the law.

We're working this weekend on figuring out the nuts and bolts of the FEC and BCRA language and giving some specific examples of how and when blogging might be treated as an in-kind contribution.

In the meantime, it looks like bloggers have been dealt another blow. A court in California ruled yesterday that bloggers don't have the same legal protection as traditional journalists when it comes to confidential sources.

Here's what CNET is reporting:

In the preliminary ruling, issued Thursday, a Santa Clara County Superior Court judge said that the three blogging sites, which had disclosed information about Apple's upcoming products, did not have the same legal protections that shield journalists, according to the San Jose Mercury News.

Rick Hasen, who blogs regularly about election law, posts a clarifying comment from Trevor Potter (a former Republican FEC member) of the Reform Institute (which is close to McCain and a big supporter of BCRA), on his blog here: http://electionlawblog.org/archives/003045.html. We'll be digging further into this subject, as it obviously merits close attention.

After speaking with former FEC Commissioner Trevor Potter and PDF Contributing Editor Mike Krempasky this morning, it seems clear to me that we have two options here. [On a side note, Mike has started a useful blog on this topic and also spoke today with Bradley Smith, the FEC commissioner who started this whole discussion.]

Basically, the FEC is going to propose some new rules regarding bloggers and online-only journalists who expressly advocate for the election or defect of a particular federal candidate. And unless the FEC or Congress act to make "regular online publications" part of the press exemption, our only fall-back is the $200 reporting threshold for independent expenditures. If we can prove that a blog posting or any other form of independent, express advocacy costs less than $200, our work does not need to be reported and does not count as an expenditure.

[It gets slightly more complicated if a blogger has incorporated his or her site, as that could mean they were making a corporate contribution. Same applies to journalists for Slate and Salon, as they are clearly working for incorporated sites. In this case, getting under the press exemption would be the only option.]

But, assuming we’re only talking about non-incorporated bloggers, we’ve got two choices:

1. We can lobby Congress and the FEC before and after the new proposed rules appear -- sometime within the few weeks. Let them know that bloggers and online journalists deserve to be covered by the press exemption.

and/or

2. Prove that a blog posting advocating for defeat or election is worth less than $200.

It appears that these are our only two options. With any luck, the FEC will write rules that place our community firmly under the press exemption. Otherwise, we've got a real mathematical problem on our hands – and I’ve misplaced my TI-85.

To truly make the Internet safe for everyone – bloggers and online journalists, alike – getting under the press exemption should be our main focus.

As we discussed yesterday - if the FEC opens the press exception to bloggers, there is a strong possibility that the standard for "press" will be so loose that anyone who claims it gets it.

At that point, there is a danger that it would run afoul of the court's directive to not exempt the internet.

I agree that extending the media exemption to cover bloggers is the simplest solution, but I'm not sure it is one that deals with the potential for mischief that may yet occur. Here's a hypothetical example:

If Josh Marshall links to the Kerry for President site and generates 5,000 visitors to Kerry’s home-page in a day, should this be treated as the same as The New York Times referring to Kerry in a news story and including a link on their website to his homepage? If those 5,000 Marshall-prompted visitors give Kerry $30 each (not an atypical online gift) totalling $150,000, hasn’t Marshall’s contribution been rather significant? Or, if all the contributions are small, might we say--this is what grass-roots participation is supposed to look like.

To make it more complicated but still plausible. What if George Soros took out $20,000 worth of online ads to plug his new book on Marshall’s site, and said, by the way, I’d like you to make friendly editorial comments about the Kerry campaign every day, and to not disclose that we have that agreement, and Marshall's huge audience followed his guidance and gave Kerry $150,000, how should we understand this? I'm not suggesting that Marshall would do this--especially the non-diclosure of the deal--but such a scenario appears to be giving a large donor like Soros a way to make an indirect contribution to Kerry's campaign significantly larger than the direct $2000 per election donation he is allowed to by law. A newspaper wouldn't make such a deal with an advertiser, but many (if not all) blogs have no clear distinction between editorial and advertising.

I'm not happy to raise these questions--and I generally believe that the best solution to the problem of big money in politics is not to write ever-more-complicated rules aimed at trying to channel and restrain political speech, but to expand political speech to enable candidates that aren't the beneficiaries of large private contributions to speak as well, but making sufficient public funds available to run a viable campaign. I also think we ought to try to encourage more people to participate in the political debate by ensuring that everyone who wants it can afford a decent connection to the internet (the same way that public policy now requires subsidizing free or low-cost dial-tone for low-income telephone users). And I'd build a big bonus in for campaigns to focus on small contributions, either through the Clean Elections models in Maine and Arizona ($5 qualifying contributions to earn public grants), or multiple matching funds for small donations (NYC gives 4-1 for up to $250), or tax credits of up to $100, say, for any kind of political contribution (though current evidence suggests this will mostly be used by the wealthy).

But all that said, you've still got the real potential for bloggers with lots of traffic to become de facto conduits for big money contributors seeking a way around current rules limiting how much they can directly give to candidates.

You bring up a very valid point. I think it's an issue of enforcement. It's certainly true that a big donor could pay a blogger to post positive comments about a candidate, but just because there is the potential for abuse doesn't mean that bloggers and other online journalists shouldn't be covered by the press exemption.

I would say that there is room for abuse in all forms of journalism -- Jayson Blair at The New York Times and Rathergate at CBS quickly come to mind. Hopefully, bloggers will realize that (1) come 2006, it will be illegal to coordinate with candidates over the Internet and that (2) with the privilege of falling under the press exemption (fingers crossed) comes the responsibility to follow the spirit and letter of the law.