It's always been clear – or has it? – who's a reporter and what’s a story. But the recent debate over extending the press exemption that exists in current campaign finance law to bloggers and other Internet journalists has hit squarely on a touchy issue: fairness. How is it fair, bloggers ask, that Paul Begala and James Carville can work as paid commentators on cable news shows when consulting for a presidential candidate, while bloggers who work for candidates could be required to disclose the details of their financial relationships with campaigns?

Those questions were at the heart of testimony by bloggers before the Federal Elections Commission last month. But Washington, D.C. isn't the only place this question is being asked. Recently, a Washington state judge ruled that two radio talk show hosts who supported a state initiative and had allegedly been working with pro-initiative interests, along with the station employing them, must report their support of the initiative as in-kind contributions. The state court’s pronouncement left many wondering about the line between commenting on an issue and “participating” in a campaign.

The lines are getting pretty blurry. The thinking person has to ask: Are we placing a little too much faith in government regulation when it comes to protecting citizens from bias and opinion in political discourse?

Consider the Source
Political pundits and commentators are a unique species called on to wear several hats in the course of doing their jobs. One individual could be an advisor to several campaigns, private interest groups, and be a regular on-air pundit as well as a pithy source of off-the-record information for beat reporters and editorial writers. This accepted state of affairs (at least inside the Beltway) strikes bloggers as supremely unfair.

Washington attorney Bob Bauer – a Democrat who blogs – says bias and connections shouldn’t matter. After all, it's part of the process. “It is not clear why being paid by an interest matters, except to suggest that the argument that the commentator makes should be disregarded. Why, however, should it be disregarded? It might be an excellent argument, even a persuasive one, but the audience is being asked, in the name of ‘bias’ to dismiss it” says Bauer. “By turning to the question of bias or motivation, critics are seeking to steer away from substance to quick, highly personal or reactive judgments about the speaker."

In almost every aspect of public business, we have robust laws against conflicts of interest. Conflicts of interest laws may prevent an officeholder from casting a vote or participating in a decision from which he or she might benefit financially. In business situations, conflicts are disclosed to the affected party, and in some situations a waiver of that party’s potential objection to the conflict is also necessary. In both these kinds of cases, the law is concerned with a situation where a person with authority or control has a secret bias that may cause him to make decisions or give advice he wouldn’t otherwise, perhaps committing fraud against the person relying upon his judgment or leadership.

Bias as Political Necessity
But what expectations does an audience have about the class of professional opinion-shapers they see on television, listen to on the radio, or read in papers and online? Is it a violation of their expectations to learn that they are biased? That seems unlikely. Begala and Carville are Democrats and that's the party line they tout. Columnist George Will is a Republican and has advised presidents in that party, going as far as to help coach President Ronald Reagan in his election debate. Bias in politics is an essential occupational characteristic; if you haven’t got one, you're not working hard enough.

“Readers and viewers need to be -- and are becoming -- increasingly skeptical of the biases of everyone who's trying to persuade them," says Adam Bonin, an attorney representing several bloggers before the FEC. "Authority and readership comes from providing readers with useful information and analysis, regardless of who the speaker is, and credibility online comes from how well a speaker does that rather than who he is in the outside world.”

Currently, the Federal Election Campaign Act requires that a disclaimer stating who paid for a message be included whenever a political committee makes a disbursement for a communication “through any broadcasting station, newspaper, magazine . . . or any other type of general public political advertising.” Whenever anyone else makes a communication expressly advocating the election or defeat of a candidate or makes an electioneering communication (a broadcast ad featuring a candidate, targeted to his jurisdiction and run within 30 days of a primary or 60 days of a general election), a disclaimer must be included.

Traditionally, this law has been interpreted to apply to paid ads. But need it? If a campaign pays a consultant who is also appearing on TV aren’t the statements they make on the air potentially subject to the disclaimer requirement under a plain reading of the statute? “The fact is, the law has been construed so that hired guns appearing in programming do not come within the disclaimer requirement," FEC Commissioner Bradley Smith has observed. Is this any different from the “product placement” that Coke, Pepsi, Mustang and M&Ms do on television shows and in movies? As the rules of the game change for advertisers, it's not clear that Smith's conclusion is immutable..

Not-so-secret Agents
Just to complicate things, the Commission, in another context, is also reviewing its regulation defining the term “agent." This question centers around fundraising issues since candidates for Federal office (or their agents) cannot raise "soft" (that is, non-federal) money. There are no constraints on individual fundraisers, and they can be involved in a number of projects, some often involving soft money for state or local candidates, or for issues advertising. The FEC, trying once again to better define how it polices fundraising activity could define the term “agent” and require that if a commentator is dispatched by a campaign to say certain things, or give the appearance of that authority, he must include disclaimers revealing that fact.

The questions here may be just as tricky as the ones bloggers have encountered: What does it means to have “apparent” authority? Anyway, don't readers and TV viewers know better?

Happily, it is well beyond the scope of the FEC’s authority to police conflicts of interest among political actors. And the disclaimer approach is likely to join the drone accompanying all political ads, ignored along with candidates’ “Stand by Your Ad” statements and those rapidly-read financing details at the end of automobile commercials.

So perhaps in this instance we can rely on human nature and our love of castigation. If a blogger or commentator appears on a campaign’s disclosures as a funded tool, the other side will no doubt be pleased to bring that fact to the public’s attention. The commentator’s credibility will likely suffer. If it doesn’t suffer, and Carville and Begala haven't left public political life, then one has to wonder what the fuss is about. If the audience expected he was that kind of guy all along, then what's left to disclaim?