The same sloppy legislative writing that created so many unintended consequences in ObamaCare also plagues the DISCLOSE Act, the effort in Congress to tighten spending rules in the wake of the Citizens United decision — and that’s the generous take on the situation. Reason’s Bradley Smith and Jeff Patch warn that the perhaps-unintended consequences of legislative language will allow the FEC to regulate political speech online. The fact that media entities like the New York Times have specific exemptions built into the bill makes the intent, or lack thereof, rather murky:
Last week, a congressional hearing exposed an effort to give another agency—the Federal Election Commission—unprecedented power to regulate political speech online. At a House Administration Committee hearing last Tuesday, Patton Boggs attorney William McGinley explained that the sloppy statutory language in the “DISCLOSE Act” would extend the FEC’s control over broadcast communications to all “covered communications,” including the blogosphere.
The DISCLOSE Act’s purpose, according to Democratic Congressional Campaign Committee chair Chris Van Hollen and other “reformers,” is simply to require disclosure of corporate and union political speech after the Supreme Court’s January decision in Citizens United v. Federal Election Commission held that the government could not ban political expenditures by companies, nonprofit groups, and labor unions.
The bill, however, would radically redefine how the FEC regulates political commentary. A section of the DISCLOSE Act would exempt traditional media outlets from coordination regulations, but the exemption does not include bloggers, only “a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication…”
In Citizens United, the Supreme Court explicitly rejected disparate treatment of media corporations and other corporations (including nonprofit groups) in campaign finance law. “Differential treatment of media corporations and other corporations cannot be squared with the First Amendment,” Supreme Court Justice Anthony Kennedy wrote for the majority.
No legitimate justification exists for excluding media corporations from regulations on political speech applicable to other corporations, unless the goal is to gain the support of editorial boards funded by the New York Times Co.
The response to this criticism has been both predictable and instructive. Instead of actually discussing how Reason got the argument wrong in its initial reporting on the subject, a Public Citizen lobbyist (which supports the legislation) called it a death-panel argument. Another group attempted to defend Congress by assuring us that the FEC would “most likely … stand by the 2006 Internet rules” and not investigate political bloggers.
Most likely? Color me comforted. If the Democrats in Congress wanted to ensure that the FEC would not investigate political speech by bloggers, they would have written their exemptions to include bloggers instead of just traditional media outlets. The purposeful lack of exemption for bloggers looks ominous indeed — and could be used to harass smaller, unfunded bloggers out of the realm of political debate.
Even if bloggers were included in the exemption, why should the law discriminate between two similar corporations producing similar intellectual property simply on the basis of product when it comes to free speech? As Reason points out, the Supreme Court stated that such discrimination violates the First Amendment, and probably the 14th as well. What about NBC, owned (at the moment) by GE, which produces a myriad of products and services unrelated to speech. Should their media subsidiaries get that exemption, and if so, why? Surely NBC has a much more obvious incentive to bolster GE and avoid reporting on its problems, and the politics that impact them, than a blog has in backing a candidate or a bill in Congress.
This isn’t about “good government” or clean elections. It’s an attempt by Congress to step around the First Amendment and regulate political speech that threatens incumbents, just as McCain-Feingold attempted.