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Blog rolling? D.C.'s new spin on Net rules

CNET's Declan McCullagh tells why government regulations for blogs put campaign reformers on the spot.

After a public outcry over government regulation of bloggers, some of Congress' most ardent campaign finance reformers have found themselves in a politically uncomfortable position.

Three years ago, Sens. John McCain, R-Ariz., and Russell Feingold, D-Wis., persuaded their colleagues to approve a campaign finance law with no exemptions for the Internet. But because that law now requires federal regulators to take a look at bloggers, McCain and Feingold are suddenly ducking for cover.

So, for that matter, are Reps. Christopher Shays, R-Conn., and Martin Meehan, D-Mass., the sponsors of the Bipartisan Campaign Reform Act in the House of Representatives.

Consider some recent history. When Congress was debating campaign finance rules at the turn of the millennium, those four politicians led the charge to regulate political Web sites as part of the sweeping changes to federal election laws that President Bush later signed in 2002.

For now, the congressional quartet seems to be arguing that they never intended to order a blogospheric crackdown.

At one point, Rep. Tom DeLay, R-Texas, offered an amendment saying that "none of the limitations, prohibitions or reporting requirements of this act shall apply to any activity carried out through the use of the Internet."

Led by Shays and Meehan, though, the House rejected DeLay's amendment by a 160-268 vote. Only five Democrats voted for it.

With the help of Democratic leaders then in power, McCain and Feingold bottled up a similar Republican-backed bill in a Senate committee. The legislation never saw the light of day.

When the Federal Election Commission was trying to figure out how to write regulations based on the McCain-Feingold law in mid-2002, its four sponsors once again urged a strict approach. In a letter to the FEC, McCain, Feingold, Shays and Meehan said they disagreed "with a blanket exemption for 'communications over the Internet.'"

Eventually, though, the FEC ruled otherwise. "The Internet is included in the list of exceptions (because) in most instances, it is not a broadcast, cable or satellite communication," the FEC concluded in a 4-2 vote, with one Democrat joining the three Republicans.

By now, you should be able to guess what happened next: Shays and Meehan sued the FEC. (Because Senate rules wouldn't let them participate directly, McCain and Feingold joined the effort by filing an amicus brief.)

Not regulating "Internet activities opens a major new loophole," Shays and Meehan said in court documents. It "will open new and powerful avenues for circumventing the governing contribution limitations, source restrictions and reporting requirements."

They won. U.S. District Judge Colleen Kollar-Kotelly sided with McCain, Feingold, Shays and Meehan last year and ordered the FEC to redo its regulations.

FEC in the hot seat
Normally that process might have been buried under dense layers of bureaucratic strata and gone unnoticed until it was already under way, but FEC Commissioner Bradley Smith blew the whistle in an interview with CNET in early March. After Smith's warning, an army of bloggers mobilized to oppose intrusive regulations, and some members of Congress--including prominent Democrats--warned the commission not to be overly aggressive.

As a result, McCain, Feingold, Shays and Meehan have been left in an awkward position: As true believers in restricting certain types of politicking, they want to see the Internet covered by a weighty regulatory blanket. But as savvy politicians perhaps aspiring to a higher office someday, they don't want to take the credit for a crackdown on bloggers.

"A lot of people who (have recently) said, 'We don't want to regulate the Internet' weren't saying that before," FEC Commissioner David Mason quipped last week.

For now, the congressional quartet seems to be arguing that they never intended to order a blogospheric crackdown. They argue, for instance, that "there is simply no reason--none--to think that the FEC should or intends to regulate blogs."

But a March 10 draft of the FEC regulations CNET reported on last week would have done just that.

It's too early to know what the FEC will do. The regulatory process has just lurched to a start, and a final rule is not expected until the end of the year. We do know that thanks to the outcry from thousands of bloggers, the draft regulations released on March 23 are not nearly as onerous as the March 10 draft would have been.

The real danger is that if the FEC doesn't go as far as McCain, Feingold, Shays and Meehan would like, the agency will find itself back in court--and the entire process will begin again.