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Reforming the Net campaign reformers

Political speech took a heavy blow from McCain-Feingold.'s Declan McCullagh says Congress should lighten up.

Congress finally recognizes the magnitude of the error it made three years ago by acquiescing to a sweeping campaign finance law. All I can say is that it's about time.

That 2002 law, which included the most extreme restrictions on political speech in a generation, is called the Bipartisan Campaign Reform Act. It's better known by the names of its Senate sponsors, John McCain, R-Ariz., and Russell Feingold, D-Wis.

Today it's known on the Internet as an unconstitutional restriction on free expression, thanks to federal regulations based on the law that are currently being drafted and are expected to become final in the next few months. Bloggers are alarmed, civil disobedience is being mooted, and petitions are circulating.

Our politicians may lack an appreciation for the values enshrined in the First Amendment, but they're hardly naive. Now that they've realized that a public backlash is brewing from bloggers and online activists from both major parties, members of Congress who once embraced strict Internet restrictions are backpedaling. (Possible regulations could include mandatory disclosures of affiliations with campaigns, restrictions on linking, or rules against republishing campaign material.)

Our politicians may lack an appreciation for the values enshrined in the First Amendment, but they're hardly naive.

At a hearing last Thursday, Reps. Zoe Lofgren, a California Democrat who voted for the law back in 2002, belatedly acknowledged that some legislative tinkering was in order.

"I'm not persuaded that the federal government should regulate the Internet," Lofgren said. She added that a new bill to immunize the Internet now enjoys broad support.

It's about time
It's good that our politicians have realized their error. So what took them so long?

They had plenty of chances to protect the Internet from the most onerous extrusions of campaign finance rules--way back when the McCain-Feingold bill was being debated.

At one point, Rep. Tom DeLay, R-Texas, offered an amendment--nearly identical to this year's legislative fix--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." But the House rejected DeLay's amendment by a 160-268 vote.

With the help of Democratic leaders in power at the time, McCain and Feingold bottled up a similar bill in a Senate committee. That save-the-Internet legislation never had a chance.

The current debate makes some of the original hands-off-the-Internet politicians--led by notables such as the estimable Rep. Ron Paul, R-Texas--look surprisingly prescient. Rep. Bob Ney, R-Ohio, voted for DeLay's laissez-faire amendment years ago and has, to his credit, stuck to his guns since.

"The debate here is not between Democrats and Republicans but between those who favor regulating and those who don't," Ney said at last week's hearing. "I'm supportive along the lines of not regulating."

The debate over the McCain-Feingold law doesn't entirely divide along party lines; a Republican president signed it, and the American Civil Liberties Union joined the unsuccessful constitutional challenge before the U.S. Supreme Court.

But it is fair to blame Democrats for letting today's situation happen. Only five House Democrats voted to fix the McCain-Feingold measure when it was being debated years ago. And then, after U.S. District Judge Colleen Kollar-Kotelly ruled last year that the McCain-Feingold law covered the Internet, the three Democratic members of the Federal Election Commission were content with that outcome. The three Republican commissioners wanted to appeal, but lacked a majority.

True, the FEC's proposed regulations probably won't be as restrictive as an earlier, internal draft would have been. But former FEC Commissioner Brad Smith--who blew the whistle in a March interview--warns of future regulatory expansionism. "I think this is a very serious development for bloggers, and I use that term loosely to cover people who operate Web forums and Web sites," Smith told me on Friday.

That offers a second chance for the politicians--again, mostly Democrats--who voted for Internet restrictions years ago. Now we'll see whether they have the political courage to admit their mistake and fix McCain-Feingold.