Excesses in McCain-Feingold

The 2004 presidential campaign gave the lie to the Bipartisan Campaign Reform Act of 2002 — otherwise known as McCain-Feingold, whose intent is to keep “big money” out of politics. Billionaire George Soros is probably still chuckling about that. Now, Federal Election Commission commissioner Bradley Smith warns that legally it could be used to stifle free speech on the Internet.

Here’s how: The law regulates political advertising coordinated with political campaigns that appears on “any broadcast, cable or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing or telephone bank to the general public, or any other form of general public political advertising.” In 2002, the FEC decided (4-2) that the law, as expansive as it was, did not apply to the Internet.

But last September U.S. District Judge Colleen Kollar-Kotelly overturned the decision, arguing that the “commission’s exclusion of Internet communications from the coordinated communications regulation severely undermines” the law’s purpose. Interpreting this, Mr. Smith told CNET News that “any coordinated activity over the Internet would need to be regulated, as a minimum.” This includes, but is not limited to, blogs and other sources of political news and opinion that might link to a candidate’s Web page. This leaves bloggers and online news sources in a state of regulatory limbo. “Would a link to a candidate’s page be a problem?” Mr. Smith asks. “If someone sets up a home page and links to their favorite politician, is that a contribution?”

Good questions. Many blogs link to a particular candidate’s Web page not for contribution reasons, but to cite a candidate’s comments or positions. For instance, the primary purpose of National Review Online’s the Kerry Spot was to track John Kerry’s presidential campaign, and the site linked to the campaign’s Web site hundreds of times. By the standards of McCain-Feingold, as interpreted by Judge Kollar-Kotelly, the Kerry Spot was contributing to Mr. Kerry’s campaign. So far, the law has not been used this way, though both Sens. John McCain and Russ Feingold believe it should. Judge Kollar-Kotelly’s decision also may be right. Considering the ever-increasing influence the Internet is having on politics, it’s not a stretch to imagine a day when a battered politician finally forces the FEC’s hand. It’s up to Congress to check the law’s excesses and reaffirm its commitment to the First Amendment.