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Dream Palace of the Goo-Goos

What do the campaign-finance reformers really want?

11:00 PM, Mar 13, 2005 • By SCOTT W. JOHNSON
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THE CAMPAIGN-FINANCE SCANDALS of Bill Clinton's 1996 reelection left a bitter aftertaste. Having secured his reelection, Clinton resorted to the favorite stratagem of presidents in need of political cover--the appointment of a bipartisan commission. The bipartisan commission was to study the reform of campaign finance law. To conservatives, the appointment of a bipartisan commission was a non sequitur. The 1996 scandals were scandals because they involved violations of existing law. Nevertheless, talking about the need for campaign-finance reform helped President Clinton to change the subject. On March 17, 1997, Clinton announced the appointment of former Vice President Walter Mondale to co-chair (with Nancy Kassebaum-Baker) an independent commission to promote campaign finance reform.

Mondale's experience analyzing campaign-finance law extended back to his student days at the University of Minnesota Law School, where he wrote an astute law review note criticizing Minnesota's campaign-finance law and advocating deregulation. As a Minnesota senator, however, Mondale had supported the complex system of federal campaign-finance law that essentially derived from the Federal Election Campaign Act law of 1971 (FECA) and the Watergate-era amendments of 1974. In the White House ceremony announcing the appointment of the new Clinton commission, Mondale referred to the "nightmare of the present campaign-finance system." No one noted that the "reforms" Mondale himself had supported as a senator had become the "nightmare" he described in 1997.

The problems identified by Clinton's bipartisan commission ultimately contributed to the adoption of the Bipartisan Campaign Reform Act of 2002 (the McCain-Feingold law). Mondale expressed his support in an op-ed for the Minneapolis Star Tribune. Congress itself emphasized the increased importance of unregulated "soft money," the proliferation of "issue ads" by nonparty groups, and the findings of a 1998 Senate report on the 1996 election as the impetus for adopting McCain-Feingold.

LAST FALL, U.S. District Judge Colleen Kollar-Kotelly overturned the Federal Election Commission's exclusion of the Internet from many of the regulations written to implement McCain-Feingold. The commission's Democratic commissioners voted against taking an appeal, preventing the main body of the commission from seeking a review of Judge Kollar-Kottelly's decision. In an interview earlier this month, Federal Election Commissioner Bradley Smith ignited a digital firestorm by warning that political blogs may be subject to regulations to be promulgated by the FEC as a result of this new ruling.

COMMISSIONER SMITH has rightly identified a significant issue. Although Congress has magnanimously included a "press exemption" to some of the activity that would otherwise trigger complicated regulatory requirements under federal election law, it is not clear in this context whether the "press exemption" includes blogs or Internet news services. See, for example, Federal Election Commission Advisory Opinion Number 2003-34 discussing the press exemption, and "Should the FEC regulate political blogging?" by Richard Hasen, a professor specializing in election law.

Even if the McCain-Feingold law and the "press exemption" are unclear on the extent of their application, wouldn't the First Amendment protect freedom of speech on the Internet? The Supreme Court's modern First Amendment jurisprudence has afforded Constitutional protection to such vital speech as nude dancing, flag burning, simulated online child pornography, and sexually explicit cable programming. Surely the First Amendment protects the rights of bloggers to express themselves on the Internet as they see fit in connection with elections to federal office?