Last week I noted how surprisingly sensible some liberals like Atrios are sounding on the danger and stupidity of Federal Election Commission proposals to regulate blogging, taking issue with others like Rick Hasen at Election Law who favor disclosure regulations. (Meanwhile, Canada has provided a shocking example of how quickly good intentions can run amok.) Atrios writes:
What amazes me about all of this talk about the FEC and bloggers is that seemingly sensible people think it's important to place disclosure requirements on bloggers which apply to no one else in the universe.
My post drew a comment from
Jeremy Thompson over at Loyal Opposition inviting a reply:
"I'd like to hear what you think, as I am working up a my own response for the F.E.C. public comment period. I'd appreciate a conservative viewpoint."Well, if I'm the best liberals can do for a conservative viewpoint, they're in more trouble than I thought. ;) But in case anyone's interested, here goes:
"Congress shall make no law... abridging the freedom of speech, or of the press..."The debate should not be about extending McCain-Feingold to blogs. It should be about whether 'campaign' finance 'reform' (CFR) was a valid idea in the first place, and whether it will stand up to Constitutional challenge. (Side note: liberals should not be deceived by the fact that "Republican" Senator John McCain sponsored this legislation. He stands as firmly for conservative principles as Zell Miller stands for liberal ones.)
There is simply no language in the First Amendment that justifies exceptions in order to achieve some hazy notion of a fair result. "Make no law" means... "make no law". "Speech or... the press", means... "speech or... the press". The founders (not to mention Justice Louis Brandeis) recognized that more speech was the best, if not perfect remedy for 'objectionable' speech - whatever that means. The idea that 'corporate interests' somehow change the equation is misguided. Business interests - and the concentrated wealth that goes with them - are nothing new. Had the founders thought them worthy of special restrictions on free speech, they would have said so.
Those in favor of CFR seem to believe, by contrast, that the world is fundamentally different today, and that there is a perfect remedy out there, if only smart and well-meaning policy-makers would work harder to come up with it. There isn't. They should stop looking. And even if there were in theory, it would be so utterly burdensome, complex, and rigid as to create a panoply of perverse and unforeseen consequences far worse than whatever they set out to 'cure'. The current flap over blogging is just the most obvious example of that. There will be others.
Opening the door to government involvement in regulating speech
in any way whatsoever is extremely risky. The founders knew this because they recognized that the nature of man is unchanging - in both positive and negative senses. Negative in that public debate will
always involve yelling and screaming and lying and cheating and otherwise scrabbling for advantage. Positive in that: 1) people are not stupid, and 2) injustices are temporary unless locked in by government fiat. Human nature may not be changing, but human innovation offers a font of endless change. Because of it, the means to correct any injustices will arise in unexpected forms and unexpected places - including those that elites thought so disenfranchised as to be incapable of standing up for themselves and their points of view. (At last count, there were
over eight million blogs out there. Tell me that isn't democratic and empowering.)
In the first category,
reputation is the main corrective. An uncorroborated anonymous source is less credible than a corroborated one or a pseudonymous one with an established reputation. A pseudonymous source (e.g., this blog, or an unsigned editorial) is less credible than one bearing a real-world identity. And real-world identities (individual or corporate) are worth more when they are better known. Readers know this and make judgments accordingly. The writer (paid or not) selects a point along this continuum and lives with the consequences in terms of credibility, readership and influence. The Martinez-Schiavo is merely the most recent example that proves this out. Bloggers and other media with reputations for sanity and fairness developed through toil and over time run a massive risk
to themselves and their brand by taking money and not disclosing it.
But it is their risk to take.Anyone who smells an unsavory agenda is free to call it out by starting their own blog, investigating the money trails, and bringing down a blogging (or MSM) giant. Many have already - on both ends of the political spectrum. That alone should be proof that government involvement isn't necessary. Those bloggers and media outlets unwilling to run such catastrophic risk will voluntarily disclose their means of support. (For the record, I derive no compensation of any kind from any person or entity even remotely related to the subjects covered by blog... though any offers would be graciously considered!)
In the second category,
blogging itself is the wonder solution of the moment to the 'problem' of concentrated corporate control of media that the left has long railed against. It's just that the effect - on balance - has not been what they'd hoped for. I suspect that the main reason some liberals are now calling for an extension of CFR legislation to blogs is because they don't like the shape of recent 'victories' over corporate media. I.e., sympathetic voices like Dan Rather were brought down hard by wide-open speech, while new conservative voices have surged forward.
That said, it is
sometimes worth it as a society to incur the huge risk of government involvement in speech. Two centuries of legal precedent have established strong if not universal consensus on the need to incur that risk where general public safety and the basic pillars of civic order are at stake, e.g., pharmaceuticals, financial securities, threat or incitement to commit violence, outright theft of someone else's intellectual property, etc. Even in those cases however, it's worth noting that the exceptions are hardly universal: medical foods, fair use, etc.
But even more fundamentally,
the very idea of campaign finance reform seems to rest on an arrogant notion that ordinary people need to be protected from their own lack of discernment by a more thoughtful, benevolent elite. The sting of the last election seems to have led some on the left to conclude that because the result was 'wrong' in their view (i.e., against 'common sense', principles of 'social justice', what everyone they knew was saying, what the MSM had supposed, or what biased exit polls had surmised), that it was somehow undemocratic. It was not. Get over it. Democracy is inherently messy. As Churchill noted, the 'neater', more centralized, 'rational' alternatives have been tried and found wanting (see Stalin, Hitler, Mussolini, Kim Jong-il, Fidel Castro, etc.).
It is elitist condescension that lost the last election for John Kerry. It is elitist condescension - and not any lack of wisdom on the part of the American people - that makes the liberal position on CFR utterly untenable. Never mind blogs. McCain-Feingold
itself should be relegated to the ash heap of history - alongside other attempts at 'pruning' the First Amendment.
UPDATE I: Hammering home the point is sore loser
John Kerry himself...
UPDATE II: ...and a
former aide to Democrat Joe Lieberman.