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Saturday, March 05, 2005

Beldar to FEC: Bring It On!

The blogosphere (e.g., InstaPundit, Power Line, Michelle Malkin, Prof. Bainbridge, Red State, La Shawn Barber, Xrlq, WizBang, PoliPundit, The Democracy Project, and many, many others) is abuzz with worries that the Federal Election Commission, per a decision of a single federal district judge, might begin applying the McCain-Feingold campaign finance laws in a way that will treat blogs who discuss a politician or link to his/her website as having made an "in kind" campaign contribution, thereby subjecting bloggers to regulation, disclosure requirements, and potential civil and criminal penalties.

Thus, for example, Chris Muir's hilarious take in his cartoon strip "Day by Day." And in addition to these eloquent posts directly on the subject, my blogospheric friend Captain Ed of Captain's Quarters has added this disclaimer on an unrelated post in which he discusses Sen. John Cornyn (R-TX)'s smackdown of Sen. Robert Byrd (D-WV) (boldface by Cap'n Ed):

Please note: For FEC purposes, I must ask you not to donate to John Cornyn's campaign fund while visiting his website, nor do I endorse the Senator in any re-election bid. Unless he and his colleagues take some action to reverse McCain-Feingold, I'm afraid I'll be writing this about every politician currently in office.

Which prompted me to leave this comment regarding Cap'n Ed's post that included the disclaimer:

Cap'n Ed, if the disclaimer is intended to draw attention to a ridiculous decision on a ridiculous law, that's fine. I think your actual risk doesn't justify it, however, and I certainly have no intention of publishing that kind of thing on my own blog posts. If they want to make me the test case, they know where to find me. In the meantime, I'm not going to be intimidated by one loopy ruling of one federal district judge far from where I live.

To expand on that somewhat:

I'm emphatically not an expert on campaign finance laws, but I do know my way, in a general sense, around First Amendment precedent. I'm not giving legal advice to fellow bloggers or anyone else here, nor pooh-poohing their concerns. By all means, I encourage fellow bloggers and blog readers to express their concerns on this subject to the F.E.C., their legislators, and the public at large.

But speaking just as one crusty old trial lawyer who also happens to write a blog with his bemused observations and occasional rants about politics, I'm damned sure not going to change my blogging style, nor start running disclaimers every time I blog about a political issue or a politician/candidate. It's business as usual at BeldarBlog.

If the F.E.C. wants to make me their test case — and a test case somewhere outside the Beltway may be appropriate, given the F.E.C.'s decision not to appeal Judge Kollar-Kotelly's district court ruling to the D.C. Circuit — I'll gladly waive personal service and/or arrest. I'll meet 'em at the courthouse steps with my pocket copy of the Constitution in one hand and my keyboard in the other. Here's my wrists, boys — cuff me if you dare.

Maybe I'll beat Judith Miller and Matt Cooper to a jail cell. But I doubt it; and at least I'd have a genuinely principled reason for being there.

Posted by Beldar at 11:46 AM in Law (2006 & earlier), Politics (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Beldar to FEC: Bring It On! and sent a trackback ping are listed here:

» Liberal and Conservative Bloggers United from La Shawn Barber's Corner

Tracked on Mar 5, 2005 11:58:04 AM

» Right On, Beldar from Patterico's Pontifications

Tracked on Mar 5, 2005 2:48:01 PM

» McCain-Feingold Idiots from Sierra Sanity

Tracked on Mar 5, 2005 11:51:56 PM

» FEC Internet speech controversy continues from No Illusions

Tracked on Mar 7, 2005 3:26:36 AM


(1) Carol Herman made the following comment | Mar 5, 2005 12:59:36 PM | Permalink

I wrote three CARDS. Feinstein. Boxer. Who will receive theirs at their home offices in Los Angeles. And, I wrote one to McCain. It's a funny thing about politicians. They really don't read this stuff. But they count the heads. And, if they get a certain amount of mail from citizens they can take notice that they're skirting popularity drops.

By the way, I called the judge "Colleen Kaka Kolley Molly." No respect shown to that loon.

I also wrote telling the "girls" they could drop their shovels now. They've reached their goal. I no longer vote for democratic candidates.

will the democrats drop their shovels, now? Nope. Lot's at stake in the senate where they've been shoved into the minority for a long, long time to come, perhaps. And, without their twisted rules they lose their collective voices. Too bad they don't have decent candidates. That would confuse! Imagine showing Bush that there are decent democrats out there worthy of support?

While bed-sheeted Byrd Droppings rants on.

OT: Is Dr. Frist to George Bush, what General McClellan was to Lincoln? A gentlemen who didn't want to press victory against the enemy? Who'd stop, instead, to sip tea? And, order the tailor to polish up more buttons for his uniform? Rehnquist has some gold ribbon left over. Maybe, Frist needs this applied to the trousers of his pants? Just asking.

(2) Voiceguy in LA made the following comment | Mar 5, 2005 1:16:24 PM | Permalink

Can I raise my hand and ask a dumb question?

I always thought challenges to agency action were supposed to be brought in the Court of Appeals, not the U.S. District Court. Judge Kollar-Kotelly simply marches into her discussion and attack on the FEC actions without any discussion of her jurisdiction to do so.

Despite everyone's contempt for the Ninth Circuit, one of the things my judge was a bug about while I was clerking was laying out, before anything else, a sufficient statement as to why the court had jurisdiction to be acting in the case.

My quick review of the general APA provisions in Title 5 and the jurisdictional statutes in Title 28 does not show any particular basis for getting into District Court. I have not tried to wade through the provisions of FECA to see if there is some special provision there for District Court review of agency action.

Surely somebody would have raised their hand and said something if there was a jurisdictional problem, but I nonetheless find it astonishing that Judge Kollar-Kotelly didn't bother to mention this issue. Of course, I have stopped being surprised at anything Judge Kollar-Kotelly does these days. Somehow, she seems to be automatically assigned to anything involving FECA (forget random assignment), and has apparently decided that, like the District Judges who used to preside of school system busing, she is going to preside over the FEC.

As Justice Scalia said in McConnell v. FEC, in which the Supreme Court upheld the most offensive portions of BCRA:

This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming would smille with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.
(Citations omitted.)

Scalia is correct that Buckley v. Valeo was wrongly decided. It is unbelievable that the Supreme Court was willing to compound this error in the McConnell decision.

(3) Beldar made the following comment | Mar 5, 2005 1:23:59 PM | Permalink

Voiceguy, if it's a dumb question, then I'm too dumb to answer it. I'm no administrative law maven either, and like you, I simply don't know why this was in district court rather than originating in the DC Circuit, or whether it was properly there. If they cuff me, I suppose I'll have time and inclination to look into it, though.

(4) Mark L made the following comment | Mar 5, 2005 3:07:02 PM | Permalink


Your way is the *only* way to get this law reversed. It would not take too many prosecutions -- and I suspect that most would be unsuccessful -- before the public outcry caused the law to be overturned. This is the key premise in Thoreau's concept of civil disobedience.

If they do enforce this version of the law, I will join you in starting a blog, and will blog specifically to run afoul of the speech-suppression provisions of the law.

(5) Xrlq made the following comment | Mar 5, 2005 4:13:35 PM | Permalink

I'm not a maven, either, but if it ever appropriate for an appellate court other than the Supreme Court to claim original jurisdiction on any case, then I'm not only too dumb to answer Voiceguy's question, I'm too dumb to understand it.

(6) Carol Herman made the following comment | Mar 5, 2005 6:24:56 PM | Permalink

Is there a business opportunity ahead in the making? PRINT MEDIA is well covered by law. So, if the whistle blowers extended their secrets to this PRINT NEWSPAPER THAT PUBLISHES ON LINE; and by hard copy for those that would like a recap of the topics blogs have addressed with links ... Isn't that a way out of this box?

What makes a news magazine, or newspaper, like TIME, or the WSJ, impervious to suits about their sources? Because hard copies are available on newsstands?

Also, as we know from Gannon/Gerkert, Talon News was considered ligitimate enough to have this gentleman being given a White House day pass for press briefings.

Publishing is publishing. What's it worth for bloggers to have a "paper of record?" They can put the information IN that they need to retrieve and publish. Just like the stuff that came out on Apple.

Did you know Apple might not be in the computer making business up ahead? That the "mini box" they made of the MacIntosh is the information they're screaming bloody murder of having been exposed, ahead of the show where they but the "mini" out for all to see. A cheap, lightweight, unprofitable addition to their computer line.

Seems to me there's enough information in this to make it worthwhile for the public to see this kind of analysis. Doesn't it make you stop and think before you invest?

In other words 2 issues: One, about inhibiting political opinions from flowing freely on the Web. And, the other, Apple's suing two bloggers for posting a wise analysis of the company's upcoming sales moves. (Apple is suing to see the names of their insiders who provided the information prior to the release of "mini me." The scaled down Mac.

There's more than one way to solve a problem. And, the MSM is least likely to believe anyone would believe bloggers would know anything about printing presses. Hmm?

(7) Neo made the following comment | Mar 6, 2005 6:34:00 PM | Permalink

It would seem the best way to get to the "belly of the beast" with Buckley v. Valeo is to attack the exception for the MSM in McCain-Fiengold, going to the question of who is "journalist" ?

(8) Joshua Chamberlain made the following comment | Mar 7, 2005 10:35:12 AM | Permalink

Beldar, I'll tell you the same thing I told Hugh Hewitt: after SCOTUS's McConnell decision, I've stopped believing the First Amendment provides any protection from McCain-Feingold. SCOUS has essentially decided that Congress, and through them the FEC, has plenary power to regulate federal election campaigns, and if they don't want to grant blogs a media exmaption, nothing in the First Amendment can compel them to do so. Thus begins the final collapse of our republic into a tyranny.

(9) slim999 made the following comment | Mar 7, 2005 10:42:52 AM | Permalink


Here, here. In fact, I began a blog for the express purpose of having these dolts at the FEC arrest me.

Can't wait to show up at the Supreme Court with my handy pocket Constitution. I'll wipe the floor with 'em.


(10) Ken made the following comment | Mar 7, 2005 10:07:13 PM | Permalink

Good for Beldar. The whole McCain-Feingold act is a crock.

I sense the freedom of the internet will be attacked by carefully curtailing free speech.

McCain-Feingold limits political speech, universities limit hate-speech (and selectively decide what it is). A Supreme Court that can decide cases based on evolving standards can decide certain speech is too "uncivil" to be acceptable.

We also see a trend to bypass our laws and adopt foreign rulings that
support whatever verdict is desired.

In summary. Free speech depends upon what "free" means. Many want it defined as your right to not offend us.

(11) Bucky Katt made the following comment | Mar 8, 2005 12:55:09 PM | Permalink

"Maybe I'll beat Judith Miller and Matt Cooper to a jail cell. But I doubt it; and at least I'd have a genuinely principled reason for being there."

Well..there will be at least one person outside the jail with a "Free Beldar!" sign.

(12) Old Patriot made the following comment | Mar 12, 2005 2:23:01 PM | Permalink

I'm afraid the words of Thomas Jefferson, "The tree of liberty must be watered from time to time with the blood of patriots and tyrants" may end up being the only solution remaining to our current juristocracy. We still have that option - read the FULL second paragraph of the Declaration of Independence. I doubt we'll be able to muster the legal means to overcome the blatant partisan political activism through removal of activist judges by impeachment. They're not going to die off soon enough from natural causes. Their current behavior is a direct threat to the continuity of our freedom. In our history, lynching one of them would have been sufficient to curb the rest. I guess we've become too "civilized" and "law-abiding" for that solution today. It's only going to cost us more to correct the problem in the future - kinda like social security, school "socialization" and a lot of other "good ideas" from the left side of the political spectrum.

(13) Captain Ed made the following comment | Mar 17, 2005 4:52:20 PM | Permalink

You know, I just realized I'd never responded to you on this. It really was a way to be snarky and humorous about the BCRA. If I was serious, I would have retained you to write me a much better disclaimer than that!

Come to think of it, maybe I should ...

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