In 2002, the FEC decided that the law should not apply to Internet communication, but a U.S. District overturned that decision last fall. Smith and two fellow Republican commissioners wanted to appeal, but because the commission's three Democrats refused to join, what Smith calls a "bizarre" regulatory process is not taking place.
Technically, McCain-Feingold applies to political partisanism and the way grassroots internet activity amounts to virtual campaign contributions. But critics say the law could be extended to cover many forms of politically-related comments or opinions on the internet, since generally all such expressions are by definition partisan. Does McCain-Feingold herald the beginning of government-mandated internet censorship?
McCullagh: What happens next?Link to News.com story (Thanks, Allan)
Smith: It's going to be a battle, and if nobody in Congress is willing to stand up and say, "Keep your hands off of this, and we'll change the statute to make it clear," then I think grassroots Internet activity is in danger. The impact would affect e-mail lists, especially if there's any sense that they're done in coordination with the campaign. If I forward something from the campaign to my personal list of several hundred people, which is a great grassroots activity, that's what we're talking about having to look at. Senators McCain and Feingold have argued that we have to regulate the Internet, that we have to regulate e-mail. They sued us in court over this and they won.
McCullagh: If Congress doesn't change the law, what kind of activities will the FEC have to target?
Smith: We're talking about any decision by an individual to put a link (to a political candidate) on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet.
Smith: Again, blogging could also get us into issues about online journals and non-online journals. Why should CNET get an exemption but not an informal blog? Why should Salon or Slate get an exemption? Should Nytimes.com and Opinionjournal.com get an exemption but not online sites, just because the newspapers have a print edition as well?
Update: Greg Klass says,
You might want to alert your readers who aren't famiar with Bradley Smith that he is an arch foe of campaign finance regulation, whom the Republicans managed to put on the Federal Election Commission. Link to background. I would take any scary predictions he spreads about consquences of recent major changes to the campaign finance law (a.k.a. McCain-Feingold) with more than a few grains of salt.