By Brian Faler
Special to The Washington Post
Tuesday, May 3, 2005
You could almost hear the blogosphere sigh with relief earlier this spring when federal election officials indicated that they did not plan to crack down on bloggers who write about politics.
The Federal Election Commission, which has been considering issuing new regulations on a range of political activities on the Internet -- and was said by some to be contemplating taking a tough stance on the online commentators -- revealed in late March that it intends to be much less aggressive than many had feared. But now some observers are wondering whether the FEC is not being aggressive enough when it comes to one category of bloggers: those who take money from political campaigns.
The FEC requires candidates to disclose their expenditures, including any payments to bloggers, in periodic reports to the government. Some bloggers also disclose their financial relationships with candidates, but they are not obliged to reveal those payments, and the agency recently said it is not proposing requiring them to do so.
Some election law experts want the FEC to reverse that policy, saying it gives campaigns the opportunity to use ostensibly independent blogs as fronts to create the illusion of grass-roots support, mount attacks on their opponents and disseminate information to which candidates do not want their names attached.
"The concern is that somebody is blogging at the behest of a campaign and nobody knows it," said Richard L. Hasen, a professor at Loyola Law School in Los Angeles who maintains a blog on election law.
"If, for example, you are a U.S. Senate candidate and you have a blogger who you're paying to write good things about you and bad things about your opponent, it will eventually come out. But that may not come out until after the election," Hasen said.
"But even if it comes out, there's something to be said for having the information right there, so when you click on the Web site you see it says 'Authorized by Smith for Congress,' " he added. "Voters rely on those pieces of information as cues in terms of how much stock they should put in what someone is saying."
Others pushing for the disclaimers note the FEC said it is leaning toward requiring them on certain types of political advertising on the Internet. They say paid bloggers' sites can be tantamount to ads and ought to be subject to the same disclosure rules.
The agency is tackling that and a number of other often arcane legal questions after a federal court ordered it to rewrite election rules that had left online political activities virtually free from government regulation. The six-member commission revealed its regulatory agenda March 23 in a "notice of proposed rulemaking."
That document indicated that the panel is disinclined to impose many new rules on bloggers and others who use the Internet to engage in political activities. The agency, which is accepting public comments on the issue until June 3, is not expected to decide the final regulations until later this year. Scott Thomas, the FEC's Democratic chairman, said it has yet to hear from the authors of the 2002 campaign finance reform legislation or any of the prominent watchdog groups on the disclaimer issue.
"We really haven't gotten any of the usual suspects to submit a comment yet," Thomas said.
Congress could short-circuit the FEC process, though, if it passes a measure approved last week by the Senate Rules Committee. That bill would bar the FEC from regulating political activities online. Thomas declined to comment on the legislation.
The FEC is taking up the disclaimer issue after news reports last year indicated that a handful of campaigns from both parties had put bloggers on their payrolls. The most contentious example came in South Dakota, where GOP senatorial candidate John Thune paid $35,000 to two local bloggers who ran sites critical of the state's largest newspaper's coverage of Thune's Democratic opponent, incumbent Thomas A. Daschle.
Neither the Thune campaign nor the bloggers revealed the relationship until it was disclosed in his finance reports. Both the campaign and the bloggers -- one a history professor, the other a lawyer -- denied they were paid to write, saying they were hired as consultants. The Daschle camp said the two were paid to smear the lawmaker.
Those who want additional disclosure requirements said they fear that scenario will become increasingly common as politicians become more sophisticated in using the Internet, as blogs attract larger audiences and as more mainstream news outlets report on -- and amplify -- what the blogosphere is saying.
But their complaints are meeting skepticism from those who say additional reporting requirements are not only unnecessary but would be legally suspect and difficult to enforce.
Some said, for example, that campaigns routinely take a magnifying glass to their opponents' finance reports -- and can be relied upon to publicize any unannounced payments to bloggers. And some said such requirements would impose obligations on bloggers that are not expected of anyone else who takes money from campaigns and then sounds off on them in other media, such as letters to newspapers or calls to radio shows.
Trevor Potter, a former FEC commissioner, said as a practical matter it would often be difficult to distinguish between those who have been hired to blog and those who have been hired for some other reason -- to help run a campaign's Internet operations, for example -- and, as is increasingly the case these days, also happen to have a blog.
"The problem is that it's not going to be clear when a blogger is speaking in his or her capacity as a paid employee or consultant to a campaign and when they happen to be an employee or consultant and are blogging on their own," he said.
Some political bloggers say disclaimers are unnecessary because most of them make no attempt to hide their support or opposition to individual candidates. Relatively few, some say, would risk their credibility and readership by accepting undisclosed payments -- and that those who do would be quickly outted by other bloggers.
"I think a lot of these things are reasonable as a matter of ethics," said Duncan Black, who runs a popular liberal blog called Eschaton under the pen name Atrios. "But that's different from being reasonable as a matter of law."