(FEC) Agent Smith

Yesterday, I tried some prognostication about an opinion the Supreme Court will release in the fall. Two days ago, Henry Farrell predicted that the FEC, though it had been trying to avoid it, would soon move into fairly extensive regulation of internet political activity, including blogs which support or oppose various candidates. Now, via Farrell, via Steven Bainbridge, Brad Smith, the FEC Chairman, is saying that a recent court case may force him to regulate internet communication.

As examples of internet poltical activity, Smith specifically mentions,
"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." And, in response to the question:
If Congress doesn't change the law, what kind of activities will the FEC have to target?
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.

Campaign finance reform is a very difficult issue. On their face, acts like McCain-Feingold do violate free specch protections. This is extremly obvious in the applications mentioned above, but even the core of the bill, prohibiting soft money donations, really does interfere with peoples ability to engage in political advocacy as vehmently and stenuously as they would like to. But, as campaign finance reforms advocates have argued, there is also a sense in which the lack of campaign finance reform prevents speech. In their current form, free speech rights interfere with genuine democratic deliberation, as, for instance, Cass Sunstein argued in Democracy and the Problem of Free Speech. They do this by privliging the speech of the rich. Anyway, I have no idea how to solve this, just wanted to lay out the problem in a way that wasn't just stumping for one side.

Ian Ayres has posted interesting ways to solve it in the past, in particular a law that would create optional anonymous refunds for all political donations. People could give as much as they want, and announce their donation, but candidates would have no way of knowing whether or not they were actually able to keep the money. I can imagine some technical problems with this (someone donates X dollars, soon after exactly X dollars are refunded, but they could probably be ironed out). It's also far from clear that this would resolve
all campaign finance problems, but it would appear to solve some of them.