Don't listen to the ones saying the proposed regulation of internet activities isn't a big deal, or that this is only about Republicans that want to dismantle CFR. They are wrong. For example, ActBlue [ed.-they are a PAC, but the more general point stands], as a company that is a bundler of coordinated contributions, would be finished, out of business, if coordination over the internet becomes regulated in accordance with the existing laws regarding expenditures. This is a huge matter that demands all of the blogosphere and netroots getting involved to create our own solution.
Today I got around to re-reading the Kollar-Kotelly ruling from 2004 that the FEC now has on its plate. Here's the PDF ruling. Shays-Meehan (the House equivalent of McCain-Fiengold) basically argued that, even though the internet was explicitly excluded from the group of 8 public communication mediums adressed, because it wasn't specifically excluded from the tagged on language, it should now be included in the regulation-- a classic end-around of the legislative body through the judicial body.
Congress deliberately excluded the internet from the communications listed (broadcast, cable, satellite, newspaper, magazine, outdoor, mailing, telephone) because the bill would have failed if the internet were included.
But included within the definition of "public communication" is the phrase "any other form of general political advertising", and that's the loophole through which Shays-Meehan argued for internet regulation. BCRA "contains no per se exclusion from the definition" of a "public communication", therefore, "any other" applies to the internet.
From there, the ruling leapt to:
...Congress intended all other forms of "general public political advertising" to be covered by the term "public communication". What constitutes "general public political advertising" in the world of the internet is a matter for the FEC to determine.The other area the ruling impacts is that of coordinated communications regulations. The FEC had excluded internet communications from the any regulation of coordinated communications. The ruling says this "violates" and "undermines" the law, and that "if a candidate or political party coordinates an expenditure with an outside person or entity, that expenditure is presumed to be aimed at assisting... [and] to allow such expenditures to be made unregulated would permit rampant circomvention of the campaign fianance laws and foster corruption or the appearance of corruption." An "expenditure" includes "anything of value made by any person for the purpose of influencing..."
Those two issues that the FEC now has to deliniate upon, advertising and expenditures, are where the questions need to be asked. People say, "well, we need to make sure Karl Rove can't coordinate with the Swift Boats again," but coordination means nothing without a medium of expression. That expression is through advertising and expenditures, and no matter what law comes out of that, blogs are going to fall under it's sway (we Democratic partisan blogs coordinated "value" with candidates and the Party extensively). We need to come up with examples and circumstances that show just how convoluted and confusing the idea of including the internet within regulation of coordination becomes once is moves into the expression of advertising and expenditures of value (I just looked over my last 10 frontpage posts, and found that I'd "coordinated" communications of value on 4 of them). As for advertising, regulation of "paid advertising" isn't the problem, but once the regulation becomes "general public political advertising" that can arguably include in-kind contributions like graphics, statements, even links say "go contribute".
Moving along to spelling out the solution, note that the basic underpinning the ruling used is the 1984 Chevron case, where having "clear congressional intent" decides the matter for the court, but if the court finds the law "silent" or "ambiguous" on the matter, then the court gets to decide on the validity of the FEC's interpretation. And that's the case here.
So, we will need to push for bipartisan amendments in Congress that specifically spell out what CFR applies to the internet and internet communications. Battling the FEC and the courts seems the short-term effort, but if we want to kill this judicial end-around, it's more effective to just get Congress to clarify the internet.
Regardless of what the FEC does, bloggers and the netroots should get bipartisan sponsors for a bill in the House and the Senate that specifically exempts internet communications and internet advertising from BCRA, or any form of campaign finance regulation, and then publically lobby for its passage during this term.
The Republican partisan bloggers have rightly blamed the 3 Democrats on the FEC for this matter not being appealed. But for the swift passage of Internet Exemption into law, it's going to be up to Republicans to marshall forward the bill. Democratic partisan bloggers will find the bipartisan cover easily enough, and bully any resistance along the way.