Voting for Cloture

Let the truth be known.

Biden-DE; Byrd-WV; Carper-DE; Conrad-ND; Johnson-SD; Kohl-WI; Landrieu-LA; Lieberman-CT; Lincoln-AR; Nelson-FL; Nelson-NE; Pryor-AR; Salazr-CO; Stabenow-MI

"Moderate" Republicans
Allen-VA; Chafee-RI; Collins-ME; Hagel-NE; McCain-AZ; Snowe-ME; Specter-PA; Voinovich-OH

Remember these names.

Wal-Mart Does Not Have Lower Prices on 98-99% of What They Sell

Don't believe the pipe:How does the number-one retailer maintain an image of low prices? First, by actually making sure its prices are lower than its competitors, at least on key items. These items are called "price-sensitive" items in the industry, and it is commonly believed that the average consumer knows the "going price" of fewer than 100 items. These tend to be commodities that are purchased frequently.

A mid-size Wal-Mart supercenter may offer for sale 100,000 separate items, or stock-keeping units (skus). Wal-Mart and other major retailers believe that the general public knows the going price of only 1 to 2 percent of these items. Therefore, each Wal-Mart store shops for the prices of only about 1,500 items in their competitors' stores. If it is ever found that a competitor has a lower price on one of these items than Wal-Mart, the store manager will immediately lower his or her price to be the lowest in the area.

Price-sensitive merchandise is displayed in prominent places such as the kiosk at the entrance to the store, as well as on end caps, in dump bins, and in gondolas down the main aisles. Consequently, when Wal-Mart customers see the items of which they know the price, the ones always priced lower in Wal-Mart, they start assuming that everything else is also priced lower than at competing stores. This assumption is simply not true.

My barber has offered me a simple example. He sells a nonbreakable pocket comb for 25 cents that he procures from his vendor for eight cents. Wal-Mart sells a lower-quality comb for 98 cents, and one would assume that Wal-Mart pays less for it than the barber does. People keep buying Wal-Mart combs, however, because the average person does not know the going price of a pocket comb, and it is automatically assumed that the Wal-Mart price is the lowest.

Wal-Mart has played the consumer for a fool. We all suffer as a result.

Unholy alliance

Those of you with a sense of irony will appreciate this, other may feel a bit of the comedic; but for the rest, brace for the tragic. A couple of days ago, I called out for a Internet Exemption (of CFR) law passed by Congress. Turns out, I already have an ally.

Hit it maestro:


      Insert after title XV the following new title (and redesignate the succeeding provisions and conform the table of contents accordingly):



      Title III of the Federal Election Campaign Act of 1971 (2 U.S.C. 431 et seq.), as amended by sections 101, 401, 507, 510, 515, 1001, and 1101, is further amended by adding at the end the following new section:


      `SEC. 330. (a) IN GENERAL- Except as provided in subsection (b), none of the limitations, prohibitions, or reporting requirements of this Act shall apply to any activity carried out through the use of the Internet or to any information disseminated through the Internet.

      `(b) EXCEPTION- Subsection (a) shall not apply to the solicitation or receipt of contributions.

      `(c) INTERNET DEFINED- The term `Internet' means the international computer network of both Federal and non-Federal interoperable packet-switched data networks.'.

This IE amendment by DeLay failed 160-268, but that was largely due to it's being offered up as one of many 'poison pill' amendments (think (b) in practice) designed to defeat the Shays-Meheen CFR bill. I think getting 55 votes to flip on this is doable, especially if the bill contained only (a) & (c) language, as it's (b) that's problematic.

So, here we are, all we need now is for a Republican and Democrat in the House, and in the Senate, to introduce an bill -without (b)- like the above, and we'll lobby for it's passage. And I don't really care who it is either as this isn't bipartisan-- it's non-partisan. So if repub bloggers can get a Senator, and DeLay is still game, whatever, that'll work... we just need to find a couple of Democrats that want to be the leader of the free world on the internet.

Unlike DeLay's proposed exemption, this isn't about totally unregulating the internet, as contributions raised through the internet will continue to be regulated, as will expenditures for internet-based activities by candidates. Both of those are already ongoing, and enforced by the FEC on campaigns and candidates in their reporting. Anything further is a burden to liberty.

We need a bipartisan CFR Internet Exemption law spurred on by the blogosphere

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.


The first round of CFR was a resounding success. It got soft money donations out of the party, making the party rely upon small donors again, which was a catalyst for bringing reform into the Democratic Party. Anyone who thinks that CFR wasn't a success for the Democratic Party?  But it also was a success for creating active political vehicles outside the party that could engage in overt political behavior, such as the 527 groups formed by MoveOn, ACT, and others.

Now, McCain-Feingold are back for another round, and this week in RollCall, the result of their "reform" is summed up pretty well:

McCain-Feingold II, like its predecessor, does not actually ban soft money. Fashionably, it targets only the reformers' latest boogeyman: the 527s. At the same time, it ignores the role of tax-exempt 501(c) groups.

The 501(c)s are largely off limits because of the raw political power of the special interests that operate them, which represent key constituencies for both parties. Predictably, McCain-Feingold II will, if enacted, send soft money cascading away from 527s to the new vehicles of choice, 501(c)s. Political activity conducted through 501(c)s is less tax-efficient than it is through 527s, but that just means interest groups will have to raise more soft money.

This is not to say that the 501(c)s should see their ability to engage in political advocacy undermined, by law, any more so than undermining the political parties or the 527s is good policy for a free society. Rather, by focusing only on 527s, McCain-Feingold II repeats the past sham of banning one soft-money vehicle while ignoring others. A selective ban simply picks new winners and losers in the political process.

This is not an "unintended consequence" of campaign finance regulation. Congress knew what it was doing when it left outside groups free to raise and spend soft money. Sens. McCain and Feingold presumably know what they are doing when they now propose legislation that merely erects a new traffic sign, telling donors to steer away from 527s and toward the now-privileged 501(c)s.

If the proposal is enacted, look for the next federal election to look much like the last one. Soft money will still be there; the only change will be a starring role for 501(c)s. Soft money will be forced even further underground.

The 501's are institutional in DC, so they are not threatened, while the 527's which basically served as the Democratic Party's field organization in many states during 2004, are very threatened by the Republicans. Politically, the 501's are suppossed to be more covert in terms of elections, but I'm sure that the money seeking partisan involvement will find its way through to play anyway, so I don't see why the Democrats are going along with the changes.


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