The recent (June 28^th and 29^th) hearings of the Federal Election Commission (FEC) on “Internet Communications” amounted, as David M. Mason, one of the Republican Commissioners remarked, to “rule making in search of a problem.” True. Would that was the only problem. The hearings were reminiscent of two metaphors. Pick one to suit – either that of the camel getting its nose under the tent or that of the Trojan Horse into Troy.

 

The partisan divide that prevails in D.C. these days was apparent at 999 E St., N.W. (address of the FEC). From the standpoint of the promotion of people’s participation in politics and the renascence of American democracy spurred by the Internet, though, it may be curious to see Republicans on the side of the angels. Republicans on the Commission were urging no or absolutely minimal regulation of political “speech” over the ‘Net. Since disclosure and disclaimers of the sources of political interests over the Internet was one of the major issues during the hearings, let us start revelation here: the author of this note, one of the 21 of over 800 who submitted written comments to the Commission who was invited to testify in person, is (drumroll) a Republican. Nevertheless, words spoken on the other (big D) side of the aisle signaled danger to even a non-partisan listener with his ears on. Democratic Commissioner Ellen Weintraub remarked, for instance: “There is no apparent distinction between a political party committee and DailyKos.com.” Not to worry? How would you, as even a garden variety contributor to political give and take over the ‘Net, like to be regulated like a political committee?

 

One of the big issues to which Commissioner Weintraub’s remark points is the definition of “political committee.” The threshold for being counted as one is about as low as the low cost of entry for setting up a political website: As little as $1,000 of transactions on the input or output side would qualify. Might DailyKos.com, with a $150,000 budget, have some reason to worry? Fortunately, Markos Moulitsas Zuniga, founder of the big blog, was there to testify and did so to great effect on Wednesday. Post-hearing? We’ll see. If the Internet community fails to continue to pay attention and drops the ball from this point forward, all bets are off.

 

Other aspects of Internet politics that the Commission proposes to regulate include (but are not limited to):

 

 Another one of the Republican Commissioners, Vice Chairman Michael Toner even undercut the rationale for the proposed rule-making in his opening remarks -- by reminding his colleagues that the Commission had appealed the Federal Court decision that had remanded certain rules back to the FEC for amendment. Perhaps most telling, he reminded fellow Commissioners of statements by Sen. John Kerry and other Congressional leaders that Congress did not intend the Internet to be regulated.

 

To some extent, it seemed like many of those testifying were talking a different language from the Commissioners. The FEC and the Internet occupy two different worlds. The FEC’s world is the old, 19-20^th century, large-scale, regulated, changing (but not too fast and so seemingly somewhat predictable), centralized, industrial world -- what Toffler called the “2^nd wave” world in his book on the Third Wave. Now, many writers make reference to a “4^th wave.” The Commission mindset, as revealed by questions and comments from most of its members and staff, looks at the ‘Web and ‘Net in terms of an old industrial command and control model. Most were looking for ways to regulate something that they can hardly wrap their minds around, let alone fully comprehend – the  dynamic, mutable, innovative, entrepreneurial, self-organizing, fractal, complex, non-linear, technologically sophisticated and unpredictable world-system of the World Wide Web.

 

The gulf in mental maps was best revealed by way the testimony of Matt Stoller (BPOnews.com) contrasted with the control-seeking thrust of FEC “questions and comments.” He noted that the ‘Web is a medium and language of places and spaces for the engagement of people as, e.g., JibJab. Right on! What a great, new, appropriate view of what a “political committee” represents! To the FEC, such a committee is simply a source and sink of money, an identifiable entity to be regulated by, guess what? – their regulatory tools -- as if one, having only a wrench, could play “Mr. Goodwrench” by using it as a screwdriver (and thereby screwing who, or what?).       

 

Other contrasts with the FEC’s money-centric, conventional organizational standpoint via Stoller:

 Note that at least two of the above are allusions to the self-organizing, self-policing nature of the ‘Net, features that needed much more discussion at the hearings.

 

Finally, it was apparent that the source of both statutory law and embodiment of old thinking that guided the FEC hearings is the pride and joy of campaign finance  reform (CFR), the Bipartisan Campaign Reform Act of 2002 (BCRA). This is the latest attempt of self-styled political “reformers” to wrap their controlling, lawful good intentions (what the road to hell is paved with) around the dynamics of a political system that is self-similar to the dynamics of the Internet. Larry Noble of the Center for Responsive Politics, quite representative of the CFR school, was there to testify, too, during day 1, panel 2 of the hearings. He expressed the unresolved tension between the “mindsets” noted earlier: “The Internet is beyond the FEC’s knowledge and scope. New rules, if not carefully constructed, would have a chilling effect on Internet political speech.” But he then goes on to express the great fear of the Democratic members of the Commission and of the CFR advocates generally – that of “opening up a new loophole” through which big money can “corrupt” political campaigns. Noble continued: “The Internet will attract increasing amounts of big money.”

 

The danger of the CFR mindset revealed here is subtle but very real: It is a presumption in favor of what others called “prophylactic” regulation – new rules based on hypothetical rather than actual evidence of any harms. Noble, for example, stated that the scope of FEC regulation should not be limited to “bloggers.” Netizens beware! Rules are being drafted as you read this. Now is the time to lobby Congress to revisit and revamp CFR.

 

 Peter Bearse, Ph.D., Contributing Editor, PoliticsOnline and author of WE, THE PEOPLE: A Conservative Populism, including Chapter 8: “Digital Democracy? – the ‘Web, ‘Net and Media of Politics” and a wholly new approach to CFR. Website: www.politicalcommunity.us. E-mail: peterJ@politicalcommunity.us.