The FEC’s approval of the Fired Up Opinion is not significant only because of the particular activity under review and now blessed.  What those who have worked in this field may also sense is the difference that wide public interest makes to the Commission’s decision-making.  The agency rarely decides questions thought to have much importance beyond the narrow circle of the “regulated community”:  of politicians, parties, PACs and the other usual suspects. Its meetings are thinly attended; its proceedings receive spare attention outside the trade press.  The Fired Up question was different, raised at a time when the the blogospheric multitudes were provoked to engagement by the threat of government regulation.  Only two weeks ago, the Congress joined indirectly in the debate, when the House considered the Hensarling amendment, and it has been expected that the same bill will be put before the body again, on regular order.  These circumstances, drawing broad public interest and Congressional attention, are exceedingly atypical.

     The expanded constitutional justification for regulation blessed by the McConnell decision has now received its first public test.  The reform community, suing in pursuit of Internet regulation, also opposed Commission approval of Fired Up’s activities, but it found itself all alone, straining to make its case credibly.  It also showed a failure of nerve, submitting evasive comments that sought to avoid frontal offense to the Internet community while still hoping to steer the Commission toward adverse judgment.  As noted here previously, the reform community has been stymied by the challenge of arguing for restrictions that, unlike most they favor, will be felt by a large number of people outside organized, professional politics.

     The Congress will take up Hensarling again, and the same problem will face reformers calling for limits on Internet politics in the name of “corruption” and “circumvention.”  This time, however, the bill will be voted on the merits, without the procedural irritant resulting from the use of the suspension calendar, and there is every reason to believe that the majority achieved last time (insufficient under the special suspension rules) will grow with both parties’ support.  In the Senate, the measure is sponsored by the Democratic Leader; Republican support is assured; and so the question is not whether the bill, if voted, will pass, but whether it will be put to a vote amid the crowded calendar likely to tighten still more under election year pressures and contingencies.
 
     As all this takes place, the Supreme Court, at least in the Wisconsin Right to Life case, may be thinking again about the extreme elasticity of the McConnell jurisprudence.  The Court will not likely run too far away from McConnell, but it may be prepared to restrain its overheated further expansion.  It may be affected in this choice by the assortment of voices raised, loudly, against the program of enforcing the “electioneering communications” against grassroots lobbying by charities and other nonprofits in the months before elections.  NIMBY ("not in my back yard") in the field of campaign finance has made its appearance at long last:  it is one thing to demand government action to limit the speech and association of the political class—or just of others—but entirely less likely that it will seem so desirable closer to home.

Bob Bauer