Adam Bonin has challenged the reform community to answer certain questions about its reading of the CDT proposal, the suddenly popular alternative to HR 1606. 

      Bonin has heard various assurances about what the bill would do, but he prefers to proceed with caution and to have explicit confirmation.  Rick Hasen seems to hope that the exchange invited by Bonin, should it occur, will render the issues at stake more "tangible."  

      The answers he should expect are already available through the Democracy 21 website.  Mr. Wertheimer and company have posted a series of comments favorable to CDT and hostile to Hensarling, eight in all:  five of them descry "loopholes" allegedly ripped into the law by Hensarling, and all of them, even without reference to loopholes, are united in their overriding concern with the sovereignty of the campaign finance laws, not the protection of the Internet.

      It is in this context that the reform community’s embrace of CDT should be understood:  it is the regulatory alternative to Hensarling, designed to place the Internet squarely within the restrictions of the FECA and the jurisdiction of the FEC.

      This will not deter the reform community from offering interpretations tailored to the needs of the hour.  We will hear that CDT does more to protect online speech, and that Hensarling leaves online speakers exposed to an assortment of liabilities under the Act.  This will be asserted, and the argument will stop at assertion:  little more will be presented in support of these claims.  They are largely to be taken on faith. 

      Experience with reform lobbying in the past would suggest that there is some hazard in placing too much faith in these representations.  The same reform proponents now seeking recognition as defenders of Internet politics conspicuously objected to any protection for Fired Up, which submitted the most important request to date for FEC approval of on-line political speech and commentary.   Adam Bonin then rightly argued the opposite position.  The difference between Bonin’s clients and the reform community then, before the FEC, was the same difference separating them today, before the Congress:  as Bonin wrote at the time, it is the difference between two "paradigms," one that sees the Internet as "inherently different" and the other as "a threat to clean elections similar to commercial mass media."  Democracy 21, on its own behalf and also for the Campaign Legal Center and the Center for Responsive Politics, took exception to Fired Up’s "overly partisan purpose," including its stated goals of supporting Democratic candidates and ‘progressive candidates and causes at all levels.'"  

      This was less than a year ago.  Also in 2005, the reform community participated in the FEC rulemaking on Internet activity, which was necessary only because of a legal challenge brought by that same community unhappy with the agency’s deregulatory approach.  At the time, Democracy 21 and its allies stressed the need in Internet regulation "to draw careful lines," with protection narrowed to that needed by "individuals"   
(stating that regulation should not "chill the beneficial use of the Internet at little or no cost for political discourse by individuals"; "the campaign finance laws can and should be read to provide ample breathing room for Internet campaign activities by individuals.")  Bloggers, as individuals, "should also generally be left free from regulation," but only where they provide a "function more similar to classic media activities." (emphasis added).  The reformers emphasized caution, limitation and "careful" line-drawing, to be achieved through regulation:  the dominant concern was not "allow[ing] the Internet to become an unregulated haven for unlimited soft money to be used in derogation of the campaign finance laws…"

     The same reformers touting CDT’s proposal as expansive protection of the Internet seem to have had a well-timed change of heart.  This reform support for CDT is simply a tactical adjustment, to last only as long as required to meet the threat from Hensarling.  CDT is, on its face, a "compromise," but for the reform community, it is a political, not a policy, compromise, and it serves reform purposes well at the present time.  As proposed, it provides the "alternative" needed to derail Hensarling; if enacted, it will establish the proposition that Internet political activity in all its particulars is properly regulated, setting the stage for a new FEC rulemaking to impose new rules.  To refer again to the reformers’ comments in the Internet rulemaking, it is an exercise in line-drawing, and once the lines are drawn one way, the case can—and will be—made that they really should be drawn another, more tightly.

      So for those tempted to put much stock in organized reform community assurances heard in the clash over Internet regulation, there is this advice:  it would be better to consider what they’ve done, not what they now say.

Bob Bauer