FEC Commissioner Brad Smith set off a blogstorm yesterday based on this comments (that I first noted here) relating to a pending FEC rulemaking on Internet campaign activity. The interview also set off a lively and informative debate on the election-law listserv. I’ll be weighing in on this in the next few days. In the meantime, I note that many people have suggested to me that Smith did this intentionally so as to get a flood of comments into the FEC opposing regulation (much like the flood of letters that came in from 501(c)’s who did not want the FEC to regulate their activity last Spring.) Of interest is Trevor Potter and the Campaign Legal Center’s press release on the topic:

In a recent interview with CNET, Federal Election Commissioner Brad Smith claimed that as a result of new campaign laws and and a recent court decision, online news organizations and bloggers may soon wake up to find their activities regulated by government bureaucrats. That would indeed be troubling, if it were true. Fortunately, Mr. Smith – an avowed opponent of most campaign finance regulation – is simply wrong.
The issue the FEC – and the courts – are grappling with is how to deal with online political ads by candidates and parties, and with paid advertising that is coordinated with those groups. As the Internet becomes a vital new force in politics, we are simply going through a natural transition as we work out how, and when, to apply longstanding campaign finance principles – designed to fight corruption – to political expenditures on the Web. Mr. Smith has advocated an extreme position that politicians, parties and outside groups can pay for Internet advertising with “soft money” – unlimited, unregulated checks from corporations, labor unions and wealthy individuals. A federal court rightly rejected that position, saying that the new ban on soft money in our elections obviously applies to Internet advertising, too.
These laws are decidedly NOT aimed at online press, commentary or blogs, and the Bipartisan Campaign Reform Act of 2002 was carefully drafted to exclude them. The FEC has now been asked to initiate a rulemaking to work out how to deal with different kinds of Internet political expenditures, and there will be plenty of opportunity for public commentary. The Commission’s duty then will be to distinguish candidate and party expenditures, and coordinated independent expenditures, on the Internet (which should be subject to campaign finance law like any other expenditures) from activity by bloggers, Internet news services and citizens acting on their own that should remain unregulated, free and robust.
Mr. Smith’s comments are obviously designed to instigate a furor in the blogosphere to pressure Congress to reverse the court decision requiring that paid political ads on the Internet should be treated like any other paid advertisements. Mr. Smith has a right to try to win converts to his anti-regulatory philosophy, but he has an obligation to present the issues fairly and forthrightly, and his comments to CNET fail both tests.
For more information on why the sky is not falling, see a chapter on the history of the FEC regulation and deregulation of the Internet by Trevor Potter, former FEC Chairman and president of the Campaign Legal Center, and Kirk Jowers, deputy general counsel for the Legal Center in the Brookings Institution’s New Campaign Finance Sourcebook.
For the relevant court decision, please click here.
For information on the future FEC rulemaking, see the agency’s website at www.fec.gov.

More to come.