Hugh Hewitt: Is the FEC Bell Tolling for Bloggers? (How to comment on upcoming rulemaking)

HughHewitt.com ^ | March 20, 2005 | Hugh Hewitt

[OESY]

Red State's Mike Krempasky sends along the link to Instapundit's remarks at the IPDI conference, along with a heads-up to "[k]eep in mind - we could get the FEC proposed rules as early as tomorrow."

While I am a skeptic on the level of genuine threat the FEC proposes to the blogosphere, twenty years of practice as a federal administrative lawyer both in and out of the federal government has taught me to pay particular attention to rulemakings at every step of the process --even if the proposed rules do not appear to present much of a threat to your interests. No matter how indirect the threat appears from the proposed rules, bloggers will want to submit their comments to the Commission in overwhelming numbers and detail. Most will never have participated in a rulemaking before, so here's a beginner's guide to the process.

First, here's the FEC page on their rulemakings currently underway. Bookmark it and check back frequently, though the blogs will sound any necessary alarms.

Here's a PDF of a recently concluded FEC rulemaking that garnered only two comments. It provides a taste of how the process works.

Here are some specific suggestions:

*Send hard copies of your comments as well as any electronic filing that is permitted. The FEC routinely accepts e-filings, but sending in snail mail is a great insurance that your comments will not disappear into someone's ahrd hard One of my comments will be that the FEC accept and immediately post any e-comments from the public on any proposal that could impact e-debate. [It would be wonderful if RedState or some other group agreed to act as a central repository of all filings --which could run into the hundreds of thousands if the blogosphere figures out how to play this game.]

*Identify the rulemaking with precision, and demand in the course of your letter/e-mail that you wish to have your comment responded to with specificity.

*Make broad comments, but also comments specific to the sections of the proposed rulemaking.

*Raise related issues not covered by the rules, and demand specific responses to the concerns you raise.

*Demand that you be notified of any development in the rulemaking.

*Demand that the time for comments be extended.

The administrative record will consist of the proposed rule, the comments received, and the response to comments filed by FEC staff. The more comments, the better the chance of delaying silly rules, and the better the chance of alerting the FEC to huge problems in the rulemaking. At its best, rulemaking provides regulatory bodies with new information that must be accounted for, hard questions to ponder, and a sense of the scale of opposition brewing. As a matter of law, any matter brought up by any commentator can be raised by any litigant in subsequent court actions.

Here's one online summary of rulemaking procedures under the federal Administrative Procedures Act. (Skip over the unrelated material on New York practices and procedures.) Here's another overview written in laymen's language.

I suspect that with direction on process, this rulemaking will yield the most comments in the history of federal rulemaking, and also a set of court proceedings that will truly be unique. If I hear from enough bloggers willing to participate, I will also set about raising funds to employ appropriate D.C. counsel to represent the blogosphere in the rulemaking proceedings before the FEC. That's not cheap, but perhaps a deep pocket blogger like Mark Cuban would like to chair a rulemaking and litigation oversight committee that included a politically diverse group of bloggers like Glenn Reynolds and Juan Cole, Virginia Postrel and Ann Althouse, and which raised funds and provided direction to counsel?

If the FEC does really appear to be headed towards an unconstitutional regulation of cyber-speech, I will write extensively on how FOIA might be used to help the bloggers slow down the Commission's zest for stomping on speech. For the interested, try and get a hold of Vladimir Bukovsky's classic, "To Build a Castle: My Life as a Dissenter." All bureaucracies have the same weaknesses in common, and Bukovsky's account of paralyzing the Soviet apparatus with paperwork is a wonderful introduction on how to battle the great engines of rule-making in D.C.

But I still don't think the FEC is that stupid.

[bfree]

I guess the First Amendment is just another in a long line of Amendments the liberals don't like.

[muawiyah]

38 years experience in writing, then enforcing, federal regulations tells me the above information is essentially correct.

It's time to start commenting on rules proposed by the FEC.

In addition, every blogger should be prepared to defend the right to say what he wishes by all means up to and including the Second Amendment.

Otherwise their staff attorneys won't believe you're serious.

[Truth29]

Reference bump.

[DManA]

Don't get mad at the FTC. Get mad at Congress and the President. FTC is just doing their biding.

[sierrahome]

Great...looks like it's back to my CB radio from the 70's. "Well good buddy I'm 10-8 and on the side, but first I'll be 10-56"

[NCSteve]

The FEC can bite me. Did you hear that FEC? B-i-t-e M-e.

The "blogosphere" is a much bigger bite than you can swallow.

Now go away or I shall taunt you a second time.

[jrewing]

FEC, meet the First Amendment. Go to hell, FEC. You DO NOT trump the First Amendment, so go to hell beaureaucrats and kiss my a** on the way there.

[festus]

Maybe the 1st is now like the 2nd and "the people" now refers to organized and controlled state agencies and not the general riff raff........

[carl in alaska]

Yes let's all give them our comments. I'm not too worried about FEC regulations because in just 30 minutes of my own thinking (just one man), I thought of a dozen ways to get around any FEC regulation of the internet. If the FEC tries this stuff, they'll be chasing electronic shadows and ghosts for a hundred years. They'll never know who is writing what and where that person is actually located. There are a thousand ways to defeat any regulations. I'm not going to go into detail because it's best for us to play our cards close to the vest.

[c-five]

http://hughhewitt.com/#postid1466

A direct link to the specific post.