Whose blog is this?

Might my blog be prohibited from endorsing candidates for office within the magic number of days before an election?

Short answer: I don't know.

Long answer: I still don't know.

Via Eugene Volokh, I found and attempted to read today's Supreme Court decision upholding the McCain-Feingold Act.

The decision is 298 pages long, so happy reading! I was concerned with language I found on pages 72, 80, 99.....

But I still couldn't make much sense out of the decision because they kept referring to the Act itself.

Looking elsewhere on the Internet, I finally found the McCain-Feingold Act.

Guess what? It runs another 89 pages -- some 13,448 words.

Words like these -- which confounded me to no end:

(a) IN GENERAL. Section 316(b)(2) of the Federal Election Campaign Act of 1971 (2 U.S.C. 441b(b)(2)) is amended by inserting "or for any applicable electioneering communication'' before ", but shall not include''.
(b) APPLICABLE ELECTIONEERING COMMUNICATION. Section 316 of such Act is amended by adding at the end the following:
"(1) APPLICABLE ELECTIONEERING COMMUNICATION. For purposes of this section, the term 'applicable electioneering communication' means an electioneering communication (within the meaning of section 304(f)(3)) which is made by any entity described in subsection (a) of this section or by any other person using funds donated by an entity described in subsection (a) of this section.
"(2) EXCEPTION. Notwithstanding paragraph (1), the term 'applicable electioneering communication' does not include a communication by an organization described in section 501(c)(4) of the Internal Revenue Code of 1986 or a political organization (as defined in section 527(e)(1) of such Code) made under section 304(f)(2) (E) or (F) of this Act if the communication is paid for exclusively by funds provided directly by individuals who are United States citizens or lawfully admitted for permanent residence as defined in section 1101(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(2)). For purposes of the preceding sentence, the term 'provided directly by individuals' does not include funds the source of which is an entity described in subsection (a) of this section.
"(3) SPECIAL OPERATING RULES. For purposes of paragraph (1), the following rules shall apply:
"(A) An electioneering communication shall be treated as made by an entity described in subsection (a) if
"(i) an entity described in subsection (a) directly or indirectly disburses any amount for any of the costs of the communication; or
"(ii) any amount is disbursed for the communication by a corporation or labor organization or a State or local political party or committee thereof that receives anything of value from an entity described in subsection (a), except that this clause shall not apply to any communication the costs of which are defrayed entirely out of a segregated account to which only individuals can contribute, as described in section 304(f)(2)(E).
Obviously, you cannot get any idea what the language "any entity described in subsection (a) of this section or by any other person using funds donated by an entity described in subsection (a) of this section" means without tracking down and reading subsection (a) of "this" (now-amended-but-not-present-in-McCain-Feingold-text) "section."


So, another Internet search took me to the original Federal Election Campaign Act of 1971! (A monstrosity which runs a mere 225 pages....)

But note that because section 316(b)(2) of the Federal Election Campaign Act of 1971 is actually 441b(b)(2), magical subsections like "(a)" don't exactly stare you in the face.

QUERY: How are people supposed to follow the law when the law can't be found or read -- and (if found and read) understood without reference to Opinions running nearly 300 pages?

Finally, I found the language:

(a) It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person knowingly to accept or receive any contribution prohibited by this section, or any officer or any director of any corporation or any national bank or any officer of any labor organization to consent to any contribution or expenditure by the corporation, national bank, or labor organization, as the case may be, prohibited by this section.
OK, so that is what (I think) has been amended by McCain-Feingold.

The Act seems to say that a "communication" -- if originating from a corporation -- is now a "contribution." This defies common sense, but I guess I should be glad that my blog is mine, and not published by a corporation.

At least, I certainly hope it isn't. Some courts seem to have held that the ISP is indeed the publisher, and is analogous to a radio station:

An ISP's role in the Internet is similiar to that of a radio station. They have the responsiblity to control how, when, and by whom the information is presented.
Most ISPs are corporations, of course.

Now, it may sound ridiculous to maintain that what I publish on my web site might be taken as a communication by my ISP, but don't laugh!

ISPs have been successfully held liable in a variety of contexts as "publishers" of what their customers wrote.

However, the trend seems to be in the other direction.

For now.....

Meanwhile, I share the concerns expressed by Eugene Volokh and Clarence Thomas.

(The above was no fun at all to write. People should be paid for such pain.)

UPDATE: On a related note, the inexplicably intelligible Glenn Reynolds links to an article which claims much legal writing is unintelligible!

Nothing new about that!

posted by Eric on 12.10.03 at 04:27 PM


Listed below are links to weblogs that reference Whose blog is this?:

» Crossing the Rubicon... from De Doc's Doings
When people as calm and reasonable as Eugene Volokh see the recent Supreme Court decision as opening the door to government regulation of the press, and erudite, sane folk like Eric Scheie can't even ascertain whether or not blogs might fall under the ... [Read More]
Tracked on December 11, 2003 4:58 PM


I hate to say it, but the Texas sodomy law was a lot more fun to read.

Steven Malcolm Anderson   ·  December 11, 2003 2:27 AM

I hate to say it, but it was probably more fun to violate, too!

Eric Scheie   ·  December 11, 2003 11:15 PM

Ohh, yes! Far more!

Steven Malcolm Anderson   ·  December 12, 2003 2:37 PM

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