The Battle Begins

Patterico asks us to put up or (be) shut up by any future FEC rules that could become the progeny of the Bipartisan Campaign Finance Reform Act of 2002.

I think it’s time to put the question to you directly. Who out there will make this pledge:

If the FEC makes rules that limit my First Amendment right to express my opinion on core political issues, I will not obey those rules.

But another Bear Flag League lawyer, XRLQ, has some amendments to the pledge.

My only concern with a pledge like this is that it’s too broad. Existing FEC rules already limit our First Amendment rights to express our opinions on core political issues in other fora; are we supposed to go out and violate those rules, or only new ones applicable to blogs? [SNIP]

Breadth concerns aside, I do think the basic idea behind the Patterico Pledge is sound, and am therefore prepared to take a slightly modified version of said pledge.

If the FEC makes rules that unreasonably limit my First Amendment right to express my opinion on core political issues, I will not make any special efforts to obey those rules, and if given a reasonable opportunity to violate them, I will do so.

(All emphases belong to the authors.)

California lawyers, sheesh! [insert lawyer joke here]

XRLQ continues,

My thought is that if the FEC really does go overboard in the manner FEC Commissioner Bradley Smith suggested it might, the best way to fight back may be to not only violate the law left and right, but to flood the FEC with morally frivolous but legally meritorious complaints about ordinary political bloggers doing ordinary political blogging. However, I don’t want any innocent non-participants pulled into the dragnet against their will. Instead, I’d suggest we form some kind of club, whose members not only allow each other to rat them out, but actively encourage it, from members and non-members alike.

and makes a second pledge:

If I choose to disobey any FEC rule that I believe unreasonably limits my First Amendment right to express my opinoin on core political issues, I will not discourage, and will in fact actively encourage, other bloggers to report these violations to the FEC.

Crafty thinking, gentlemen. I'm in.

(Thanks to Little Miss Attila)

Comments

[StinKerr]

They know not what they do.

Messing with the blogosphere might teach 'em a lesson they'll never forget. The lesson would be that they and the people who appoint them are supposed to be representing "the people". They need to realize that the blogosphere is "the people" in all their unvarnished differences.

Attacking them or trying to restrict them will unite them -left, right, centrist and lunatic fringe - in a common cause. An awesome thought.

The FEC is toast.

[Rick]

Good points. I posted the original when I read it. Fools rush in, I suppose...

On the other hand, this theoretical rule is astoundingly dangerous. What's next? Bumper stickers and lawn signs? And after that? Well, come to think of it, even a person's individual conversation about a candidate "contributes" to the candidate's cause, doesn't it?

If we don't stop this FEC/BCRA foolishness now, that's exactly where we are likely to end up.

[wayne]

I am so sick and tired of Congress and politicians that you can't even imagine.

They steal our money, they kill our children, they protect the rights of murderers and terrorists, they coddle illegal aliens, they try to make the surviving kids into hedonistic athiests who are going to Hell, and now they want to stop us from talking back to them. We booted the Brits for this sh*t. Maybe its time we booted Washington.

Baldilocks, my friend, if it weren't for the fact that I believe in Christ, I don't even like to think of what I'd try to Congress. They are all a bunch of lying, murdering, cowards, theives, and traitors who need to be removed along with a whole bunch of robed fascist judges.

[Cassandra]

Actually, I hate to be a stinker, but I think XRLQ has the right of it.

Signing a blank pledge not to obey unwritten legislation you haven't seen yet doesn't really strike me as the most responsible thing (coming from a lawyer) in the world.

I'm going to go out on a limb here, Juliette and say: how about being grown up about this?

We criticize journalists all the time about thinking they're above the law. If you disagree with the law, persuade your fellow citizens to change it. Persuade.

I've been thinking about this one for a while. It will be quite amusing to watch the **** hit the fan (which I think, by the way is unlikely to happen) should the worst come to pass.

[baldilocks]

Um, Cassandra: How, exactly am I not being "grown up" about this? It's not my business to persuade you. It *is* my business to write whatever I feel like writing. (Surely, having a blog yourself, you can understand that.) You can look at sites that do attempt to persuade on this subject or you can sit here and not be persuaded.

Citizens cannot change the law. Legislative and judicial branches of a government can. It's my job (and yours) to persuade our reps and senators.

The law (McCain-Feingold)was passed by congress, signed by GWB (yes) and has been deemed constitutional by the SCOTUS. As I understand it, it can only be changed by having legislation passed that nullifies it or by being declared unconstitutional. The last time a law that had been declared constitutional was reversed, sixty years had intervened between its being upheld and being struck down. (And, figure the odds on the same SCOTUS undoing their own handywork; legal eagles feel free to correct any errors.)

So while we're being "grown up" and waiting around for the "wheels of justice" to turn, feel free to not be persuaded. We'll help you out too--if we can--just because it's the right thing to do.

[Cassandra]

Juliette, I chose my words poorly, and I do apologize for that - in re-reading it was not my intent to accuse you (or anyone else for that matter) of not being grown up. That was impolite and unncessarily in-your-face, and it was not deliberate. Again, I'm sorry. I don't ever try to provoke people during an argument, and am usually better about not doing it inadvertently. We were cooking steaks while I was commenting and I was a bit rushed.

And actually laws are held unconstitutional all the time - just Google "law held unconsitutional". It took me under 30 seconds to find these three:

http://www.freeexpression.org/newswire/02262_2002.htm

http://www.voiceoftheinjured.com/a-gen-ohiotortreform.html

http://www.cnn.com/2005/LAW/01/13/evolution.textbooks.ruling/

My point was (simply) this:

1. If the law is already on the books, then the test of its rigor is how it will be enforced, n'est pas? That is ALWAYS the only important test. And laws (especially by regulatory agencies) are amended every day - they publish fat reg manuals - people - lawyers - are hired just to keep up with the changes.

Politics is pressure and persuasion - it always has been. Sit-ins rarely work. They're ignored.

But organize and persuade the public and you have something there. I still see this as a misuse of energy if you really believe this is a danger.

What I'm seeing is a collection of writers whose response to something they perceive as a danger to their ability to write is to.....(pick one) :

a. use their powers to get the American public up in arms about this? Nope.

b. to raise awareness and educate voters - get them to contact their Congressmen - maybe get McCain-F (bad law) amended? Nope.

c. join forces with the media - that would be a powerful coalition. Nope.

d. threaten not to obey the law. Bingo.

And my very first comment on this issue (which you could not have seen) was that civil disobedience is ALWAYS still an option. And I think I said that in my post.

I just see little point in promising that this far in advance. I take something like that EXTREMELY seriously - you could (would) lose your job, house, car, etc. I have people who depend on me. And, having made such a promise, I could not with honor renege, no matter the consequences.

So no, I will not sign in advance. And yes, I might find myself, on that sad day, if it ever came, doing exactly the same thing. And people can be snarky, but should not, really. Because that is a very big decision that only an individual can make after serious thought. And I have to be completely honest here. When I see a big list of signatories, I can't help wondering how many would find themselves forced to back off when push came to shove - if you have a family to feed and the Internet is not the ONLY place you can express yourself, are you going to place your family's future in jeopardy? I know some people thought of that and signed anyway. I suspect, having read more than a few history books, some did not really think it out.

I'm slow to speak and commit. And I like to think things over. I've been with the same man for 28 years and I've gotten up at 4 am for over a year now and posted 4-5 items a day most days, so once I do commit, I consider myself bound by my word.

What you have not promised, you can still do, anyway voluntarily. But what you DO promise to do, you are bound to perform, no matter the consequences.

[baldilocks]

Cassandra:

Apology accepted.

1. Isn't blogging about it "us[ing]...powers [at hand]to get the American public up in arms about this?"

2. I have read a good two dozen posts from others about this subject urging others to write their congressional representatives, so I didn't want to be repetitive. Most who follow political blogs know who their reps and senators are. Mine are (Senators) Dianne Feinstein, Barbara Boxer and (Rep.) Maxine Waters.

3. One of the reasons that many are dubious about a media coalition--outside of talk radio sorts(see Hugh Hewitt)--is that most would be only too happy to shut bloggers up. If you haven't been reading the op-ed pieces penned by those who are threatened by bloggers--especially after the CBS-Rather and Eason Jordan scandals-I'll send you some suggested reading.

*****
If someone is lambasting you for not entering into this agreement or you see anyone lambast others, please point them out to me so I can hold them up for ridicule here. Personally, I haven't seen anything like that.

If you chose not to sign up, it's your business, especially with all of your responsibilities. I have very few of those.

I'm slow to commit for some things as well. I didn't marry until I was thirty, and since that fell apart in only a year and a half, I haven't even come close to remarrying though I've had opportunities (I'll be 44 this year.) So don't think that others are impulsive beings simply because they act and react differently than you do. For me, some subjects require slow consideration; others require quick action.

I read history books for diversion's sake also. On the docket right now: The Rise and Fall of the Third Reich; first read it almost thirty years ago (reading it was one of my motivations for learn the German language when the opportunity presented itself). That's why I deem that such little things must be nipped before they grow. It's too late to do that, however. The seed has already been planted by McCain-Feingold. Maybe an as-yet non-existent progeny to McCain-Feingold ,will be one of the laws that no one pays attention to--though it's already being discussed by the FEC--but why take that chance? Someone has to take a stand for those who can't.

(Sorry for the slight Godwin violation.)

[Cassandra]

I suppose this issue hit a nerve (two nerves, really) with me.

One is the growing disrespect for law in this country - both from our own Supreme Court and ordinary citizens.

Before I start, let me say (and I did acknowledge this in my post) that there is a role for civil disobedience in rare instances. But I hear the argument advanced all the time now: "Hey, don't agree with a law? Take the government to court. Make them force you to comply."

I hear this from grown ups. I hear the same reasoning from children - this is what really frightens me Juliette: it's almost the prevailing mode of thought -- you can't make me.

Well darn it all, I guess I'm old fashioned but societies don't work very well if everyone runs around testing the system 24/7. We have parents teaching their kids to buck the system in school and then they're proud of them for being twits. So again, I affirm my position: do your upmost to uphold the sanctity of law by changing it through the system first. This is what we should teach our children.

I truly believe there are valid public policy reasons for upholding respect for the law.

And if that fails, as I have stated many times, I will defend the Bill of Rights, with everything I have. I'm from a long line of military, and I've lived my whole life not able to do a lot of the things I really wanted to do, because my husband believed it was more important to serve his country. And I agreed.

I don't think I'm going to be able to get my point across, and I'm sorry for that, but my comment wasn't really so much prompted by any desire to criticise your position so much as to comment on XRLQ's use of "unreasonable" limits, which I saw as not so much lawerly as thoughtful.

As I have said in an earlier post, I think there may be some forms of blogging that may legitimately fall under McC-F (which is a stupid law) if money is involved. Grassroots blogging clearly does not.

If and when an unreasonable and clearly unconstitutional ruling comes down, even if I were no longer blogging on that day, I would very likely start one up just to be ornery - blogging has been that important to me. I guess I just wish that if people wanted to jump on a bandwagon, they'd jump on a bandwagon to try and get the law changed by working through the system, instead of breaking it.

It's a lot of hard work, but in the long run that's the democratic process - change the law through the legislature, not the courts. Persuade the people - persuade Congress this is the wrong path, as you note some bloggers are trying to do. Why can't we get the whole blogosphere behind that?

A lot of times, the right way is much harder than the quick way, and I see a test in the courts as the quick solution, not the right solution.

[baldilocks]

Keep in mind that you talking to a person who spent most of her adult life following the orders of those appointed over her, a more stringent set of laws that the average civilian has to follow. There are few that believe in the sanctity of *reasonable* law more than I do. Unreasonable laws, however, are a different story and even the military makes allowances for that.

you can't make me.

You can't stop yourself from being condescending, can you? Adults can and do engage in civil disobedience more often than you know.

Well darn it all, I guess I'm old fashioned but societies don't work very well if everyone runs around testing the system 24/7.

Isn't that touch of hyperbole a bit overblown? We're not talking about breaking every law known to God and Man.

We have parents teaching their kids to buck the system in school and then they're proud of them for being twits.

???? What does this have to do with congress incrementally encroaching upon the reasonable free speech of adults? BTW, you can rest assured that I'm not teaching my offspring these things, since I have no offspring.

comment wasn't really so much prompted by any desire to criticise your position so much as to comment on XRLQ's use of "unreasonable" limits, which I saw as not so much lawerly as thoughtful.

So did I, which is why I agreed with him. The lawyer comments were only in jest. Sorry if you didn't get the joke.

Regarding the courts: various jurisdictions from the SCOTUS have upheld all sorts of *unreasonable* laws lately, from McCain to Schiavo and everything in between. I'm glad you trust them. I did too, at one time.

If you're not willing to act or react, that's your prerogative. As I said before, no one should look down on you because of it. However, please give those of us who have different priorities the same benefit of the doubt or, if not, at least be courteous enough to refrain from calling us children. You have your resonsibilities; others have theirs.