The FEC Ponders Whether Jay Leno Is Breaking the Law

Henry Hanks points out the absolutely insidious reality of campaign finance reform.

This Yahoo! story describes how the philosopher kings at the Federal Election Commission voted on whether or not monologues by comedians like Jay Leno are covered under the new campaign finance law . According to the story (emphasis added),

In its first vote spelling out how those restrictions will be applied, the FEC agreed 6-0 on Thursday to exempt some types of programming that broadcasters are not paid to air. Commissioner Karl Sandstrom said the move would keep public service announcements, late night comedy monologues and talk shows that mention or feature federal candidates from falling under the new law’s restrictions.

Commission lawyers said the exemption wouldn’t automatically keep those kinds of programming from being considered a campaign contribution. That would be considered case by case, they said.

Every time free speech objections to campaign finance reform are raised, they are dismissed as simply posturing by supporters of campaign finance reform. But here we have a bunch of un-elected bureacrats deciding whether or not Jay Leno can make fun of politicians on national television.

As Hanks puts it,

In other words – Dave, Jay, and especially you political talk show hosts out there (both the Godfathers and the Mike Malloys) – “Watch what you say.” Interesting how this doesn’t get quite the same reaction it did when it was Ari Fleischer.

My prediction — eventually the FEC will try to take action against weblogs. Look, for example, at all of the weblog-related activity centered around defeating Cynthia McKinney during her primary. Yes that was free speech but it was also electioneering, and campaign finance reform is predicated on the view that the latter is not protected by appeals to the former. And, it is not clear that courts will afford weblog-style sites the same consideration that newspapers receive (in fact in some cases they have clearly said that some guy in his bedroom updating a personal web site does not deserve the same legal rights as a newspaper doing the same thing from an expensive office building).

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