February 10, 2009
Insta Pundit
University of Tennessee
School of Law
Knoxville, TN
Dear Mr. Pundit,
I am writing to inform you that the Federal Election Commission
has voted unanimously to support my recommendation that there is
“reason to believe” that you have violated federal election law.
Pursuant to that finding, the Commission has opened an
investigation of these violations.
I hereby direct you to provide sworn written answers to the
following questions related to your violation of federal election
law.
1. Did you on or before August 30, 2008, state on your “blog” that
“If elected, Hillary Clinton will be the worst U.S. president of my
lifetime”?
2. Did you on or before August 10, 2008, state on your “blog”
that “John McCain is an enemy of the First Amendment. If he is
elected president, the nation is in trouble.”?
3. Did your “blog” on August 10, 2008, and August 30, 2008,
receive in excess of 100,000 visitors?
As part of its investigation, the Commission has subpoenaed your
hosting company to provide information about activity on your
“blog” on the dates in question in relation to the questions
above.
Please note: if you refuse to provide sworn written answers to
these questions, the Commission can ask a federal district court to
enforce these subpoenas and orders.
In your last letter to the Commission, you stated that “my
alleged blogging about Senators McCain and Clinton is protected
from government regulation by the First Amendment to the U.S.
Constitution.” You conclude: “The Constitution says ‘Congress shall
make no law… abridging freedom of speech.’ No law means no
law.”
This is incorrect. The Supreme Court has long recognized that
Congress may restrict the financing of campaigns to prevent
corruption or the appearance of corruption. The Court has also
stated that Congress may close loopholes in campaign finance law by
regulating speech that influences federal elections.
In 2008, Senators Clinton and McCain were the major party
candidates in a federal election for the presidency. The Commission
has ruled that messages that reach over 100,000 voters nationally
(or 25,000 voters in an electioneering area) may be assumed to
influence a federal election. The complaint against you alleges
that your statements received well over 200,000 hits on the dates
in question.
You also state that you received no payments to blog about the
election from any candidate, candidate’s committee, or political
party. That is irrelevant. Congress and the Commission, with the
blessing of the Supreme Court, have decided that your influence on
federal elections justifies regulation of your activities. If your
attempts to influence federal elections were not regulated, the
entire structure of campaign finance regulation (and hence, the
very integrity of our democracy) would be threatened.
Frankly, we are surprised that a law professor would make such
absurd claims based on the outmoded “Congress shall make no law”
view of the First Amendment. In fact, Congress has complete
authority to regulate freedom of speech to realize the values
underlying the First Amendment. If you doubt that, please read the
Supreme Court decision in McConnell v. Federal Election
Commission (2003).
In 2007 Congress passed the Internet Freedom, Responsibility and
Level Playing Field Act which states that Internet messages
influencing federal elections shall be valued at ten cents per
voter affected by the message. If the facts are as alleged in the
complaint, you have apparently contributed $20,000 to the
presidential campaigns of both Senator McCain and Senator Clinton.
Federal law limits individual contributions to $2251.01
annually.
The Office of General Counsel will review your sworn, written
answers to these questions and prepare a brief that recommends
whether the Commission should find there is “probable cause to
believe” you have violated federal election law. You or your
attorney will have fifteen (15) days to respond to this brief.
Have a great day,
Office of General Counsel
Federal Election Commission
