First, here is a quote I found while rootling about in the McCain/Feingold story, which Dale Amon has already posted about here. Here is the bit that interested me:
These laws are decidedly NOT aimed at online press, commentary or blogs, and the Bipartisan Campaign Reform Act of 2002 was carefully drafted to exclude them. The FEC has now been asked to initiate a rulemaking to work out how to deal with different kinds of Internet political expenditures, and there will be plenty of opportunity for public commentary.
This denial is, of course, the result of the exact opposite having been alleged. I read it because one Winfield Myers of the Democracy Project quotes it, and notes that the quotee, a hot shot lawyer, makes very little of his past legal relationship with McCain. Bloggers prefer it when they know where people are coming from.
And the second quote, is from a review of a book called Go Directly to Jail: The Criminalization of Almost Everything.
McNab was a seafood importer who shipped undersized lobsters and lobster tails in opaque plastic bags instead of paper bags. These were trivial violations of a Honduran regulation – equivalent to a civil infraction, or at most, a misdemeanor. However, using creative lawyering, a government prosecutor used this misdemeanor offense as the basis for the violation of the Lacey Act, which is a felony. The prosecutor then used the Lacey Act charge as a basis to stack on smuggling and money laundering counts. You got that?
McNab was guilty of smuggling since he shipped lobster tails in bags that you can see through, instead of shipping them through bags that would frustrate visual inspection. He was guilty of money laundering since he paid a crew on his ship to “smuggle the tails.” Although it turned out that the Honduran regulation was improperly enacted and thus unenforceable, the government did not relent. A honest businessman lost his property and his freedom: McNab is serving 8-years in prison.
Okay, so what do the tribulations of a seafood importer have to do with the right of bloggers to blog what they damn well please? Well, what interests me is the political process involved in both matters. How the hell do the laws and the processes that got poor Mr McNab nabbed get put in place in the first place? The phrase “not aimed at” is the point of this posting. It may well be that the McCain/Feingold act is “not aimed” at bloggers, but the point being made is that, aimed or not, some other regulator will be able to pick it up and so aim it, and in fact may even have some kind of legal obligation to aim it thus.
I do not think it is an exaggeration to say that there is now a crisis of excessive lawmaking in the West generally, and in the Anglo-Saxon world in particular. It is not that our political class is hell bent on tyrranny, impure and simple. It is more that they have become legislative entrepreneurs, so to speak. And just as a businessman who is delighted to make a fast buck selling mobile phones does not bother himself about the grief inflicted by railway travellers with mobiles on other railway travellers, so too, lawmakers who are “aiming” at one particular group of alleged wrongdoers have a tendency to neglect what you might call legislative collateral damage. The laws pile up, and the other legislators, the ones who you would hope would be sitting there solemnly trying to limit that collateral damage, neglect that duty, because they are too busy hustling through other little laws of their own, aimed at other preferred clutches of alleged wrongdoers. Laws go straight from legislative entrepreneurs to government regulators, without no intervening process of scrutiny that is worthy of that adjective.
Which means that government regulators are then tempted to mutate into what you might call regulatory entrepreurs. They cannot possibly enforce all their laws, rules and regulations. There are not enough hours in the history of universe for that to happen. So, just like the legislative entrepreneurs, they also lose sight of the big picture (it having become too big to bother with) and decide for themselves which regulations to take seriously. How? Any way they please. In accordance with what rules? Whichever ones they decide to go with.
Add a dash of right wing fervour (a point which Go Directly to Jail apparently brings out very strongly) about crime being very, very bad and having to be fought with implacable ferocity, and to hell with those silly old legal safeguards, and you end up with a kind of anti-lottery instead of a government. Any person, at any moment, is liable to be picked on and turned into a criminal. At any moment, in the words of those British National Lottery adverts, it could be you-ou!!! And everyone is obliged to enter this one.
Being a libertarian, I was never very inclined to think of government as being intelligent. My prejudice is that it is mostly evil, most of the time, and the only question is: in what particular way is it evil at this particular time? Right now, I find myself wanting to describe government as evil because of a process of distributed stupidity, a phrase I adapt from the phrase distributed intelligence, which is how we bloggers like to think of how we work and of what we produce.
And I do indeed hope that the blogosphere will have a lot to contribute towards unscrambling the mess that is distributed governmental stupidity.
The problem is basically one of scale and of incentives. We now live in a world where legislators get their brownie points by forcing through ill-considered and half-baked laws, which do not do much to solve their original problem, but which create a miasma of other problems and subjecting the McNabs of this world to undeserved prison sentences. Other legislators could spend their time denouncing this torrent of ill-considered legislation, but fear that this would make them look lazy and negative, and get them minus brownie points. So, they legislate crazily too.
What I would like would be a world in which a legislative entrepreneur who is thinking of thrashing out yet another of these stupid laws, just so he can get his name in legal lights, would pause, and, you know, consider, for fear of a shitstorm from the blogosphere, and thus eventually, after a month or two, from the regular old media that he has actually heard of. I want a world where other potential legislative entrepreneurs, instead read the blogs to see more McCain/Feingold horrors coming down the legislative tube, and try to get their brownie points by being praised by bloggers not for making one of these laws, but for unmaking a few.
I would like a world in which the McNabs have a voice, before they are hit by these idiot laws and idiot regulators, and while, and for ever afterwards.
Well, I think and hope that we might be moving towards just such a world. The distributed stupidity of government is now, I would like to think, being challenged by the distributed intelligence of the rest of us. Previously, we masses did not have the means to distribute our intelligence, so to speak. Now, we do.
This McCain/Feingold thing looks like it could be the next Trent Lott/Dan Rather/Eason Jordan blogswarm furore-story. Like many bloggers, I am uneasy about living in a world where the blogosphere measures its success by how many high profile careers it wrecks. But how many potentially bad (McNab-nabbing) laws it stomps on? That I could live with far more happily.
I hereby propose the verb “McNab”, to describe the process of innocent people being seriously screwed by crazy laws. As in: I’ve been McNabbed. Or maybe: I’m a McNab. By the sound of it, the original McNab deserves some good fame to set besides his horrendously bad treatment at the hands of the American criminal justice system.