The Reformers’ Trojan Horse


Krempasky earlier made reference to a possible concession by the “reformers” in campaign finance reform. He retracted a bit realizing “that the current regs accept some unspecified amount of use – as long as it doesn’t affect an employee’s normal workload.” The reformers know that and like the wording of the current regs allowing “occasional, isolated, and incidental” use of corporate facilities.

With respect, the reformers know they have a trojan horse on their hands that will, despite their denials, serve as a prophylactic to bloggers blogging from the office.

As I pointed out here, the “occasional, isolated, and incidental use of facilities”, 11 C.F.R. 114.9(a), means one hour per week or four hours per month.

“Nuh-uh,” say the reformers. To their denial, let me call bull.

The reformers premise their argument on the full text of the regulation.

As used in this paragraph, occasional, isolated, or incidental use generally means–
(i) When used by employees during working hours, an amount of activity during any particular work period which does not prevent the employee from completing the normal amount of work which that employee usually carries out during such work period; or
(ii) When used by stockholders other than employees during the working period, such use does not interfere with the corporation in carrying out its normal activities; but
(iii) Any such activity which does not exceed one hour per week or four hours per month, regardless of whether the activity is undertaken during or after normal working hours, shall be considered as occasional, isolated, or incidental use of the corporate facilities.

Well, here is why I say that is a trojan horse.

The reformers rely on 11 C.F.R. 114.9(a)(i), “When used by employees during working hours, an amount of activity during any particular work period which does not prevent the employee from completing the normal amount of work which that employee usually carries out during such work period.” But, to say that will protect bloggers is disingenuous at best.

You know and I know there are many do-gooder groups out there that love to file FEC complaints. Notice that that between (ii) and (iii) there is that little three letter word “but.” That “but” means “caveat.” 11 C.F.R. 114.9(a)(iii) is a “safe harbor.” As long as a blogger does not exceed one hour per week or four hours per month, they will be safe. But, what about two hours per week?

The reformers will tell you that as long as those two hours “[do] not prevent the employee from completing the normal amount of work which the employee usually carries out during such work period” the employee will be okay. Well, the next step then will be for the professional complaint filers, i.e. do-gooders a/k/a reformers, to speculate that the employer might just be cutting the employee slack on “the normal amount of work” because the employer agrees with the political views of the employee.

Not fair you say? Too big a leap? Well, consider this — blogs usually have time stamped posts. A complaint filer can easily see that a blogger has spent more than one hour a week blogging during normal business hours — thus reasonably probable that the blogger was blogging during work hours. The blogger then falls outside the safe harbor.

Even without the leap I might have made, if the blogger falls outside the safe harbor provision and a complaint is filed against the blogger, the burden will be on the blogger to show that (1) he was not prevented “from completing the normal amount of work” that he usually does during business hours and (2) will still most likely have to prove that his employer was not being lenient, which could get the business into trouble if it is a corporation.

For the blogger to answer this complaint, the blogger would need money to hire a lawyer. The blogger would probably also need a source of funds because his company would most likely fire him in an effort to show the company had no culpability for the blogger’s actions.

The reformers can say they are open to blogging from the office. But their written words give lie to that. Unless “occasional, isolated,and incidental” is changed to unlimited, as Toner posited, bloggers will face the reformers’ trojan horse and we will all be hurt because of it.

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Erick Erickson

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