Firing Up on Kos

Hat Tip to Allison at Skepticseye

It seems that Fired Up! has submitted an advisory opinion request to the FEC asking for a ruling on whether a blog is entitled to the media exemption. Given that the AOR was prepared by Bob Bauer's shop at Perkins Coie, Fired Up and Perkins Coie have either made a pretty bad tactical error in submitting this AOR or a brilliant strategic move in preparation for litigation.

The one commissioner whose vote they were almost sure to get, that of Commissioner Smith, is no longer there. Of course, the FEC would still have to have 4 votes to pass the AO, so the five remaining commissioners can still take action. So let us do a quick nose count.

Commissioners Mason and Toner (the remaining Republicans) are likely to take the stance that bloggers should get the media exemption. That's two. Commissioner Thomas is not likely to support Fired Up for a media exemption for bloggers despite their liberal leanings. That leaves Commissioners Weintrab and McDonald. For me Commissioner McDonald is a mystery. I simply don't have enough to make more than an educated guess in favor of regulating the blogs since he tends to favor more regulation than not. Commissioner Weintraub could go either way depending on the effectiveness of the argument. But even with Commissioner Weintraub, Fired Up is one vote shy of its exemption without Commissioner Smith. Thus you end up with a 3-2 vote, one vote shy of the necessary four needed for any Commission action.

So in that respect you have a bad tactical move. But Comissioner Smith had announced his retirement some time ago and this was known to Bauer & Co. By submitting the AOR, Fired Up may be laying the groundwork for an either no action or a rejection of their position. Thus as an aggreived party, they could then sue in District Court seeking a judicial degree that the FEC is unable to provide or at least for the FEC to decide. If that is the intetion, well done to Perkins Coie.

Regardless of what happens, it looks like we will eventually get a decision about bloggers media exemption. As a blogger, I support the exemption, not because I think I am on par with other media outlets, but because I think people have the right to say what they want about candidates--even if they do so anonymously.