Thursday, September 06, 2007

Blogs are Media Exempted From FEC Rules

Good news, this from the FEC:
In Matter Under Review (MUR) 5928, the Commission determined that Kos Media, L.L.C., which operates the website DailyKos, did not violate the Federal Election Campaign Act. The Commission rejected allegations that the site should be regulated as a political committee because it charges a fee to place advertising on its website and it provides “a gift of free advertising and candidate media services” by posting blog entries that support candidates. The Commission determined that the website falls squarely within the media exemption and is therefore not subject to federal regulation under the Act.

Since 1974, media activity has been explicitly exempted from federal campaign finance regulation. In March 2006, the Commission made clear that this exemption extends to online media publications and that “costs incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station. . . , Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication,” are not a contribution or expenditure unless the facility is owned by a political party, committee, or candidate. With respect to MUR 5928, the FEC found that Kos Media meets the definition of a media entity and that the activity described in the complaint falls within the media exemption. Thus, activity on the DailyKos website does not constitute a contribution or expenditure that would trigger political committee status. The Commission therefore found no reason to believe Kos Media,, or Markos Moulitsas Zuniga violated federal campaign finance law.
The Commission also resolved another matter involving blogs and volunteer activity.
In MUR 5853, the Commission rejected allegations that Michael L. Grace made unreported expenditures when he leased space on a computer server to create a “blog” which advocated the defeat of Representative Mary Bono in the November 2006 election. The Commission also rejected allegations that Grace coordinated these expenditures with Bono’s opponent in the race, David Roth, and found that no in-kind contributions to Roth’s campaign resulted from Grace’s blogging activity. The Commission also found that the respondent did not fraudulently misrepresent himself in violation of 2U.S.C. § 441h.

The Act exempts from regulation volunteer activity by individuals. In the FEC’s Internet regulations, the Commission clarified that an individual’s use, without compensation, of equipment and personal services for blogging, creating, or hosting a website for the purpose of influencing a Federal election are not expenditures subject to the restrictions of campaign finance law. Even if there were some costs or value associated with Mr. Grace’s blog, these costs are exempt from Commission regulations.
All of this, of course makes sense. In many respects, the larger political blogs, like DailyKos and RedState are just as much a media company as say CNN. The fact that their coverage is biased in a particular direction makes them not unlike most media outlets, only a bit more above board than the so-called "indedpendent journalism." By the same token, blogging by individuals should be treated in teh same respect as walking down to the local parker and speaking. It cannot and should not be regulated.

Bob Bauer comments here, taking on the issue of why DailyKos and Grace had to go through this process only to be exonerated: Adam Bonin made the case for his client thoroughly, and the odds—the merits—were soli
dly in his favor. In posting the results, Bonin raises the more interesting question—how it is that bloggers should be "put through" this trial-by-accusation. Attacks like the one he fended off are, he rightly says, time-consuming and it is unpleasant by to "live under the threat of FEC sanction." The law on which Kos relied, embedded in rules approved by the FEC in 2005, is "pretty damn clear," enough so that it strikes Bonin as disgraceful that Kos should have been put to the trouble and expense of a defense.

The answer to this is that Adam is both right and wrong: rightly aggrieved by the experience, and mistaken, I believe, to imagine that any port is safe within the vast expanse of the regulatory regime. The FEC applied the standards in this instance without further investigation: it might have chosen differently, and those same standards would not have precluded this further, exploratory surgery. Live by the media exemption, or any act of regulatory grace, and you may not necessarily die by it, but for sure, you will live within its shadow. Someone, at some time, will call on you to show that you are entitled to the benefits bestowed on you. And it will not be the only time that this demonstration will be called for....

The law on this may be "pretty damn clear," but the emphasis ought to remain on the "pretty." It is not clear that the law is accurately summarized, as Adam does, as protecting "online grassroots political activity." It protects a fair amount of it, but only conditionally, and the question of whether it was conducted as required—not to mention the special case, or the next generation of innovations—can always be brought before the agency.
Like most regulators, the FEC has to act in a sort of gray area, trying to apply a law written prior to some innovation, to an innovation not comtemplated by the law during a period in which Congress has not acted in keeping up with innovations. No one could have predicted the power and explosive growth of the blogging medium in 2001 when McCain Feingold was being debated or in 1974 when Al Gore was still working on inventing the internet.

Each time the FEC acts, it must do so with the knowledge that the public, Congress or, more likely, both are going to hate their action. But they must act and fortunately, in this case they did so rightly.

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