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Bloggers and Campaign Finance Law:

John Bambenek (BlogCritics) has filed a complaint with the Federal Elections Commission, alleging that DailyKos is a "political committee" that is subject to various federal elections law registration and reporting requirements with which it hasn't complied. After all, Bambenek argues, the DailyKos itself says that it is "about electing Democrats," and is therefore a political committee.

Fortunately, even partisan blogs are not covered by federal election law, because — as the FEC ruled in November 2005 — they are covered under the "press exception" to campaign finance law. The ruling, which came in response to a request by Fired Up, a Missouri democratic activist blog, concluded (citations omitted, some paragraph breaks added):

The Act and Commission regulations define the terms "contribution" and "expenditure" to include any gift of money or "anything of value" for the purpose of influencing a Federal election. However, there is an exception for "any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication ... unless the facility is owned or controlled by any political party, political committee, or candidate[.]" This exclusion is known as the "press exception."

The Commission has applied a two-step analysis to determine whether the press exception applies. First, the Commission asks whether the entity engaging in the activity is a press entity as described by the Act and Commission regulations. Second, in determining the scope of the exception, the Commission considers: (1) whether the press entity is owned or controlled by a political party, political committee, or candidate; and (2) whether the press entity is acting as a press entity in conducting the activity at issue (i.e., whether the entity is acting in its "legitimate press function"). Two considerations in applying this analysis include whether the entity's materials are available to the general public and are comparable in form to those ordinarily issued by the entity....

Fired Up qualifies as a press entity. Its websites are both available to the general public and are the online equivalent of a newspaper, magazine, or other periodical publication as described in the Act and Commission regulations.

An examination of Fired Up's websites reveals that a primary function of the websites is to provide news and information to readers through Fired Up's commentary on, quotes from, summaries of, and hyperlinks to news articles appearing on other entities' websites and through Fired Up's original reporting. Fired Up retains editorial control over the content displayed on its websites, much as newspaper or magazine editors determine which news stories, commentaries, and editorials appear in their own publications. Roy Temple, acting on behalf of Fired Up, not only produces much of the content but also exercises day-to-day control over which stories are featured. Reader comments appearing on Fired Up's websites are similar to letters to the editor and do not alter the basic function of Fired Up.

According to the House report on the 1974 amendments to the Act, the press exception made plain Congress's intent that the Act would not "limit or burden in any way the first amendment freedoms of the press ..." and would assure "the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns." Consistent with this intent, the Commission has already expressly extended the press exception to qualified activities that appear on the Internet.... Thus, Fired Up is a press entity and satisfies the first step of the press exception test....

Fired Up is a for-profit LLC and is not owned or controlled by any political party, political committee, or candidate. Given that Fired Up's operation of its websites is at the core of its activities as a press entity, its provision of news stories, commentary, and editorials on its websites falls within Fired Up's legitimate press function. Thus, because Fired Up is a press entity, and neither it nor its websites are owned or controlled by any political party, political committee, or candidate, the costs Fired Up incurs in covering or carrying a news story, commentary, or editorial on its websites are exempt from the definitions of "contribution" and "expenditure."

The Commission notes that an entity otherwise eligible for the press exception would not lose its eligibility merely because of a lack of objectivity in a news story, commentary, or editorial, even if the news story, commentary, or editorial expressly advocates the election or defeat of a clearly identified candidate for Federal office....

The same, I think, would be said about DailyKos and lots of other political blogs (with some exceptions, such as blogs that are run directly by a political party or candidate).

There is much to criticize in modern federal campaign finance law; and it may well be that the press exception should be even broader than it is — though keep in mind that broadening the exception, or repealing the law altogether, would interfere with disclosure requirements (which even many critics of contribution and spending limits support) and not just spending limits.

Nonetheless, the press exception as the FEC has rightly interpreted it is broad enough to cover blogs, even highly partisan blogs that aim to elect Democrats, just as it covers partisan magazines such as the National Review or the Nation.

Note also this defense this morning of DailyKos by David Freddoso (the Corner, National Review), comments to the FEC urging regulation of political blogs by Democracy 21, the Campaign Legal Center, and the Center for Responsive Politics, a concurring opinion by two FEC commissioners that seems to call for a somewhat narrower view of the "press exception" than the majority would adopt, and this letter supporting the Fired Up decision from Duncan Black (Atrios), Markos Moulitsas Zuniga (DailyKos) and Matt Stoller (MyDD).

Justin (mail):
"The point here is that Kos directly advocates election of Democrats. Well, good for him. None of this is an argument for regulating Kos, but rather an argument for abolishing the silly campaign finance regime that that the Kos-krazies and their ilk have pushed on us for a generation now. Why should the federal government get involved at all if I'm advocating a particular candidate, or encouraging others to donate or vote in a particular way?"

Okay, if this is a defense of DailyKos, I think Markos would prefer to defend himself instead. While it isn't a support of Babeneck's actions, it's a defense against the actions ONLY AS TO THE ACCEPTABILITY OF CFR AT ALL. It has nothing to do with a press exception, nor does it take a position that DailyKos or Markos would personally take at all, even, I suspect, if threatened with personal civil or criminal liability.
7.24.2007 2:42pm
Randy R. (mail):
And of course, Michelle Malkin isn't in the business of electing Republicans?

If the right wants this type of warfare, they better be prepared when the lefties start filing complaints against them.

Dont' we have better things to do than try to stifle free speech? Like, maybe, end the war? Stop global warming? Or teach preachers that they shouldn't solicit from prostitutes?
7.24.2007 2:49pm
Lally (mail) (www):
I am a grateful and loyal reader of Volokh, but have never commented. I think that this post will serve as a good way for me to start, however.

John Bambenek and I are former employees of the Daily Illini at the University of Illinois at Urbana-Champaign, where both he I were weekly columnists. He is, as you might be well aware following this DailyKos business, what I consider an extreme religious and right wing conservative, and also quite obviously fond of filing complaints (as he did when he took an ethics test as an employee of the University and was asked to re-take the exam, and proceeded to file a complaint about University ethics standards). Though I did not know about this FEC complaint before I read it on Volokh, this is in line with his causes (which otherwise include campaigning against the HPV vaccine and gay sex and the like).

As mentioned, no one would expect him to file a complaint again Malkin, or even a legitimately questionable conservative organization, formal or informal. However, this speaks to exactly what type of conservative Bambenek is, and those like him, and that is that they behave in a blindly, but more importantly perniciously, partisan fashion to an extent which makes me at best uncomfortable and at worst disgusted. But on the issue, I'm glad that this blog (certainly not a liberal Kos-esque blog by any stretch), a legal and academic one in addition to being partly conservative, agrees that blogs fall under the umbrella of the press exception. They rightly should, considering that even at Kos we are dealing with pundits and intellectuals, not campaign managers or PACs, as blurred as the line may be at times. Even Bambenek runs a blog (Part Time Pundit) which he uses, I have no doubt, to help himself and others he supports be elected. As a columnist at the Daily Illini he had the same right.
7.24.2007 3:38pm
Bretzky (mail):

Fortunately, even partisan blogs are not covered by federal election law, because -- as the FEC ruled in November 2005 -- they are covered under the "press exception" to campaign finance law.

Too bad they can't be covered under the "Congress shall make no law...abridging the freedom of speech...or the right of the people to...petition the Government for a redress of grievances" clause.
7.24.2007 3:38pm
Adam B. (www):
Eugene: Thanks for the support. This is a settled area of law, and the complaint (if filed) is frivolous. Folks who want to learn more can read my piece on DailyKos about the governing law.
7.24.2007 4:09pm
David M. Nieporent (www):
Justin, you make Freddoso's point for him: CFR is about censoring other people.
7.24.2007 4:45pm
Gaius Obvious (mail):
The complaint against Kos is not in the written word, but in the organized activities that contribute in-kind to Democrats' political expenditures such as YearlyKos and Kos's paid "consulting" work for Democrats among other activities. No one is suggesting that any written word be censored, but why should candidates receiving such in-kind contributions not have to declare them in their FEC filings simply because they come from a blog?
7.24.2007 4:54pm
Lally (mail) (www):
Gaius-

But the complaint alleges that Kos advertises for candidates on the blog and that, if paid for, this would exceed the $1000 limit. That is about the written word, but moreover, it's about what the blog does (write about electing democrats) more than it is about YearlyKos or individual consulting. Those are not done "on" the blog, so to speak, whereas "advertising" by writing about them is, and that is what Bambenek says in the complaint.
7.24.2007 5:04pm
Adam B. (www):
YearlyKos is run by a separate 501(c)(4) that Markos has no role in at all; it's all volunteers.

Markos hasn't done any paid consulting for work candidates in years; if he had, the candidates would certainly have to disclose it in their expenditure reports.

But an editorial in support of a candidate is no more an "in-kind contribution" whether it appears on DailyKos.com, the New York Post or the Sean Hannity radio program.
7.24.2007 5:06pm
Ronald D. Coleman (mail) (www):
What a rat's nest. Yes, we all -- well, all but the (previous) Supreme Court -- recognize that the written word is exactly what should not be regulated under CFR. But notwithstanding separate corporate bodies, it is inevitable that "advocacy" wrought large will flow from written-word-based "communities" such as DailyKos, making these distinctions increasingly questionable.

The whole thing should be trashed. We will never know if CFR makes matters worse, but we do know that, besides Nader, no national candidate has come out of this system since forever who was not a very wealthy person, or the marionette of very wealthy organizations and coalitions. CFR is just a game to be rigged and gives the unhealthy illusion, like the "Fairness Doctrine," of a level playing field, where -- as n the rest of life -- there is no such thing.
7.24.2007 5:57pm
tree hugging sister (mail) (www):
(Well, this will certainly wreak havoc on our plans to use the Swilling to launch Bingley's campaign for the New Jersey governorship, once he clears up that...um...other teensy misstep.)
7.24.2007 6:20pm
Lin B.:
...comments to the FEC urging regulation of political blogs by Democracy 21, the Campaign Legal Center, and the Center for Responsive Politics, a concurring opinion by two FEC commissioners that seems to call for a somewhat narrower view of the "press exception" than the majority would adopt....


I find it amusing that those advocating regulation of political blogs in the FiredUp case are the same left wing folks with whom Kos would normally align.

Wonder if he realizes it?
7.24.2007 6:23pm
Mark Field (mail):

I find it amusing that those advocating regulation of political blogs in the FiredUp case are the same left wing folks with whom Kos would normally align.

Wonder if he realizes it?


Since he submitted a letter supporting the decision (linked in the post), I'm guessing "yes".
7.24.2007 7:58pm
Dave N (mail):
The theory behind CFR is that politics are corrupt so we must heavily regulate it. In Buckley v. Valeo, the Supreme Court upheld the post-Watergate reforms that restricted political speech. McCain-Feingold was more of the same.

Frankly, in an internet era, my suggestion is that there be no limitations on either financing and spending, but that candidates be required to report electronically all money received within some extremely short period--even 48 hours may be overly long for contributions above a certain size ($1000, perhaps).

If George Soros wants to back Joe Liberal with millions of dollars, then everyone will know that Joe Liberal is deeply in George Soros' pocket.

If Richard Mellon Scaife wants to back John Conservative with millions of dollars, then everyone will know that John Conservative is deeply in Scaife's pocket.

If a candidate failed to report a large contribution within the very narrow less-than-48 hour window, then the candidate would forfeit office if elected and subject to hefty personal fines regardless of the election outcome.

Advocacy groups would be required to list their contributions and contributors as well--otherwise a million dollars from the "Committee to Make America Great" could mask who was really behind the money.

I am sure my system has problems--but the current system has taken a back seat to the First Amendment, More's the pity.

And while I have no love for DailyKos, they deserve to win this one. I want to win a war of ideas--not have ideas muffled by officious bureaucrats.
7.24.2007 8:30pm
Dave N (mail):
Oh, I also know that there is a wiff of hypocrisy. Some who are strongly pro-Kos on this issue want to shut down talk radio, beacuse it is a "conservative" medium. Others are anti-Kos on this but see nothing wrong with Rush Limbaugh or Sean Hannity.

Personally, I want ideas to flourish--even ideas with which I vehemently disagree.
7.24.2007 8:34pm
Randy R. (mail):
" This is in line with his [John Bambanek's] causes (which otherwise include campaigning against the HPV vaccine and gay sex and the like).

Well, aside from the fact that I'm sure he makes for a lovely dinner companion, if he is true to form, he is likely hiring prostitutes for sex, or is gay himself.

Probably both. And when he's found out, he'll blame everyone but himself for having 'fallen.'
7.24.2007 8:50pm
Justin (mail):
David,

My point was only that EV mischaracterized Fredoso's point, not whether or not its right on the merits, a point which cannot be made in either one paragraph or one short blog comment, because of the many competing factors that one needs to consider in dealing with the issue.
7.24.2007 8:58pm
John Bambenek (mail) (www):
Bambenek files a complaint against a liberal website? He must hire prostitutes and is homosexual! How quaint.
7.24.2007 11:10pm
Randy R. (mail):
Anyone who is really concerned about the sex lives of others has a problem with their own sex life. It's basic psychology.

And we have often seen from Christianists, men who rail on about gays have often proven to be gay themselves.
7.24.2007 11:20pm
Randy R. (mail):
Dave: "Oh, I also know that there is a wiff of hypocrisy. Some who are strongly pro-Kos on this issue want to shut down talk radio, beacuse it is a "conservative" medium."

But there is a difference. The radio waves are owned by the people, and licensed to owners. And the owners are required to abide by rules of fair use. So if a radio station is too partisan, it violates those rules.

There are no such rules governing our press, which can be as partisan as it wishes.
7.24.2007 11:26pm
Gaius Obvious (mail):
There are no such rules governing our press, which can be as partisan as it wishes.

Yes there is. It's called the "McCain--Feingold Act", Pub.L. 107-155.
7.24.2007 11:46pm
Randy R. (mail):
Oops. Stand corrected.
7.25.2007 12:26am
Dave N (mail):
RandyR,

Actually, my understanding is that while the airwaves are public, the radio talkers are just as much covered by the "press" exception (even with a "Fairness Doctrine")under FCC regulations as Kos and the others are covered by the "press" exception under FEC guidelines.

Oh, and refering to Christians as Christianists shows a profound lack of respect for people of faith--but I suspect you already knew that and were trying to be provocative.

Even though I consider myself a Republican, I always thought calling the Democratic Party the "Democrat Party" was lowbrow and a bit stupid. My rule is to call people what they want to be called and not try to be clever and call them something else as a way of being contemptuous--that is just a matter of common courtesy and respect.
7.25.2007 1:23am
Randy R. (mail):
Dave: "Oh, and refering to Christians as Christianists shows a profound lack of respect for people of faith--but I suspect you already knew that and were trying to be provocative. "

I do have a respect for people of faith, including Christians. I have no respect for an entirely different breed called Christianists.

"My rule is to call people what they want to be called and not try to be clever and call them something else as a way of being contemptuous--that is just a matter of common courtesy and respect."

Generally speaking, and excellent rule which I agree with. But I must disagree at some point. A person who spouts bigots comments may call himself whatever he likes, but I will call him a racist. (And I don't do so lightly, or at least I try not to!) A person who hate gays may call himself whatever he likes, but he's still a bigot. And a person who calls himself a Christian but wants to regulate everyone else's life to conform to his religious views is a Christianist.

I guess the point is that I'm not calling all Christians Christianists, and if I came across that way, I apologize. I wouldn't make disparaging comments about Republicans in general, but I certainly do make them about particular people who call themselves Republicans, because we shouldn't tar everyone simply because a few spoil the punch.

And so yes, you can have opinions about gays, and even unfavorable ones -- I don't particularly care. But when someone uses the Bible as a weapon against us, and to deny us our rights, then you cross the line and become a Christianist.

One easy way to identify a Christianist or a bigot is their use of the word homosexual, when the term we use for ourselves is gay or lesbian. They therefore are violating your excellent rule, so I have no problem calling them as I see them either.
7.25.2007 2:07am
Dave N (mail):
RandyR,

Thanks for the clarification. I misunderstood your point. I have no use of bigots or racists either--no matter what they call themselves.
7.25.2007 2:33am
abb3w:
Randy R: One easy way to identify a Christianist or a bigot is their use of the word homosexual, when the term we use for ourselves is gay or lesbian. They therefore are violating your excellent rule, so I have no problem calling them as I see them either.

Mmm... sorry; "Homos", I will stipulate is offensive, but "homosexuals"? No, I don't buy that, unless the context is such that only one gender is in question. The only other term that I know of that covers both males and females who prefer same-sex versus opposite-sex pairings for prurient activities is "gay", and I've personally been snarled at by (and apologized to) a lesbian feminist over that on the grounds that the term is "still patriarchially oriented". If you can suggest a better, feel free.

On the other hand, I(AmNotALinguist) think "Christianist" looks to be a linguistically respectable portmanteau construction from "Christian supremacist"; as such, I'd consider it neither more nor less offensive than the full phrase.
7.25.2007 11:41am