Original URL: http://www.theregister.co.uk/2007/09/12/rec_blogger_ruling/

Political blogs escape federal scrutiny

Free to blather on without restrictions

By Kevin Fayle

Posted in Law, 12th September 2007 21:55 GMT

The US presidential race has, maddeningly, already been moving along at full throttle for months, and political bloggers look poised to play an important role in the selection of the new commander in chief.

Now, thanks to two decisions handed down last week by the Federal Election Commission, spewing partisan nonsense in order to influence elections just became even easier than ever before.

In one of those decisions, the FEC applied the traditional press exception from its reporting and registration requirements to the majority of bloggers, thus lessening the possibility that blogs not owned by a political party, political committee or candidate would have to register as a political committee or report contributions and expenditures. Even if blogs operate for profit and specifically advocate for or against a particular federal candidate, they qualify for the exemption provided that they engage in news reporting and commentary, according to the FEC's ruling.

In another decision, the FEC determined that a satirical blog purporting to be Republican Congresswoman Mary Bono's personal website (yes, that's the late Sonny Bono's wife) did not constitute an unreported contribution to David Roth (no, that's not David Lee Roth of Van Halen), her opponent in last year's congressional campaign. In that matter, the FEC ruled that the blog was an Internet activity specifically exempted from election laws by a recently enacted FEC rule.

Pro Bono, Anti Bono

The controversies arose after the FEC received complaints about two left-leaning blogs from two right-leaning complainants. The first complaint, brought on behalf of the lampooned Congresswoman Bono, alleged that the blog author, Michael Grace, had coordinated with Roth in creating and maintaining the blog, making the blog a campaign expenditure subject to reporting requirements. The complaint also accused Grace of fraudulently misrepresenting campaign authority by posing as Congresswoman Bono and creating the impression that Bono authored the blog herself.

The second complaint, brought by conservative blogger and independent IT security consultant John Bambenek, charged the popular leftist Daily Kos blog with acting as a political committee and failing to register or report expenditures with the FEC. The main thrust of the complaint was that, by offering free advertising and media exposure to Democratic political candidates with the express purpose of getting those candidates elected to federal office, Daily Kos became a political committee with the obligation to report its web-hosting expenditures and ad contributions.

The FEC didn't find much to agree with in either complaint. Regarding the Bono complaint, the FEC pointed out that Grace never received compensation for his efforts, he used free services to host and maintain the blog, and the evidence didn't conclusively show any collusion between Grace and Roth over the blog's creation or contents. Since Grace didn't spend any money on the blog, the FEC reasoned, there had not been an independent expenditure subject to reporting requirements.

The Commission also held that, even if there had been costs or value associated with Grace's blog, the Commission had specifically exempted this kind of uncompensated Internet activity from the definition of "expenditure." The use of equipment and personal services for maintaining a website, even if designed to influence an election, doesn't fall under the FEC's regulations if it isn't done for pay, the Commission decided.

Daily Kos, on the other hand, is done for pay. The FEC determined, however, that the media exemption applied such that the expenses associated with the site did not amount to contributions or expenditures under election law.

The media exemption provides that the costs associated with running a media operation are not contributions or expenditures in favor of a political candidate, as long as the operation at issue was acting as a legitimate media entity in performing the questioned activity. The FEC deemed that Daily Kos acts like the online equivalent of a newspaper or magazine by providing commentary and links to breaking news, thus its costs and activities did not amount to contributions or expenditures.

The fact that Daily Kos unabashedly advocates for the election of Democratic candidates did not deter the FEC from applying the media exemption. Just because a media entity includes biased or partisan news and commentary, the Commission stated, does not disqualify it from the press exception.

The real question is why did Bambenek, the conservative blogger, file the complaint in the first place? As a blogger himself, it seems counterproductive to bring down the weight of the FEC against Daily Kos.

Bambenek's complaint admitted that his suggestion of pulling bloggers under the auspices of the FEC carried some controversy, but he insisted on taking issue with the Daily Kos practice of supporting Democrats.

But surely, there must be some sites out there pushing for the election of Republicans that Bambenek would not want falling under the regulatory eye of the FEC. Perhaps the complaint was a tacit admission that the left-wing bloggers are having more of an impact than those on the right?

We'll know come November.

In the meantime, it's nice to see that Bambenek at least has a sense of humor about the whole thing. A poll on the front page of his blog, Part-Time Pundit, asks readers whether they believe that Daily Kos should be subject to the FEC.

Among the choice of responses, Bambenek give readers the option to request that he "[p]lease die in a fiery car crash".

He obviously wasn't kidding when he said his complaint was controversial.®