Should Blogs Register As Political Committees?

I haven't forgotten that I promised another post about ePiracy, but this has been an unusually busy week. It may be another day or so before I can get to it.

However, in the meantime, there's lots going on in the world. On Tuesday, the U.S. Federal Election Commission (FEC) issued a press release with an important impact for American bloggers. The FEC reiterated an earlier stand with respect to bloggers and federal election law.

Among the Internet's most popular sites are the political blogs. According to Wikipedia, "Since 2002, blogs have gained increasing notice and coverage for their role in breaking, shaping, and spinning news stories."

Among the better known political blogs is the Daily Kos here, founded by Markos Moulitsas Zuniga on May 26, 2002. Zuniga's blog took its name from his first name, Markos. According to the site's statistics here, Daily Kos averages half a million visitors a day or 3.5 million visitors a week.

Daily Kos is a collaborative blog, meaning it offers posting privileges to a number of commentators.

The Daily Kos devotes itself to Democratic causes and politicians. In last year's mid-term elections, it raised over $1.4 million dollars for seventeen candidates. That activity has not gone unnoticed by the right. On July 23, 2007, a conservative blogger by the name of John C. A. Bambenek from Champaign, Illinois sent a letter to the Federal Election Commission filing a complaint and requesting an investigation of Daily Kos and Zuniga. Bambenek's letter stated:

It is my belief that this organization operates as a political committee under section 431(4) both for making expenditures and having contributions in excess for (sic) $1,000.

Reaction to Bambenek's complaint was swift--both from Daily Kos and the rest of the blogosphere.

Adam Bonin, an attorney, announced the complaint on Daily Kos on July 24th, here, calling Bamabenek "Wanker of the Year, Blogosphere Division." Bonin pointed to an opinion letter issued on November 18, 2005 by the Chairman of the Commission with respect to another "progressive" blog. The question posed at that time was whether a political blog could qualify "as a 'press entity' exempt from federal election law." That opinion letter here included the following:

The Commission has applied a two-step analysis to determine whether the press exemption applies. First, the Commission asks whether the entity engaging in the activity is a press entity as described by the Act [Federal Election Campaign Act of 1971] 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").

Another blog--Watching the Watchers--pointed out that: Although Daily Kos functions like a news site and operates independently of political candidates, parties and committees -- two criteria cited for the FEC's media exemption -- the site differs from most political blogs by aggressively raising money for specific candidates and PACs.

Even so, Eugene Volokh, professor of law at the UCLA School of Law and blogger at the Volokh Conspiracy said here: 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.

Even conservatives scorned Bambenek's complaint. Redstate's Mike Krempasky had this to say about it: This complaint is a sorry attempt to use government institutions to silence opponents...the stunt has zero chance of success.

Volokh and Krempasky were right. On Tuesday, the FEC issued its ruling (along with a second ruling not related to this matter). It said:

The Federal Election Commission announced today that it has unanimously resolved two complaints alleging that Internet blog activity is subject to Commission regulation, finding that the activity is exempt from regulation under the media or volunteer exemption...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...

So, once again, the integrity of freedom of speech in the blogosphere for Americans is protected.