The Federal Election Commission gave Web loggers an early holiday gift last week when it issued a unanimous advisory opinion extending the so-called press exemption to people who disseminate news and commentary on the Internet.
The FEC, in a 5-0 vote, sided with bloggers, giving online commentators and news purveyors the same exemption as the mainstream media as it relates to campaign finance law.
The opinion was a victory for bloggers and online freedom-of-speech advocates and a setback for election reform groups that wanted to see the FEC or Congress exempt bloggers but under different auspices, out of fear that a ruling like the one the FEC made would open up a loophole in the campaign finance laws.
The FEC concluded that expenses for news stories, commentary and editorials made by Fired Up! America are encompassed by the press exemption, and therefore do not constitute federally regulated “expenditures” or “contributions,” even though Fired Up’s various Web sites advocate for the election or defeat of various federal candidates.
Fired Up is a self-identified liberal Web log formed jointly by former Sen. Jean Carnahan (D-Mo.), a former Capitol Hill staffer and a computer consultant. The site was unabashed in its query to the FEC regarding its intentions to “endorse, expressly advocate, and urge readers to donate funds to the election of Democratic candidates for federal, state and local office.”
Nonetheless, the FEC wrote in its advisory opinion that “an entity otherwise eligible for the press exemption would not lose its eligibility merely because of a lack of objectivity ... even if the news story, commentary, or editorial expressly advocates the election or defeat of a clearly identified candidate for Federal office.”
The agency determined that Fired Up’s Web sites are “both available to the general public and are the online equivalent of a newspaper, magazine, or other periodical publication” as described in the statute and FEC regulations.
In addition to its flagship site, Fired Up also runs state-specific sites in Maryland, Washington and Missouri, with plans to launch a dozen more in the coming year.
Federal campaign laws, most recently amended by the 2002 Bipartisan Campaign Reform Act, and FEC regulations define contributions and expenditures to include gifts, money or anything of value for the purpose of influencing a federal election. There is an exception, however, for costs covering news stories and commentary by TV, radio, newspaper and magazines or any other “periodical publication” other than those owned or controlled by a political party.
But BCRA supporters fear that party organizations will be able to take advantage of the exemption for bloggers by launching Web sites that appear to be independently controlled.
“We will watch to make sure such groups intending to use this exemption are not really full-time political communities whose purpose is to influence federal elections and not communicate,” said Democracy 21’s Fred Wertheimer.
“We just believe that attempting to apply the press exemption beyond normal, traditional press concepts is opening the wrong door at the wrong time,” Wertheimer said. “Most media in this country today, or most people who are treated as the press today, are not in the business of soliciting contributions for candidates. Now the FEC has held out the notion that that kind of partisan activity is still entitled to be treated as the press under campaign finance laws.”
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