Well, hold on. Because in a concurring opinion issued today, two FEC commissioners indicated a desire to put severe constraints on how sites like this one operate.
I'll explain why in detail, after the jump:
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. See First General Counsel's Report, MUR 5440 (CBS Broadcasting, Inc.) ("Even seemingly biased stories or commentary by a press entity can fall within the media exemption.")
For Commissioners Thomas and McDonald (both Democrats), however, the inquiry is a much more fact-specific one, that would go deeply into what the "major purpose" of the site is. Remember our continuing tussle with Reps. Shays and Meehan over whether bloggers might be forced to file as political committees? We are right to be scared, as Thomas and McDonald explain:
The facts presented in this matter also raise the concern that Fired Up may cross over into political committee status. The Act defines a "political committee" as "any committee, club, association or other group of persons" that receives contributions "or makes expenditures aggregating in excess of $1,000 a calendar year." The terms "contribution" and "expenditure" are defined to reach funds given or paid "for the purpose of influencing any election for Federal office." On its face, this term "political committee" would even reach a law firm that makes a single $2,000 contribution to a federal candidate. In construing the statutory definition of "political committee," however, the Supreme Court has held the term only includes an organization "under the control of a candidate or the major purpose of which is the nomination or election of a candidate." Later, in FEC v. MCFL, the Court affirmed this limiting construction of the term "political committee" when it clarified that "should MCFL's independent spending become so extensive that the organization's major purpose may be regarded as campaign activity, the [organization] would be classified as a political committee. . . .As such, it would automatically be subject to the obligations and restrictions applicable to those groups whose primary objective is to influence political campaigns."(Emphasis mine). And what might reveal a site's "major purpose" as being campaign activity and not press activity? These two Commissioner would look at facts like these:
Fired Up indicated that it "intends to endorse, expressly advocate, and urge readers to donate funds to the election of Democratic candidates for federal, state, and local office." ... Moreover, the request states that its web site "contains links to Democratic and progressive organizations." Id. (emphasis added). The request indicates that Fired Up "intends aggressively to support progressive candidates and causes at all levels." Id. at 7. Indeed, the launch of Fired Up and its role in Democratic politics has been described this way:
[Jean] Carnahan is returning to politics--not on the ballot but on the Internet. She and longtime Democratic operative Roy Temple have launched a new Web initiative called www.firedupmissouri.com. Carnahan said the site would include an interactive blog of Democratic commentary (former Sen. Thomas F. Eagleton is among the first featured pundits). The site is also seeking to sign up 10,000 Democratic loyalists who are "fired up and fighting back," she added.St. Louis Post-Dispatch (March 7, 2005)(emphasis added). At this point, though, we can see no indication from Fired Up's activities that its major purpose has been other than to conduct the dissemination of news and commentary over the Internet.
All those italics are theirs, not mine. In other words, these Commissioners have indicated that they believe a site that gets too partisan will have to file with the FEC. Fired Up isn't there yet, they indicate, but it could be. As could others -- like this one, clearly.
For those who were wondering why we're so virulently opposed to H.R. 4194, the Shays-Meehan internet bill, you see it here. People engaged in online politics should not have to worry about having to submit themselves to a fact-intensive "major purpose" test to determine if their website has to register and file as a political committee. Arguably, this opinion provides powerful ammunition for those who prefer H.R. 1606, which would provide more of a blanket exemption to speech online.
This concurrence also heightens the need to get behind Reps. Brad Miller and John Conyers on H.R. 4389, which would make clear Congress' stong desire to protect Internet speech broadly under the press exception.
Finally, it suggests we need to be vigilant when it comes to current vacancies on the FEC. Reps. Shays and Meehan and Sens. McCain and Feingold have urged the appointment of commissioners who could turn the FEC into "a real enforcement agency", suggesting the reappointment of Commissioner Thomas specifically, so when the hearings do come up, it's worth asking potential FEC commissioners -- what kind of enforcement should bloggers be subject to?
I'm happy to try and answer any questions. Congress comes back from recess next week, and they may well attempt something before year's end.