FEC: A New Internet Case Is Brewing

(From the diaries -- kos)

[Remember me?  To get back up to speed, here's the last update or two.]  

Roy Temple's FiredUp group of websites has chosen not to wait for the FEC's final rules on political activity on the Internet, and has instead filed a direct challenge to the Commissioners to show their cards on activist websites.

Here's the deal: under the FEC's rules, you can request an advisory opinion from the Commission for guidance on how some particular regulation will apply to your campaign or organization going forward.  The FEC has 60 days to respond, and its ruling "provides legal protection to the requester and to any person involved in a specific activity 'indistinguishable in all its material aspects'".

So who is FiredUp, and what do they want?  Let's take a look:

• it is a for-profit, limited liability company.

• the website analyzes the news of the day, conducts original news reporting of its own, and publishes commentary on social, political and economic justice issues from the site's contributors, prominent progressive figures and others.

• they intend "to endorse, expressly advocate, and urge readers to donate funds to the election of Democratic candidates for federal, state and local office."

• they are neither owned nor controlled by any political party, political committee or candidate.  While site access is free, they intend to generate revenue via advertising, selling paraphenalia and other sources.

(Sound familiar?)

And what do they want?  The same thing we sought from the FEC:

Fired Up seeks affirmation that its publication of a network of progressive blogs across the country qualifies for the press exemption.

This request for an advisory opinion puts the issue squarely and plainly before the FEC -- can an ideologically-focused website that engages in news, editorial and commentary and advocacy receive the full protections of the First Amendment and not be forced to understand and comply with the byzantine regulations of campaign finance law?

Let's hope the Commissioners remain where they seemed to be headed last month, such as Commissioner Weintraub's comments to Salon:

"People like Red State [a prominent conservative blog] or Kos clearly fall under the media exemption," Democratic FEC commissioner Ellen Weintraub, seen by some observers as the potential swing vote, told Salon. "Practically all bloggers -- I can't think of one who wouldn't -- would fall under the media exemption or the volunteer. And that's if we do nothing, if we don't change the rules at all." . . .

Both Weintraub and the bloggers point out that corporations and labor unions could have enacted the [kooky Halliburton-blogger] scheme in 2004, but didn't. As Kos put it in his testimony: "The free market of ideas policed itself. It worked." It's counterproductive, they argue, to impose regulations in order to stop something that hasn't happened yet. "To say we have to restrict all sorts of conduct because we're afraid of what people might do in the future, even though they haven't done it in the past -- it's a little bit premature," Weintraub said.

There is a role for y'all to play in keeping sunlight on this issue and persuading the FEC to rule in FiredUp's favor.  More to come.

•  tips, recs, etc.

  It ain't over until it's over, and with Bradley Smith's resignation from the FEC, it may not be over for a while.  (It takes four votes to pass anything, and now they're down to five commissioners.)

  by Adam B on Wed Aug 24, 2005 at 10:21:08 AM PDT

  •  Interesting subject.

    And great post.

    By why is an advisory opinion needed?  This seems like a very clear winner as a free speech issue to me.  Wouldn't the better venue be a federal District Court?  So why not wait until some adverse regulatory action is taken (if ever)?  

    by cityduck on Wed Aug 24, 2005 at 11:31:59 AM PDT

    •  Why?

      My guess: this is a much less formal, less expensive and more immediate process than seeking a declaratory judgment action, and an adverse ruling could still be appealed through those channels.

      The other thing about a favorable ruling (rather than waiting for an unfavorable one) is that it gives websites clear notice as to what's allowed and permits them to make their 2005-06 plans without a cloud over their heads.

      by Adam B on Wed Aug 24, 2005 at 11:35:45 AM PDT

      •  Seems like a pretty small cloud.

        If anything, I would tend to think that non-action on the request due to the procedural issues you mention would create a greater cloud and might chill speech.  Right now, the conventional wisdom is there's no problem -- so who's being chilled?  And my guess is that lawyers in the field are telling the blogs "no problem."  So why take action that might risk creating confusion?  Seems like maybe a solution is being sought for a problem that doesn't exist.

        But, it's clearly a judgment call and this ain't my area of expertise.  I'm just curious.

        by cityduck on Wed Aug 24, 2005 at 11:40:08 AM PDT

        •  well

          IMHO, the entire rulemaking process was "a solution being sought for a problem that doesn't exist."

          The conventional wisdom is not shared by all.  Leaders of the pro-regulation community like Carol Darr and Don Simon believe that we're just moments away from the day when corporations like Halliburton start setting up blogs to unfairly influence the political debate.

          by Adam B on Wed Aug 24, 2005 at 11:43:18 AM PDT

          •  Free market of ideas?

            Halliburton should have the same right to set up a blog as anyone else.  It's not like the internet is a limited resource.  We're stronger if there are competing viewpoints doing battle.  My guess is that nothing Halliburton sets up would be able to compete in the marketplace with the real thing.

            by cityduck on Wed Aug 24, 2005 at 11:47:51 AM PDT

            •  Thanks for the 4.

              I think you are responsible for about half the positive feedback I've gotten on this site.  I just thought I'd take the opportunity to convey thanks.  Sadly, I suspect my posts are viewed as boring and my points as obscure by most (the notable exception being Armando who would apparently jump in to debate me if I said the sky was blue on a sunny day in Hawaii).  Someday I'm going to have to figure out how to give feedback so I can do my duty as a community member and reciprocate with some appreciation for your insightful posts.

              by cityduck on Wed Aug 24, 2005 at 12:14:50 PM PDT

            •  Well, yes.

              Unfortunately, the free market of ideas in politics has largely gone the way of the dinosaurs thanks to increased regulation in campaigns.

              by mkrempasky on Thu Aug 25, 2005 at 07:56:23 AM PDT

          •  Yeah, except Carol...

            ...seems to be of the deluded opinion that Halliburton is going to start its blog with BOP's Matt Stoller... :p

            by DC Pol Sci on Wed Aug 24, 2005 at 02:01:22 PM PDT

•  Very interesting

  Thanks.

  Do you have any further sense of what will happen? If they do indeed need 4 FEC members to agree with an advisory opinion (thus unanimous right now), I would assume that they can go beyond the 60-day reporting requirement? I would guess this is what you mean when you say that this won't be over for quite some time.

  Interesting and good work being done by FiredUp.

  by Hoyapaul on Wed Aug 24, 2005 at 10:40:49 AM PDT

  •  My understanding

    First off, they have five commissioners now, not just four.

    My understanding is that if they can't get 4/5 to agree to an opinion, then the FEC will issue a letter saying so -- and, of course, that suggests they don't have four votes to stop you and enforce regulations against you.  They can ask for brief extensions, but nothing too prolonged.

    FiredUp is represented by Marc Elias, the same attorney who testified on behalf of Kerry/Edwards at the hearings in June.  Smart guy.  Here's how his opening statement began:
    

    With all due respect, this is a rulemaking in search of a problem.  I can give you a litany of problems that I experienced through the campaign finance laws as the general counsel to the Kerry campaign.  We had problems with the rules regarding travel, the rules regarding coordination, the rules regarding soft money, the rules regarding appearing and attending at state party events, the rules regarding agency.  In fact, if you opened up 11 CFR, we could literally start at page 1 and end several hundred pages later with all of the issues we faced.

    We never faced a problem with the Internet.  It just wasn't a problem.  I'm not suggesting that in 10 years, there may not be a problem with Halliburton starting a blog or setting up some complicated Web scheme, but if that happened, this Commission would still be around.  Congress would still be around.  And at that point, Congress or the Commission would be in a position to address legislatively or by rulemaking the exact problem, the actual problem that is appearing rather than at this point the Commission guessing as to what, in two years or three years or five years or 10 years what problem may come to the forefront.

    by Adam B on Wed Aug 24, 2005 at 11:08:36 AM PDT

•  Plan B

  could the servers be moved to Canada or another country if they go bonkers?

  by jalapeno on Wed Aug 24, 2005 at 11:29:55 AM PDT

  •  well

    We have argued to the FEC that enforcement could become extremely problematic; still, as long as the money is flowing within the United States, there are possibilities.

    To me, it's anonymity, not foreign servers, that provide the real enforcement difficulty.

    by Adam B on Wed Aug 24, 2005 at 11:32:41 AM PDT

    •  Interesting question, then:

      Who is the biggest blogger left standing whose Real Name we do not know?  Markos has always been out, Glenn Reynolds is out, Atrios is out, Johnson at LGF is out, all the RedStaters are out, the Powerline guys are out, and so on.

      And as a corollary, are any remaining anonymous bloggers big enough to seriously influence political discourse?

      The hypothetical answer to that is that there may be a "hot" new anonymous blogger who springs up just in time for the election, who afterward is revealed as a tool of some sort.  This seems unlikely, given the surprisingly good bullshit detection ability I've seen across the blogs.  And anonymity isn't required to be a Tool:  Didn't the Thune bloggers use their real names?

      by folkbum on Wed Aug 24, 2005 at 12:15:53 PM PDT

      •  Good Question

        The folks behind PoliticsPA.com, PoliticsNH.com, etc., are anonymous.  That's my first guess.

        by Adam B on Wed Aug 24, 2005 at 12:28:10 PM PDT

        •  Of course

          There is no PoliticsWI, so I don't know much about that.  I know Bowers and crew uncovered the owners, if not the bloggers themselves, a few weeks back.

          I was going to add to the previous comment that the FEC probably wouldn't know to make the distinction anyway.

          by folkbum on Wed Aug 24, 2005 at 02:38:45 PM PDT

          •  Well . . .

            Chris "uncovered" that they were owned by "Publius Group", which wasn't a secret, but then made a lot of unwarranted leaps of logic (since retracted) to tie them to the VRWC.

            by Adam B on Wed Aug 24, 2005 at 02:52:04 PM PDT

      •  Billmon

        Billmon is the 'biggest' anonymous political blogger left that I can think of.

        Even so I'm sure the FEC could get his real name and employer if they really wanted to. After all there is a money trail behind his domain name and site hosting.

        Most anonymity on the internet won't stand up to anyone with a subpeona.

        by ces on Wed Aug 24, 2005 at 02:47:39 PM PDT

      •  you could become anonymous

        And quickly. In the compressed news cycle of a campaign, it wouldn't be hard to have influence - probably not influence on the public directly, but certainly on the media coverage of a race - even more so in a small market. The laziness of mainstream reporters creates that opportunity.

        by mkrempasky on Thu Aug 25, 2005 at 07:58:16 AM PDT

•  Well

  If Sinclair can be considered a media company, so should any partisan Democratic website.

  by jfern on Wed Aug 24, 2005 at 11:34:50 AM PDT

•  If I understand the FEC correctly

  If I understand the FEC's ruling process correctly, this could potentially be the FEC's opportunity to put the clamp down on bloggers. Even though Temple is trying to do this for good, it could ultimately backfire, right?

  by UpstateNYDem on Wed Aug 24, 2005 at 11:37:29 AM PDT

  •  Sure.

    A few thoughts:

    1.  It isn't an enforcement action -- it's preemptive.  In other words, FiredUp doesn't get "punished" if the ruling is bad; it just knows what it ought not do in the future (as well as websites doing the exact same things.)

    2.  If it's bad, better that we know sooner so that other steps for redress can be taken in time for 2006.

    by Adam B on Wed Aug 24, 2005 at 11:40:31 AM PDT

•  Not germain, but I liked this

  *Experts say that there are only seven or eight things dumber than an ant.

  George Gobel: I think I voted for six of 'em.
  

  by motriz on Wed Aug 24, 2005 at 11:44:19 AM PDT

•  Good idea on the FED Advisory Opinion...

  It's good to see FiredUp pursuing the FEC Adivsory Opinion. It is pretty obvious that the FEC has taken a favorable position towards blogs and I can't imagine them using this to "clamp down" on blogs. At least, everyone will know where the FEC stands.

  Anyway, I suggest people check out Temple's sites, www.firedupamerica.com and its affiliates.  Speaking as a Missouri resident, the www.firedupmissouri.com site has provided a voice for Democrats after a tough 2004 election.  It has been tremendously successful breaking news and providing a scoop that later gets reported in traditional media outlets.  

  Other affiliates exist at www.firedupmaryland.com and www.firedupwashington.com. I'm sure more states are on the way.

  Hopefully, Kos will add them to his blogroll.  We need some good in-state reporting...
  

  by kottmeyer on Wed Aug 24, 2005 at 01:50:25 PM PDT

•  Good idea on the FEC Advisory Opinion...

  [Corrected Links (and spelling) in this post...]

  It's good to see FiredUp pursuing the FEC Adivsory Opinion. It is pretty obvious that the FEC has taken a favorable position towards blogs and I can't imagine them using this to "clamp down" on blogs. At least, everyone will know where the FEC stands.

  Anyway, I suggest people check out Temple's sites, www.firedupamerica.com and its affiliates.  Speaking as a Missouri resident, the www.firedupmissouri.com site has provided a voice for Democrats after a tough 2004 election.  It has been tremendously successful breaking news and providing a scoop that later gets reported in traditional media outlets.  

  Other affiliates exist at www.firedupmaryland.com and www.firedupwashington.com. I'm sure more states are on the way.

  Hopefully, Kos will add them to his blogroll.  We need some good in-state reporting...
  

  by kottmeyer on Wed Aug 24, 2005 at 01:53:08 PM PDT