Today I filed an Federal Election Commission (FEC) complaint against Kos Media, LLC., better known as DailyKos.com. I allege that they operate as a political committee and are therefore subject to FEC rules.
But wait! you think. Didn't I just live through 2005 and 2006, and didn't the FEC do something to prevent this? Indeed, they did.
First, in late 2005, they issued an advisory opinion to the FiredUp sites which confirmed that a site exactly like this one qualified as a "press entity" exempt from federal election law. The reform groups argued before the FEC that "an organization whose stated purpose is to be the functional equivalent of a partisan campaign organization -- to elect Democratic candidates and to solicit contributions for such candidates -- does not qualify for the press exemption." The FEC rejected this argument, unanimously, describing a site that might sound very familiar to you:
Fired Up is a for-profit LLC and is not owned or controlled by any political party, political committee, or candidate. Given that Fired Up’s operation of its websites is at the core of its activities as a press entity, its provision of news stories, commentary, and editorials on its websites falls within Fired Up’s legitimate press function. Thus, because Fired Up is a press entity, and neither it nor its websites are owned or controlled by any political party, political committee, or candidate, the costs Fired Up incurs in covering or carrying a news story, commentary, or editorial on its websites are exempt from the definitions of "contribution" and "expenditure." 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.")
Because the costs aren't counted as contributions or expenditures, you never reach the political committee question Bambenek claims. Indeed, as FEC commissioner Ellen Weintraub told Salon.com two years ago, even before the new regulations or the FiredUp opinion, "People like Red State [a prominent conservative blog] or Kos clearly fall under the media exemption ... 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."
Moreover, the FEC regulations codified in March 2006 both reaffirmed the broad media exemption and created a vast protection for volunteer activities on behalf of candidates -- if you're not compensated by the campaign, it doesn't count as a contribution to the campaign -- even if you're a group or incorporated as an LLC. (See p. 25 of the PDF, 11 C.F.R. §§ 100.73, 100.94, 100.132 and 100.155.)
Let's be clear: hypothetical-but-now-sadly-real complaints like this are precisely why we banded together with RedState and sites across the blogosphere, to ensure that no site of any ideological stripe has to face threats like this, so that election seasons don't become tit-for-tat complaints across the Internet that end up shutting down online activism.
Markos has asked me to represent him should the FEC even require a response, and as you can see I've been trying to reason with this guy. If Bambenek persists in this quest and refuses to withdraw his complaint, I will vigorously defend this site, and pursue any legal means available to recover from Bambenek the costs of defending against something which seeks to stifle the speech of every member of the site. This aggression will not stand.
edited to add: Bambenek's conservative friends are already weighing in!
InstaPundit: "this is a terrible idea".
NRO's The Corner: "an outrage against the First Amendment that every conservative should fight vigorously."
RedState: "Let's be clear, not only is Bambanek woefully uninformed about the law (didn't we go over this for a whole freaking YEAR?) and its application on the internet, he's even less capable of grasping the concept (and frankly, value) of free speech on the web.... This complaint is a sorry attempt to use government institutions to silence opponents. I'm almost grateful Bambanek apparently slept from March 2005 through the Summer of 2006, because the stunt has zero chance of success."