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Ah, summer, the time for daydreams, like when BlogCritics.org's John Bambenek believed he could haul DailyKos before the Federal Election Commission and have a hearing where he'd prove that we were violating the law by failing to register as a political committee.

Vacation's over, and the FEC has unanimously determined that DailyKos qualifies as a media entity under federal law, and thus none of the site's expenditures count under federal law for determining whether a political committee was formed.  Just like a newspaper isn't charged with making a campaign contribution by editorializing on behalf of a candidate, neither is this site:

Kos Media qualifies as a media entity in its function of operating DailyKos. DailyKos is available to the general public and is the online equivalent of a newspaper, magazine, or other periodical publication as described in the Act and Commission regulations. Additionally, DailyKos is precisely the type of online media presence the Commission contemplated when revising the media exemption provided in 11 C.F.R. §§ 100.73 and 100.132.  An examination of DailyKos and other supporting materials demonstrates that the site’s primary function is to provide news and commentary to millions of viewers through its "blog" entries providing news stories with links to "breaking news," original political commentary, and calls to action. Like traditional media outlets such as newspapers and magazines, DailyKos has a publisher, Moulitsas, who appears to retain editorial control over the content of the site, and a list of contributing editors, who along with Moulitsas appear to be "front page posters" and draft stories. Further, registered users of DailyKos may post responsive comments, which are similar to letters to the editors in traditional media outlets.

In addition, Kos Media’s creation and distribution of the DailyKos falls within the scope of the exemption. First, the complaint does not allege, nor does publicly available information indicate, that Kos Media is owned or controlled by a political party, committee, or candidate. Second, by creating and distributing the DailyKos, containing news stones with links to "breaking news," original political commentary and calls to actions akin to editorials, Kos Media is acting within its legitimate press function that qualifies it as a press entity. As such, Kos Media’s creation and distribution of the DailyKos falls within Kos Media’s legitimate press. function. Moreover, Kos Media's operation of DailyKos is the type of activity contemplated by the Commission during its rulemaking regarding the media exemption....

While the complaint asserts that DailyKos advocates for the election of Democrats to federal office, the Commission has repeatedly stated that an entity that would otherwise qualify for the media exemption does not lose its eligibility because it features news or commentary lacking objectivity or expressly advocates in its editorials the election or defeat of a federal candidate.

You can see our submission before the FEC via this link.  In an abundance of caution, I opted to be thorough with this one and review the FEC's clear precedents -- if you're doing news, commentary or editorial, and you're not owned/controlled by a political candidate, party or committee, you're exempt.  The law was clear before today, and it's even clearer now: what this site does and what sites like this do is protected under federal law, and should not be the subject of baseless, time-consuming complaints.

We weren't the only folks to win before the FEC today.  Blogger Michael Grace was hit with an FEC complaint in 2006 which alleged that he created a site on something called a "blogspot" to criticize Rep. Mary Bono, allegedly making unlawful, unreported expenditures in coordination with Bono's opponent by blogging as "Mary Bono" on an obvious parody site.  Grace fought this one back by himself and won -- the FEC unanimously ruled that his voluntary expenditures (if any) were perfectly legal, and that his obvious parody was protected under the law: "the content of the blog sites would lead a reasonable person to believe that Grace’s blog was not actually the creation of Mary Bono. Instead, this is, as Grace contends, political satire that does not violate the Act."

Bottom line: no blogger should have to go through what either we or Michael Grace did.  The FEC regulations for which we fought in 2005-06 make pretty damn clear that online grassroots political activity is protected under the law, and none of us should live under the threat of FEC sanction for our activities.  And, hopefully, these clear decisions will quash the cinematic dreams of gadflies like Bambenek who believe they can get their "day in court" to vindicate their personal fantasies of what the law is.  

Now, one hopes, the FEC can focus its attention on more important things.

Originally posted to Daily Kos on Tue Sep 04, 2007 at 02:31 PM PDT.

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