The Volokh Conspiracy - Bloggers and Campaign Finance Law:

John Bambenek (BlogCritics) has filed a complaint with the Federal Elections Commission, alleging that DailyKos is a "political committee" that is subject to various federal elections law registration and reporting requirements with which it hasn't complied. After all, Bambenek argues, the DailyKos itself says that it is "about electing Democrats," and is therefore a political committee.

Fortunately, even partisan blogs are not covered by federal election law, because — as the FEC ruled in November 2005 — they are covered under the "press exception" to campaign finance law. The ruling, which came in response to a request by Fired Up, a Missouri democratic activist blog, concluded (citations omitted, some paragraph breaks added):

The Act and Commission regulations define the terms "contribution" and "expenditure" to include any gift of money or "anything of value" for the purpose of influencing a Federal election. However, there is an exception for "any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication ... unless the facility is owned or controlled by any political party, political committee, or candidate[.]" This exclusion is known as the "press exception."

The Commission has applied a two-step analysis to determine whether the press exception applies. First, the Commission asks whether the entity engaging in the activity is a press entity as described by the Act and Commission regulations. Second, in determining the scope of the exception, the Commission considers: (1) whether the press entity is owned or controlled by a political party, political committee, or candidate; and (2) whether the press entity is acting as a press entity in conducting the activity at issue (i.e., whether the entity is acting in its "legitimate press function"). Two considerations in applying this analysis include whether the entity's materials are available to the general public and are comparable in form to those ordinarily issued by the entity....

Fired Up qualifies as a press entity. Its websites are both available to the general public and are the online equivalent of a newspaper, magazine, or other periodical publication as described in the Act and Commission regulations.

An examination of Fired Up's websites reveals that a primary function of the websites is to provide news and information to readers through Fired Up's commentary on, quotes from, summaries of, and hyperlinks to news articles appearing on other entities' websites and through Fired Up's original reporting. Fired Up retains editorial control over the content displayed on its websites, much as newspaper or magazine editors determine which news stories, commentaries, and editorials appear in their own publications. Roy Temple, acting on behalf of Fired Up, not only produces much of the content but also exercises day-to-day control over which stories are featured. Reader comments appearing on Fired Up's websites are similar to letters to the editor and do not alter the basic function of Fired Up.

According to the House report on the 1974 amendments to the Act, the press exception made plain Congress's intent that the Act would not "limit or burden in any way the first amendment freedoms of the press ..." and would assure "the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns." Consistent with this intent, the Commission has already expressly extended the press exception to qualified activities that appear on the Internet.... Thus, Fired Up is a press entity and satisfies the first step of the press exception test....

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....

The same, I think, would be said about DailyKos and lots of other political blogs (with some exceptions, such as blogs that are run directly by a political party or candidate).

There is much to criticize in modern federal campaign finance law; and it may well be that the press exception should be even broader than it is — though keep in mind that broadening the exception, or repealing the law altogether, would interfere with disclosure requirements (which even many critics of contribution and spending limits support) and not just spending limits.

Nonetheless, the press exception as the FEC has rightly interpreted it is broad enough to cover blogs, even highly partisan blogs that aim to elect Democrats, just as it covers partisan magazines such as the National Review or the Nation.

Note also this defense this morning of DailyKos by David Freddoso (the Corner, National Review), comments to the FEC urging regulation of political blogs by Democracy 21, the Campaign Legal Center, and the Center for Responsive Politics, a concurring opinion by two FEC commissioners that seems to call for a somewhat narrower view of the "press exception" than the majority would adopt, and this letter supporting the Fired Up decision from Duncan Black (Atrios), Markos Moulitsas Zuniga (DailyKos) and Matt Stoller (MyDD).

	[Eugene Volokh, July 24, 2007 at 1:27pm] Trackbacks Bloggers and Campaign Finance Law: John Bambenek (BlogCritics) has filed a complaint with the Federal Elections Commission, alleging that DailyKos is a "political committee" that is subject to various federal elections law registration and reporting requirements with which it hasn't complied. After all, Bambenek argues, the DailyKos itself says that it is "about electing Democrats," and is therefore a political committee. Fortunately, even partisan blogs are not covered by federal election law, because — as the FEC ruled in November 2005 — they are covered under the "press exception" to campaign finance law. The ruling, which came in response to a request by Fired Up, a Missouri democratic activist blog, concluded (citations omitted, some paragraph breaks added): The Act and Commission regulations define the terms "contribution" and "expenditure" to include any gift of money or "anything of value" for the purpose of influencing a Federal election. However, there is an exception for "any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication ... unless the facility is owned or controlled by any political party, political committee, or candidate[.]" This exclusion is known as the "press exception." The Commission has applied a two-step analysis to determine whether the press exception applies. First, the Commission asks whether the entity engaging in the activity is a press entity as described by the Act and Commission regulations. Second, in determining the scope of the exception, the Commission considers: (1) whether the press entity is owned or controlled by a political party, political committee, or candidate; and (2) whether the press entity is acting as a press entity in conducting the activity at issue (i.e., whether the entity is acting in its "legitimate press function"). Two considerations in applying this analysis include whether the entity's materials are available to the general public and are comparable in form to those ordinarily issued by the entity.... Fired Up qualifies as a press entity. Its websites are both available to the general public and are the online equivalent of a newspaper, magazine, or other periodical publication as described in the Act and Commission regulations. An examination of Fired Up's websites reveals that a primary function of the websites is to provide news and information to readers through Fired Up's commentary on, quotes from, summaries of, and hyperlinks to news articles appearing on other entities' websites and through Fired Up's original reporting. Fired Up retains editorial control over the content displayed on its websites, much as newspaper or magazine editors determine which news stories, commentaries, and editorials appear in their own publications. Roy Temple, acting on behalf of Fired Up, not only produces much of the content but also exercises day-to-day control over which stories are featured. Reader comments appearing on Fired Up's websites are similar to letters to the editor and do not alter the basic function of Fired Up. According to the House report on the 1974 amendments to the Act, the press exception made plain Congress's intent that the Act would not "limit or burden in any way the first amendment freedoms of the press ..." and would assure "the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns." Consistent with this intent, the Commission has already expressly extended the press exception to qualified activities that appear on the Internet.... Thus, Fired Up is a press entity and satisfies the first step of the press exception test.... 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.... The same, I think, would be said about DailyKos and lots of other political blogs (with some exceptions, such as blogs that are run directly by a political party or candidate). There is much to criticize in modern federal campaign finance law; and it may well be that the press exception should be even broader than it is — though keep in mind that broadening the exception, or repealing the law altogether, would interfere with disclosure requirements (which even many critics of contribution and spending limits support) and not just spending limits. Nonetheless, the press exception as the FEC has rightly interpreted it is broad enough to cover blogs, even highly partisan blogs that aim to elect Democrats, just as it covers partisan magazines such as the National Review or the Nation. Note also this defense this morning of DailyKos by David Freddoso (the Corner, National Review), comments to the FEC urging regulation of political blogs by Democracy 21, the Campaign Legal Center, and the Center for Responsive Politics, a concurring opinion by two FEC commissioners that seems to call for a somewhat narrower view of the "press exception" than the majority would adopt, and this letter supporting the Fired Up decision from Duncan Black (Atrios), Markos Moulitsas Zuniga (DailyKos) and Matt Stoller (MyDD).