Daily Kos Blog Not Subject to FEC Regulation
January 8, 2008
Leo Rydzewski - Washington
The Federal Election Commission (FEC) recently dismissed an enforcement action against the Daily Kos, finding that the liberal-leaning blog is not subject to FEC regulation.
The complaint was filed by another blogger, conservative journalist John Bambenek, author of the blog “Part Time Pundit,” who asked the FEC to find that the Daily Kos is subject to campaign finance laws because it allegedly acts as a political committee that exists to help elect Democrats. The complaint claimed that the Daily Kos provides a gift of free advertising and candidate media services – in the form of blog entries supporting particular federal candidates – which should be valued at the Web site’s rates for paid advertising.
The FEC unanimously rejected the complaint, finding that the Internet blog activity is exempt from regulation under the exemption for media reports. Media activity has been explicitly exempted from federal campaign finance regulation since 1974. In March 2006, the commission approved new regulations concerning communications over the Internet, which provided that “costs incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station, ... Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication,” are not a contribution or expenditure unless the facility is owned by a political party, committee, or candidate.
In promulgating the new regulation, the commission clarified that the media exemption applies to media entities that cover or carry news stories, commentary and editorials on the Internet. The commission also explicitly contemplated that bloggers could qualify for the media exemption, just as other media outlets would.
Applying the new regulation, the FEC found that Kos Media, which operates the Web site DailyKos.com, qualifies as a media entity because the Daily Kos is the online equivalent of a newspaper, magazine, or other periodical publication. According to the FEC, the Daily Kos, which offers 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, “is precisely the type of online media presence” that the media exemption contemplates. Indeed, the FEC noted that the Daily Kos is much like traditional media outlets, in that it has a publisher who retains editorial control, a list of contributing editors and a readership who may post responsive comments that are similar to letters to the editor.
Having found that the media exemption applied, the FEC summarily rejected the claim that the Daily Kos should lose this status because it advocates for Democrats, reiterating its long-standing position that an entity that otherwise would qualify for an exemption does not lose its eligibility because its news or commentary lacks objectivity or expressly advocates in its editorials for the election or defeat of a political candidate. Consequently, the FEC concluded that activity on the Daily Kos Web site does not constitute a contribution or expenditure that would trigger political committee status, and that the commission has no reason to believe that the Daily Kos violated federal campaign finance law.
For more information, Leo G. Rydzewski at leo.rydzewski@hklaw.com or call toll free, 1-888-688-8500.