FEC dissent

Kos is arguing that bloggers should be eligible for a media exemption to the FEC reporting rules. The media exemption gives journalists the right to say whatever they want about a candidate without reporting their expenditures to the FEC.

I agree that political bloggers should be eligible for the exemption. The exemption is designed to carve out distinction between protected political expression and speech for hire, not between citizen journalists and professionals.

The exemption is important because even a fawning press is fundamentally different from an PR firm.

Tom Paine argues that he shouldn't have to tell the FEC whether he's a journalist or an activist. If he were to continue his traditional political projects online, the proposed changes probably wouldn't force him to do so. As a journalist, Tom Paine is free to be an activist in the sense that he can offer partisan political commentary. He can rail against injustice, crusade for causes, muckrake, and do all the things journalists did back in the good old days before pseudo-objectivity took over.

However, if he starts taking money from a candidate, raising large amounts of money for a candidate, or donating significant resources in kind to a campaign, he's no longer operating as a member of the press.

This issue has been mischaracterized as a campaign to force bloggers to register with the government. The FEC just wants people to report financial transactions. A blogger who isn't financially implicated in the campaign can say whatever they want, whether they seek a media exemption or not.

Bear in mind that the FEC is only concerned with relatively significant sums. The proposed changes only call for blogging operatives to report if more than $1000 changes hands per race. That's reasonable. The FEC doesn't care about citizens putting up political bumper stickers on their blogs or in their windows. They're not going to expend any effort policing these small contributions.

If you support any form of spending limits for campaigns, there's no principled reason why internet campaign spending should be exempt. The public deserves to know who's donating to whom and which participants in the public sphere are directly sponsored by political candidates. Note: there's nothing inherently wrong with being an operative, a consultant, or a fundraiser. However, if that's what you're doing, you ought to report your expenses to the FEC.

Armstrong Williams and Maggie Gallagher disgraced themselves by accepting government bribes for favorable coverage. By contrast, Jodi Wilgoren and Adam Nagourney are not on the take. Their sycophantic puff pieces are protected speech because money doesn't change hands.

The latest set of comments submitted to the FEC argue that citizens be forced to choose one identity per election--journalist or fundraiser. That proposal is probably too strict. As far as the state is concerned, journalists are generally allowed to participate in partisan political activities in their spare time. Some media outlets forbid their own news staff to participate in engage in private partisan politics, but these rules have more to do with professional ethics than with election law. Obviously, all members of the media have a responsibility to be open with their employers, their readers, and the FEC about any significant financial ties to any campaign.

Politicians and political action committees will be more likely to invest in blogs if they know that they can spend unlimited amounts off the books.* However, fairness dictates that the same rules apply to all journalists and activists, regardless of medium.

*Blog ads aren't off the books now, and the new rules wouldn't change that. If bloggers enjoy a blanket media exemption, campaigns will have an added incentive to hire bloggers. A blanket media exemption would also spur the development of expensive web content that would otherwise have to be labeled as advertising and reported as such.

Comments

[Joe]

A few wrinkles.

Many state regulations deal with sums much smaller than $1000.

The wholeheartedly slanted papers of yore in various cases were paid mouthpieces for a certain candidate or party. Thomas Jefferson, for one, gave money to such papers.

Finally, certain magazines and such are clearly friendly to certain political points of view. They are friendly to certain political parties, if not always in a kneejerk fashion. They often editorially endorse candidates. All in all, they clearly "raise money" for them and assist their campaign in various respects. And, their editorial decisions are not purely neutral factfinding matters.

And, there is a general sentiment that this is so. Certain media outlets are deemed de facto wings of certain political parties. The fact that said outlets are not technically "on the payroll" seems to me a somewhat hazy line.

[Vaughn Hopkins]

For some time I have favored having no limits or regulation of campaign contributions by people, but prohibiting any such contribution by corporations. In fact, my ideal law would say that unless you are a registered voter in the election at stake, you cannot donate a dime. Thus, Florida individuals could not donate to Governator Ahnold's campaigns, either for initiatives or for reelection. With that kind of finance limitation blogs would be free to raise funds as they wished, as long as they were personal blogs and the people the donations came from were registered voters in the districts involved. But, I don't really think there is yet a workable scheme to restrict donations.

[mudkitty]

This wouldn't be an issue if we had federal financing for candidates.

[bunny]

If I accept money from a campaign, why should I have to report it? Bloggers would be the only people in the US required to report money recieved from a campaign.

The campaign has to report to the FEC about every dime spent. I believe that already covers payments made to bloggers, but if it doesn't, it certainly should.

Now from a blogger ethics POV, anyone who recieves money from a campaign should disclose it, just like Kos did.

As for bloggers acting as fundraisers, again, I don't see why the rules need to change. Anybody, blogger or pro journo alike can donate $2k per election per candidate, and they have to fill out the little card that the campaign files with the FEC. And anybody can ask their friends, neighbors, people on the street, to donate to a campaign.

[jr]

Blogs shouldn't have any more regulation than talk radio has. Rush can badmouth dem candidate x 15 hours a week but the fec will go after a blogger

[Squashed Lemon]

Atrios has a related entry too.

http://atrios.blogspot.com/2005_05_29_atrios_archive.html#111785455396028264

Our lawyer, Adam Bonin, has done a great job submitting public comments to the FEC on our behalf. It's a pretty interesting read overall, but I these bits captured my personal biggest issues with the whole thing quite well:

At their best, bloggers are true journalists, contacting sources, researching facts and raising public awareness of vital issues. Even at their "worst," bloggers perform the same function as talk radio hosts or opinion journalists in the print and televised media, energizing partisan supporters through humor, vitriol and innuendo. That which is allowed under the media exemption in other formats (TV, radio, print) should be equally permitted on the Internet. There is no legitimate reason to distinguish between Sean Hannity, Maureen Dowd, Bill O’Reilly and us in terms of who among us can freely speak in support of or opposition to federal candidates without incurring federal reporting obligations or contribution limits...

[Lindsay Beyerstein]

Rush gets a media exemption, and the blogger should also get a media exemption, too. If a political candidate pays Rush or the blogger, the FEC has to hear about it. In that case, neither Rush nor the blogger keeps their media exemption. Fair's fair.

[mudkitty]

It seems to me that if you take money from a cadidate...you have to make that clear. What it is and for what purpose.

[Lindsay Beyerstein]

If you're getting money from a campaign to deliver positive messages, you're doing PR or advertising, not journalism. In which case you wouldn't qualify for a media exemption. The campaign has to report what they paid you.

On the other hand, if you're spending money to cover a candidate--bandwidth, travel, wages, whatever--then you either have to claim a media exemption, or report those costs to the FEC. If you don't have a media exemption, those costs are effectively donations to the campaign and must be accounted for.

I don't think a media exemption is necessarily something you must actively claim in the sense of filing with the FEC for official status. Freelance print journalists don't have to register, do they?

[Atrios]

Lindsay,
either I'm misunderstanding something or you're missing something. Nobody thinks that paid internet advertising should be off the books for candidates. The media exemption doesn't mean that Candidate X doesn't have to report advertising expenditures. Candidates have to report all disbursements. However, the issue (one of many) is whether bloggers would have to report such receipts separately, something no other media outlet has to do.

Again, payments directly to bloggers already have to be reported by the candidates. In the House this is almost instantaneous, for the Senate there's a big delay. I'm all for quicker disclosure, but I have no idea why I have to report this stuff and some guy appearing on CNN doesn't.

[Lindsay Beyerstein]

I'm going to rewrite that last paragraph--I think it gives a misleading impression.

I'm arguing that a sponsored blog should be counted as advertising--and therefore subject to the same rules other political advertising, including "approved by" and "paid for" lines. The paid content should be clearly labeled.

A campaign that hires a blogger is essentially creating an online infomercial/advertorial. Hiring a blogger for consulting work is different. I know, in the real world, consulting opportunities are an indirect form of leverage over content. But the law should recognize the difference between cosiness and payola.

My second point is that people who are directly employed by a campaign don't deserve media exemption, regardless of what medium they work in. The FEC probably isn't stringent enough with mainstream pundits like Bob Novak.

[Atrios]

Lindsay,
Still, you're subjecting bloggers to more stringent requirements than any other media figures. When Joe Trippi appears on MSNBC he doesn't legally have to disclose his client list. Ethically, he should of course if he's discussing candidates he's working for, but that's something entirely separate from a legal filing requirement.

To be clear, I think there are things which are equivalent to advertising and can be treated as such. If a blog is a wholly owned subsidiary of a campaign that would be the case.

But, forget "blogs" - this is about the internet generally. Should I be legally required to disclose if I post on a message board? Put up a diary on Kos? (is Kos then responsible, or the poster). How about other media? If I write a letter to the editor? Call in to a political talk show? Chat with people in a bar? How should I have to disclose, by filing a form?

I think dislosure and transparency are good, but that's something very different from the morass of legal issues that will arise once everyone who is paid by a campaign for anything has a disclosure burden.

[Lindsay Beyerstein]

I don't think the new rules would be unfairly stringent for bloggers compared to the rest of the media. Bloggers who spend a significant amount of money on a candidate's behalf to raise funds should be treated more like PACs than journalists (at least as far as their fundraising activities are concerned).

Of course, online fundraising is so efficient that a blogger could raise a lot of money without spending nearly enough to trigger the reporting requirements.

But suppose a group of bloggers invests in some expensive software and hardware to run a major online fundraising drive. If they are making significant outlays on behalf of a candidate, they should be required to report them to the FEC.

The new rules should acknowledge that simply linking to a website isn't coordination with that site or its sponsors. I think the FEC is willing to go along with that.

As far as candidates funding bloggers, bloggers should have to disclose that information if they are being hired to blog, but not if they are hired as consultants. Hired bloggers are in the same category as Armstrong Williams and Maggie Gallagher, unless they disclose their funding. Running unacknowledged payola should undermine a blog's claim to a media exemption.

[Krempasky]

"Of course, online fundraising is so efficient that a blogger could raise a lot of money without spending nearly enough to trigger the reporting requirements."

Except (and there's always that) that when the FEC determines that you're a prohibited source - the first penny you spend (never mind thresholds) not only becomes prohibited - but then you get into an even scarier territory. The *penalty* assessed for such an activity is not based on what you SPENT to make that illegal contribution - but on how much the campaign was ENRICHED. Ouch.

[mudkitty]

Do we have the Famous Atrios here?