September 6th, 2007

Problem With FEC Exemption Of Blogs: You Can’t Follow The Money

by

The Federal Election Commission reaffirmed a decision from March of last year that blogs are media entities and are therefore exempt from FEC oversight, like other media. The exemption applies to blogs that are not “owned or controlled by a political party, committee, or candidate.” But here’s the problem with that — since publishing a blog on a service like Blogger is free, how can you know for sure who owns or controls a blog?

The complaint against Daily Kos accused the site’s parent company and its operator Markos Moulitsas Zuniga of encouraging the election of Democratic candidates and offering free advertising for candidates through political speech. The author of the complaint, Internet security expert and conservative blogger John C. A. Bambenek, asserted that by engaging in these activities, Mr. Zuniga operates a political committee, which should be registered and subject to FEC rules.

In response to the complaint, the FEC applied a two-part test to Daily Kos. The commission ruled that because the site is a media entity and is not “owned or controlled by a political party, committee, or candidate,” it acts as a “press entity” and is therefore exempt from FEC oversight.

To be clear, I actually agree that independent blogs are media entities that should be exempt from FEC oversights — it’s just not clear that it’s possible anymore to accurately separate the independent blogs from those that are “owned or controlled by a political party, committee, or candidate.”

It used to be that if you want to start a “media entity” — a newspaper, a magazine, a TV station — you needed a lot of money and resources. It was a complex process with lots of paper trails. It would have been difficult for a political entity to create a media entity with significant reach and with sustainable interest without at least some evidence that a political entity was indeed behind it.

Now anyone can set up an anonymous blog on Blogger, WordPress.com, or other services and pretend to be anything or anyone they want.

That is the double-edged sword of the democratization of media — anyone can be a publisher online, including you, me, your neighbor, your friend, your dog, the DNC, the RNC, and every PAC in the country. Letting everyone have a say means EVERYONE, not just people we like, or people with no agenda, or people who fit our idealized notion of “the people” or “citizens.” It includes those who may want to manipulate and deceive us for political or monetary gain.

It seems that the FEC is using old media standards to regulate — or fail to regulate — new media. Of course, regulating every blog as if it MIGHT be a front for a PAC isn’t a solution either.

Frankly, I don’t know what the solution is — maybe laissez-faire is the way to go. But the FCC shouldn’t pretend anymore that it has any really viable way to distinguish what should be regulated from what shouldn’t.

Comments (7 Responses so far)

  1. Idea of blog came from independence i.e. free from policing and any bar on that concept may jeopardise the whole concept regardless endless debates.

  2. A couple things:

    In my experience working with political blogs on the sate level (in more than 30 states), the blogs that have impact are long-standing with a well-known point of view and author. A politician or party can’t just set up something free and expect to have it make much of a difference instantly.

    Second, since the pols and parties must disclose their expenditures on the federal level and to a lesser extent depending on the state, bought and paid for blogs will be revealed that way.

    Established blogs that accept payoffs like that usually undermine their credibility in a big way if they hide it. If memory serves, that’s pretty much what happened with the conservative blogs that went after Tom Daschle in South Dakota (not sure if it was the other Dakota)

  3. @David

    Thanks for the clarifying observations.

    Here’s the problem still — what if no money changes hands? What if an established blog willingly goes into the pocket of a political organization for ideological reasons, without accepting any cash — which is possible because there is no cost to be reimbursed for running the blog?

    Political orgs are also patient — a political operative can start up a seemingly independent blog and keep it going for months/years until it gains traction — it can then be used or political attacks or smears without anyone knowing it’s being done in coordination with a political org.

    I still see a lot of gray in the absence of a cash trail to follow.

  4. Scott,

    I’d say if an operative wants to spend that much time (which is also money)they’ll soon find there are easier and cheaper ways to get their trashy info out.

    As for “going into the pocket” of a political org, how on earth can anyone decide that. Just because the WSJ ran editorial and after editorial from the wackier fringes of the anti-Clinton crowd does not mean the government should get to stick its nose into the finances of a newspaper.

    A blog has exactly the same First Amendment rights as a newspaper in the U.S.

    I agree with you that naughty things could happen and probably already have, but in the grand scheme of things they are really small problems for Democracy. We’ve survived them before.

    Didn’t Jefferson pay propaganda rags out of government coffers when he was the President? I am almost sure he gave friendly newspaper editors patronage jobs as well. The more things change …

  5. I can see why there might be some concern but fortunately there is already in place the definitive answer.

    Congress shall make NO law restricting freedom of speech or the press. However you wish to define blogs, speech or press, they qualify.

    The solution to any perceived problem is simply more speech or press.

  6. @David,

    I’m not at all suggesting that the “government should stick its nose” in blogs. But it shouldn’t pretend either that it has any potential problems contained through its current regulation. As for the potential scale of the problem — you’re right that it has always existed, but the scale is likely to grow, perhaps significantly — but we shouldn’t pretend to know how much.

  7. Earlier this year I interviewed Adam Bonin, a lawyer who represented a few of the NetRoots bloggers during the FEC hearings that lead to the new ruling. His position was that the purpose of FEC regulations is to control the influence that money has on the political process. In Bonin’s words:

    “The technology really allows what the law by itself could not, which is a leveling of the playing field. It really is accomplishing what the thrust of campaign finance law is. It is negating the ability of large sums of money to dominate the process.”

    Political blogs are really just the tip of the iceberg. YouTube has already had a huge impact on the political process. I doubt we’ll see the FEC regulating web video or any other form of social media anytime soon.

    For better or worse, social media as we know it is only going to become more politicized.

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