DailyKos and Other Blogs Qualify as 'Media,' Exempt from Finance Laws

Responding to a complaint filed by a blogger for politically conservative Web sites, the US Federal Election Commission yesterday declared that DailyKos, a politically liberal site, operates as a news and commentary provider. As such - in effect, as a member of the "media" - DailyKos is exempt from campaign finance laws that restrict the amounts of money individuals and organizations may contribute.

BlogCritics writer John C. Bambenek alleged in July that DailyKos openly solicited money for what it characterized as good causes, in exchange for which the site would promote the donor through advertising. Rather than simply sell ads like a normal media site, Bambenek claimed, DailyKos was soliciting contributions, with advertising granted to contributors as a token of its appreciation.

"It is my belief that this organization operates as a political committee under section 43 l(4) both for making expenditures and having contributions in excess of $1,000," wrote Bambenek in his July complaint. He then cited evidence taken from the Web site stating its clear and overt purpose was to promote the election of Democrats to federal and state offices.

"I am aware of the no small amount of controversy involved with the suggestion of making bloggers accountable to the FEC," continued Bambenek. "However, I do not believe the particular method that this political committee uses is relevant. The law is rather neutral in respect to how the contributions or expenditures are used. What is important is that it is done with the express, overt and primary intent to influence elections to federal office. According to Kos Media's own assertion, that is precisely what they do. If they do that by stump speeches, radio ads, print or blogging is irrelevant. They say they exist to get Democrats elected and therefore fall under the purview of the FEC."

Clearly having stepped in it, so to speak, his initial repercussions were to have been awarded the title of "Wanker of the Year" by DailyKos. As one of the site's publishers, Adam B., responded, "If Bambenek persists in this quest and refuses to withdraw his complaint, I will vigorously defend this site, and pursue any legal means available to recover from Bambenek the costs of defending against something which seeks to stifle the speech of every member of the site. This aggression will not stand."

As it turned out, Adam B. didn't have to go that far. In its legal analysis yesterday, the Commission wrote, "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."

Like any traditional publication, the FEC found, DailyKos has principal editors and contributing editors. While it may have chosen a cause for itself, there are no clear and direct ties to any political party or candidate. "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," the FEC continued.

It goes on: "While the complaint asserts that DailyKos advocates for the election of Democrats for 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."

In short, the presence of bias does not indicate the absence of media.

The news comes as a defeat for a man who makes another part of his living looking for loopholes that others may attempt to exploit. If that name John Bambenek seemed familiar to you, then you've been reading BetaNews: It's the same University of Illinois, Urbana-Champaign researcher who posed serious questions last month about the security integrity of Skype, following a service outage that affected all its users worldwide for a 48-hour period.

After the FEC's decision, the question remains: Did Bambenek find an exploitable loophole in the election system? As he asked on one of his own blogs in July, "Can a political committee avoid campaign regulations by simply organizing in the form of a blog? Surely not."