The Federal Election Commission has recently ruled on the complaint filed against Kos Media (of DailyKos.com fame) that alleged it was running a political committee and did not file the required disclosures. The case was MUR 5928 and the documents are available via the Commission's Enforcement Query System (put 5928 in the case field). The interesting point of the dismissal is how it avoided answering the complaint.
The FEC, in their ruling said "First, the complaint does not allege, nor does publicly available information indicate, that Kos Media is owned or controlled by a political party, committee, or candidate." (Page 5, lines 17-18). They state this because if there was such an allegation or if Kos Media was a political committee, the media exemption doesn't apply. The problem is the entire complaint's sole focus is the fact that Kos Media is a political committee. That was exactly what I alleged. They simply ignored that, pretended I was alleging something else, and dismissed the complaint. This means with about a two-page long pleading and a $350 filing fee, this decision could be overturned trivially on appeal.
The more important issue, however, is the idea that FEC regulation is censorship. This is indefensibly false and every single blogger who claimed that it was goes to show that most bloggers aren't about facts; they are about hysteria and fear-mongering. It simply is not reasoned commentary but rants coming straight from the black helicopter crowd. To prove this answer the following questions:
Are the RNC and DNC political committees?The fact is, they haven't. Disclosure is not censorship by a long shot. We could argue about McCain-Feingold, but even if this complaint succeeds that law doesn't apply in this case anyway. FEC regulation has not shut down the RNC and DNC, I certainly get enough of their mailings. People still talk about politics even though they are members of a party. Western civilization as we know it has not collapsed. For an organization like Kos Media to whine on one hand about censorship, but on the other call for actual censorship in saying FOX News doesn't have a right to be on the air is the pinnacle of hypocrisy. Apparently they believe the government shouldn't control who has the right to be on the air... they believe they should have that editorial control.Do they have hundreds of thousands (if not millions) of members?
Are they regulated by the FEC?
How, in the decades of such regulation, have those hundreds of thousands (if not millions) of people been silenced?
In between posting agitprop worthy of a Michael Moore movie and posting the victimologies about how a well-funded, well-connected multi-million dollar corporation is oppressed because a private citizen legally petitioned his government, there are some other interesting facts. Namely, Kos' attorney keeps issuing sometimes overt, sometimes vague threats. If they're so right, why do they need to keep threatening to file SLAPP suits when they know full well there is absolutely no cause of action. It's likely because they have something to hide.
At the end of the day, the issue is still not about regulation of blogs. It's about regulation of political committees who organize online. If Kos Media wants to be in the business of electing Democrats, that's fine. They just have to register like every other political committee doing the same thing.
Article comments
1 - Adam B.
One last time:
1a. The FEC did address your political committee question. They decided it against you because (a) the site engages in news, commentary and editorial; (b) is not owned or controlled by a candidate, party or political committee; and (c) the purpose test is determined by what a site does, not by pulling together various random pronouncements.
(Think of it this way: if tomorrow, Markos announced "From today forward, the purpose of this site is to provide news, commentary and editorial content on Democratic issues," but none of the site's diaries changed in form or content, would it be a political committee?)
1b. How can Kos Media be a political committee in the first place -- it's just one person, organized as an LLC? Political committee status requires a *group*. 11 CFR 100.5.
1c. And because Kos Media qualifies for the press exception, because it is a media entity and acts like one -- you can never get to the $1000 threshold for political committee status because you never get past $0.00 in terms of its expenditures.
1d. Moreover, see footnote 8 of the FEC's opinion -- even were the media exception not to apply, the individual volunteer exception protects Kos Media and provides an equally acceptable route for exempting the site.
1e. Okay, one more thing: because of the Fired Up Advisory Opinion, the FEC would be barred from calling Daily Kos a political committee even if it wanted to. Folks interested in learning why should read our response to the FEC at 6-7.
2. I -- and every single person familiar with the law in this area -- have encouraged you to abandon this silly quest because you are wasting your time, and everyone else's -- and, in the process, wasting my client's money. We all have things we'd rather be doing. If you pursue this further, now you're wasting even more of the government's money, and I could just sit back and watch.
3. And if you believe that "a two-page long pleading and a $350 filing fee" is all it takes to reverse this, talk to an attorney. Any attorney, really, but preferably one that knows some election law. John, you're from all accounts a brilliant guy when it comes to network security issues. But not, apparently, legal ones.
2 - RJ
This Adam B. character is a lawyer? He sure sounds like one. Probably a good one, too, if he's representing the Kos Kidz and taking time out of his day to troll BlogCritics and immediately post rebuttals in the comments section.
Anyway, no matter how disgusting and vile the conspiracy-mongering and hate coming from the fever swamp that is DailyKos, the FEC's ruling was a good thing. I don't want to have my right-wing speech on the internet regulated by the federal government, and so to be fair they shouldn't have their left-wing pablum regulated by the federal government either.
Fair is fair. It's best to leave the loons alone.
3 - Hill
Adam B., stop discouraging John. It'll be funny to see what happens after he pisses away his $350 and, after the inevitable defeat, tells us how a simple two-page pleading and $350 guarantees the Supreme Court will overturn the decision.
He had already told us what an easy decision this would be at the FEC, yet they unanimously squashed him like a bug in what, two weeks? It wasn't even close. So let's see him waste more of his time and money on his fevered fantasies.
The little imaginary lawyer in his head is ensuring that, as the proverb alleges, a fool and his money are truly parted.
4 - Dave Nalle
I think it's nice that John likes to tilt at windmills. If he didn't raise these issues then the courts wouldn't have an opportunity to rule on them and define once and for all that bloggers do enjoy these protections.
So remember that he's doing us all a service and so are the otherwise reprehensible leftists at DailyKos who are stading up to him. It does just a little bit to justify their otherwise worthless existence.
Dave
5 - John Bambenek
Dave-
The courts didn't rule... there will only be a lawsuit if and when I appeal.
Adam-
The FEC said in their ruling I did not allege that you were a political committee... that was precisely what I did allege and they ignored it. They could have just said, well, we've got an affadavit and that's good enough for us, but they didn't. That makes this appeal real easy because they didn't address my complaint at all.
Other than that, I'm not really going to discuss this much more with you because you keep threatening me with illegal lawsuits and then have your goon squad harass me in email. If you're trying to prove you're not a political organization by acting like a criminal organization, you're succeeding.
6 - John Bambenek
And to be fair, I was being simplistic when I said 2 pages. Yeah, the complaint would be two pages but then I'd have to serve them with waivers and do that paperwork, they'd file motions to dismiss under Rule 12, I'd respond and file a motion for summary judgment, they'd respond, we'd play games a while. The district judge probably won't jump on the case right away because its relatively minor so things might linger a few months before any response comes down. He might not want to deal with it and will find something to spike it on. Then we have the whole appeal mess. Fine, I exaggerated somewhat to make a point.
When they said I didn't allege Kos Media was a PC when that was precisely what I did allege, it left a wide open hole to appeal. If they wanted to really end it, they could have taken the affidavit and said, it's not a PC, end of story.
And in the end, an appeal would just make them do it again, and likely they'd simply reword their dismissal to actually acknowledge the complaint this time. Then I'd have to appeal and start over, or challenge the rules.
But that long-winded explanation is a little much for a quick column, don't you think?
7 - Adam B.
I have not threatened you with illegal lawsuits, and anyone who's harassing you via email should stop. It is not something I or Markos have encouraged or would encourage.
Again, Kos Media LLC cannot, under the law, be a political committee. Even before you get to the media exception question, Kos Media is not a "committee, club, association, or other group of persons," but a one-person entity formed for liability purposes.
8 - John Bambenek
If the FEC said that, I'd likely have a lot less grounds to appeal... they didn't. And yes you have so threatened. In fact, your first post on the matter, wanker of the year, was pretty clear you intend to recover costs. You supposedly know election law, you should know that such a statement was groundless from the word go. It's called a SLAPP suit and you know better.
That's not what I took out of Kos' affidavit or your filing. "The sute us run by a staff of two - Moulitsas and a computer programmer" (Page 5, your filing). You also have 15 contributing editors, but yes, they are volunteers. This brings me to an unrelated point. Considering your max gross ad revenue is in the neighborhood of a few mil a year (depending on how much you sell, obviously), why is it that you don't pay your people? You certainly have the money. Using tax loopholes by incorporating in Delaware even though it's based in California is just another Big Business trying to avoid paying their fair share... but you're not even paying your people either. I think that's remarkably poor management.
But now your comments aren't even squaring with your filings. Staff of two is not an individual. I find it hard to accept that a corporation can be considered an individual just for the sake of avoid FEC disclosures, but maybe you're right on that. It's irrelevant regardless because it's not the case according to your own statements and your clients' affidavit.
9 - Adam B.
1. The site is owned and controlled by Kos Media. Kos Media has one owner, Markos Moulitsas Zuniga. That's what we've consistently said, because it's true. See 11 CFR 100.94(a) and (d), because despite being cited in the FEC's opinion, it seems clear you haven't read it yet.
2. What I said: "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 remains the case. To the extent that such means are available, they will be pursued.
3. I'll let Bob Bauer take #3. He has been practicing in this field for 30+ years, and currently serves as counsel to Obama for America and the Democratic Senatorial and Congressional Campaign Committees, but apparently doesn't know as much about campaign finance law as you do:
"The Complainant Bambenek, having failed to slay the mighty Kos on the fields of the FEC, is considering taking the battle upstream, on appeal. He will lose there, too, if he goes ahead with the plan.
"Mr. Bambenek’s problem is not one he can easily recover from: he seems unable to appreciate his legal position, and his obstinacy is such that, reviewing the FEC’s judgment "- one rendered lickety-split, by an agency fully bipartisan in its rejection of his complaint "- he has convinced himself that the regulators just misread the law while he got it right. Perhaps, losing in the next round, he will convince himself that he won, and it will end.
There once was a complainant named Bambenek:
Setting sail against Kos, all (two) hands on deck:
Though his ship’s run aground,
He thinks his course is quick sound,
Seeing not that he’s stuck in the sand"a wreck.
10 - John Bambenek
One, I didn't say the FEC doesn't know their rules... I said they didn't address my complaint... that's why the appeal has merit. The stated in their ruling that I did not allege Kos was a PC... that was exactly what I did do.
Two, I'm not going to post your emails up or snippets of them. You threatened, you know it. You know no such avenue exists... stating that was intimidation and you know it.
Three, just because one person owns a corporation, doesn't mean that there is no other individuals involved. A group exists because there are more than one person involved even if one person owns the group.
11 - Adam B.
Please re-read the first sentence of the FEC's opinion: "This matter concerns allegations that Kos Media, L.L.C. ("Kos Media"), which operates the website DailyKos.com ("DailyKos"), is a political committee and has failed to register and report with the Commission in violation of the Federal Election Campaign Act of 1971, as
amended ("the Act")." Then:
"Based upon the information discussed below, we conclude that the media exemption applies to Kos Media such that expenses associated with DailyKos are not contributions or expenditures, and Kos Media is not a political committee as defined by the Act.'"
With regards to "doesn't mean that there is no other individuals involved," you are now dealing in pure fiction.
12 - John Bambenek
Yet in making their ruling they said, "First, the complaint does not allege, nor does publicly available information indicate, that Kos Media is owned or controlled by a political party, committee, or candidate."
Doesn't make a lot of sense, does it? However, since they used the above as their rationale for their decision, which is false on its face, I can appeal and get an order to tell them to try again.
13 - Nancy
Without commenting on the merits of the case whatsoever, I find it amusing & instructive how the FEC managed to weasel out of actually doing any work or issuing any opinions by arguing what the definition of "is" is.
14 - John Bambenek
Exactly my point... hell, they could have just used Adam's filing as their response and they'd have done far better.
If they really wanted to end this they could have done it so much better than they had. Relying on a factual statement (he did not allege Kos was a PC) to make their ruling when that statement wasn't true makes it so easy to overturn.
And with all the righteous indignation of the blogs and others who can't manage to read what actually happened, I get more tempted every moment to file that appeal.
15 - Adam B.
Read it again, and slowly: the FEC accurately states that you did not allege that Kos Media was owned or controlled by a political party, committee or candidate. You alleged that it was itself a political committee, and the FEC laid out in detail why this was not the case.
Nancy, please read the opinion which the FEC issued.
16 - Nancy
I dunno, John. I support your right to file, but it probably will be a waste of good money, since they obviously don't want to touch it with a 10-ft pole, for real or spurious reasons.
17 - Dave Nalle
I have not threatened you with illegal lawsuits, and anyone who's harassing you via email should stop. It is not something I or Markos have encouraged or would encourage.
Surely you're not really this naive? You know what kind of a partisan fever swamp Kos is, and the breed of fanatics it attracts. The postings you have made about the suit there are exactly what's designed to drive those thuglike loyalists to intemperate action, and I'm sure JB has gotten plenty of nasty emails as a result.
Not explicitly ordering the troops out to harass him doesn't make you any less responsible.
dave
18 - Adam B.
Dave, from day one of this, I explicitly discouraged people from going after John.
19 - gonzo marx
lol at the sentiments of #17
now, while i fully support John's right to write, post or file as he sees fit..it IS funny as hell that the author of such bombastic vitriol as he has published around here could ever get upset by drawing some heat
just a Thought
Excelsior?
20 - RJ
The Kos Kidz must be seriously sweating this if Adam B. keeps coming back here every five minutes for rebuttals in the comments section...
I mean, if they won the case and it's all over, why would they keep arguing about it? Sounds like they're trying to discourage you from appealing, Mr. Bambenek...
I say do it. You'll probably lose on appeal, but so what? Make the commies sweat a little more...
21 - Clavos
LOL, the kozy weenies sure have their panties in a wad about ol' John!
I've never advocated banning anyone from BC before, but I'll make an exception for lawyers.
Shakespeare had it right about them. (Henry VI, Pt. IV, ii)
22 - gonzo marx
ya silly bishes...
John lost the first round, i'd encourage him to appeal if he thinks he can make the case...or better yet, reword his initial complaint filing to make certain his meaning cannot be misconstrued or dodged
but he'll still lose, imo...based solely on the merits and definitions of terms as has been established by precedent
he has EVERY right to try his hand at due process...on the flip side, Adam and the like have EVERY right to show up and give their side
just on the record of this Thread and the one before it...based purely on the writing and links from the two of them, yer gonzo sez John got spanked with a hot waffle iron...so far
your mileage may vary...
oh yeah "commies"? RJ, ya channeling McCarthy there d00d? mebbe i should actually look at Kos, i mean i went to the Drudge site two or three times...how bad can it be for someone who has sat through "Manos, the Hands of Fate"?
Excelsior?
23 - Clavos
Doesn't matter (to me) if he loses, gonzo.
I'm delighted that he's got them all atwitter and pissed off, like a hill of ants that's been disturbed.