Today I filed an Federal Election Commission (FEC) complaint against Kos Media, LLC., better known as DailyKos.com. I allege that they operate as a political committee and are therefore subject to FEC rules.
I first thought of this complaint during the Cindy Sheehan debacle over at Daily Kos, where Cindy pledged to run as an independent against Nancy Pelosi, and the Daily Kos basically turned on her. While some conservatives took great delight in this, I really didn't care because it's politics as usual. The right has thrown their fair share of people under the bus for not drinking the Kool-aid too.
However, the statement that the DailyKos was about electing Democrats stuck with me. I always assumed it was a standard left-wing group blog spouting the latest and greatest in left-wing diatribe. However, the statement that the blog exists to get Democrats elected is repeated in various places around the site, including statements by Kos himself.
Federal Election Commission rules apply for organizations that spend or contribute an equivalent of $1,000 per year in trying to influence elections for federal office. DailyKos is owned by Kos Media, a company, which makes it fit the definition of an organization. It surely spends at least $1,000 per year in hosting and based on what they charge (and get) for advertising, their support of candidates is certainly worth over $1,000 per year. Lastly, their self-identified purpose is to influence elections in the Democrats favor. They fit the criteria.
Some will argue that this is a slippery slope that will snare all bloggers. First, most bloggers aren't organizations. Second, most bloggers are read by like 3 people and their posts are certainly not worth $1,000. Third, most bloggers don't exist for the primary purpose of electing certain people to federal office.
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Article comments
— go to most recent comments1 - Some guy
The FEC looked into this back in 2005 or 2006, and concluded blogs like Daily Kos get the media exemption. Reformer groups argued the whole "get Democrats elected" thing, and it was shot down.
Your complaint is going into the trash.
2 - John Bambenek
What the FEC looked into in 2005 was different, unless you are referring to a different complaint... have a link so I can review?
3 - Dave
What about Foxnews being considered as well. Tony Snow as white house press correspondent.. just one of the many blatent examples of how the network is a bullhorn for the white house.
4 - John Bambenek
Fox News doesn't come out and say their primary purpose is to elect Republicans.
5 - Some guy
Google is your friend.
And it makes sense to know the law before you waste the FEC's time (and our tax dollars) on false claims.
I wonder if Daily Kos can recover legal fees from you for filing such a groundless claim...
6 - Some guy
Fox doesn't come out and say their primary purpose is to elect Republicans. True.
So in your world, you punish those who are open and honest, rather than those who lie and claim "up" is "down"? Interesting incentive system you've got there.
7 - John Bambenek
Entirely different issue, I knew it, read it, and saw how it doesn't apply to this case.
Thanks for playing, move on.
8 - Adam B.
I served as attorney for DailyKos in 2005-06 as the FEC was considering regulation of political activity online.
I strongly, strongly urge you to read FEC Advisory Opinion 2005-16 ("Fired Up") and the FEC regulations regarding the Internet approved by the FEC in 2006.
In short: the Federal Election Commission has already carefully considered these questions, and has rejected your approach completely, unanimously and unequivocally on facts identical to these. What DailyKos does is exempt from FEC regulation both because of its status as a press entity and because Markos's voluntary activities neither count as expenditures nor contributions under the law.
Once you review the applicable law, I trust that you will recognize that this complaint has no basis, and withdraw it accordingly.
9 - Dave Nalle
Of course, once the Fairness Doctrine gets passed into law, all of those protections for Daily Kos are out the window.
Dave
10 - Some guy
"Thanks for playing, move on."
Such arrogance! As Adam B says, read the law. It's not even remotely ambiguous.
11 - Some guy
The fairness doctrine, whatever its merits, has nothing to do with any website. It only applies to media outlets that use public airwaves -- radio and broadcast television.
12 - John Bambenek
So some guy shows up, says he's a lawyer, and that makes it true?
How novel.
13 - John Bambenek
1) The FiredUp case involves a site that did commentary. DailyKos's self-identified primary purpose is to get Democrats elected. That clearly identifies it as a partisan, not press, organizations.
2) The exemption you cite, if it applies which I argue it does not, involves uncompensated activity. Marcos gets paid. Maybe not by a campaign, but that doesn't matter (to avoid people paying for political consultants for campaigns and paying them via 3rd parties to avoid disclosure).
14 - Clavos
Bet Dave Neeleman wishes he'd never heard of markos...
15 - John Bambenek
In short, the fairness doctrine only is to apply to the detriment of conservatives. The liberal strongholds get to keep their monopolies.
16 - Adam B.
John, I'm not asking you to rely on my being a lawyer.
I'm asking you to read the regulations, and read the FEC's 2005 advisory opinion in which a site exactly like DailyKos asked the FEC to determine whether it counted as a "press entity" exempt from regulation. These precise questions were argued then, and the pro-regulation side lost.
Whether you consider this from a "press exception" standpoint or an "individual volunteer activity" standpoint, what KosMedia spends simply doesn't count as a contribution or expenditure under the law. As such, you never reach the political committee question.
If you have any questions, let me know.
17 - Adam B.
John, the "reform" groups explicitly argued before the FEC in the FiredUp case that "an organization whose stated purpose is to be the functional equivalent of a partisan campaign organization -- to elect Democratic candidates and to solicit contributions for such candidates -- does not qualify for the press exemption."
Every single commissioner on the FEC rejected this argument, and agreed that FiredUp was indeed a press entity.
Moreover, the "compensation" issue only applies to being compensated by campaigns for the blogging. The FEC's explanation of the regulations make clear that even if a campaign paid a blogger to perform technical/consulting services, the blogger's personal blogging for which he wasn't being paid didn't count as a contribution/expenditure.
John, I fought long and hard alongside the folks from RedState to get these exemptions in place. The FEC could not have been more clear in 2005-06 as to what the new rules were. Please read them.
18 - John Bambenek
Adam-
I read the 2005 advisory opinion and it involves a site that doesn't (unlike Daily Kos) state that their primary purpose is to elect Democrats. Marcos is on record, several other editors are on record, and the site itself states prominently that the purpose of the Daily Kos is to elect Democrats. They don't say report news, they don't say advance an agenda, they say elect Democrats, period. It's a different situation. You can't argue that you're a press outlet, when all over your site you say you're all about electing a certain political party to office. They are incompatible. And that's why its different...
Fired Up and others are commentary sites and act like it. Daily Kos's self-identified purpose is to get Democrats elected. It'd be different if they themselves stated they have another agenda, but they come out and admit they act like a PAC... they can't run and hide simply because they are challenged.
19 - anon
Daily Kos should not have to pretend to be journalists in order to have the first amendment applied to them. All of our campaign finance laws are bs.
20 - Dave Nalle
I'm not sure there IS a site 'exactly like' DailyKos. I will point out that a number of other partisan sites - mostly republican as far as I know - have taken the precaution of filing as PACs, even though they have varied, newslike content.
However, based on the Fired Up complaint, I would think DailyKos would also be exempted. It appears that partisanship is not a disqualifier for being part of the loosely defined 'press'. Now, if JB could prove that DailyKos is directly funded by a political party or PAC - like moveon.org - that might be a different situation.
Dave
21 - Adam B.
Dave, that's correct: if DailyKos were owned or controlled by a candidate, party or PAC, this would be different. It isn't, however.
John: I guess I need to quote at length from the Democracy 21/CLC/CRP argument to the FEC on Fired Up: "Here, the requestor has stated that 'Fired Up intends to endorse, expressly advocate, and
urge readers to donate funds to the election of Democratic candidates for federal, state, and local office.' AOR 2005-16 at 2. It also states that its Web site will contain links to 'Democratic and progressive organizations.' Id. It 'intends aggressively to support progressive candidates and causes at all levels.' ... In short, Fired Up's self-avowed purpose is to elect Democratic candidates to office, and indeed, to solicit campaign contributions for Democratic candidates. These purely partisan goals may be appropriate for a political organization, but they do not qualify a group as a 'press entity.'"
Again, every FEC commissioner rejected the exact claim regarding a site's "purpose" that you're offering now.
22 - John Bambenek
From the opinion:
An examination of Fired Up’s websites reveals that a primary function of the websites is to provide news and information to readers through Fired Up’s commentary on, quotes from, summaries of, and hyperlinks to news articles appearing on other entities’ websites and through Fired Up’s original reporting.
The reform groups tried to derive the intention of Fired Up as partisan... that derivation was rejected. No one needs to derive anything in the case of the Daily Kos, the state their purpose up front.
We'll see how it plays out in front of the FEC... I'm not all the interested in debating it here.
23 - Adam B.
John: Realize what you just cut-and-pasted -- the FEC examined the website itself, and not just cherrypicked quotes about "stated purpose", to determine whether it was a press entity.
24 - John Bambenek
Well, if you're right, it'll be a quick hearing at the FEC... we'll see.
25 - Leslie Bohn
Actually, Mr. Bambenek, you just debated it, and you lost.
This was important news back in March of last year when the FEC ruled (unanimously) on these issues. It was seen as an important victory for the netroots, and more broadly, for freedom of speech. Your complaint won't be seriously considered, and no great gov't expenditure will result from dismissing it.