Remember two weeks ago, when we were all excited that the the FEC decided blogs could be just as entitled to the same press exception from campaign finance laws as are the New York Times, National Review and Sean Hannity?

Well, hold on.  Because in a concurring opinion issued today, two FEC commissioners indicated a desire to put severe constraints on how sites like this one operate.

I'll explain why in detail, after the jump:

An article from Saturday's Globe has been running through my mind these last few days.  At first the article was sort of innocous yet informative.  However, the more I have thought about the article the more I find that it captures, on a microscopic level, the pull I feel over campaign finance reform.

Remember two weeks ago, when we lobbied for passage of the Online Freedom of Speech Act; lost a tight vote in the House; and Markos was pissed at House Dems?

Guess what: House Democrats listened.  There has been a lot of interest on the Hill in finding ways to adequately protect political activity online while guarding against the possible harms of soft money, and a number of key Congresspersons and their staffs have been actively engaged in trying to work out workable legislative solutions.

I can tell you that no one has taken a greater personal interest in these issues than Rep. Brad Miller (D-NC), who today introduced H.R. 4389.  Let me walk you through what this simple bill accomplishes:

A BILL

To amend the Federal Election Campaign Act of 1971 to exempt news stories, commentaries, and editorials distributed through the Internet from treatment as expenditures or electioneering communications under such Act, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. EXEMPTION OF INTERNET COMMENTARY FROM TREATMENT AS EXPENDITURE OR ELECTIONEERING COMMUNICATION.

(a) TREATMENT AS EXPENDITURE.-Section 301(9)(B)(i) of the Federal Election Campaign Act of 1971 (2 U.S.C. 431(9)(B)(i)) is amended by inserting ''the Internet or'' after ''facilities of''.

(b) TREATMENT AS ELECTIONEERING COMMUNICATION.-Section 304(f)(3)(B)(i) of such Act (2 U.S.C. 434(f)(3)(B)(i)) is amended by inserting ''the Internet or'' after ''facilities of''.

These two clauses would codify yesterday's FEC ruling which confirmed that online media is eligible for the press exception, protecting the ability of citizens to participate in weblogs, podcasting, wikis and any other form of political news, commentary and editorial without governmental interference.  You can be an individual, a group or incorporated, and the protection is not dependent on using a "web log" but just looks at the means of transmission -- the Internet.

That was the obvious part.  But as Rep. Miller told me, he greatly admired sites like Meetup.com and other places that used online mechanisms to encourage citizens to join together in real life and work towards political goals.  So, after doing a good amount of research and thinking, he added to H.R. 4389 the following provision:

SEC. 2. TREATMENT OF ORGANIZATION OF ONLINE MEETINGS AS VOLUNTEER SERVICE EXEMPT FROM TREATMENT AS CONTRIBUTION.

Section 301(8)(B)(i) of the Federal Election Campaign Act of 1971 (2 U.S.C. 431(8)(B)(i)) is amended . . . .

(3) by adding at the end the following new clause:

"(xv) the value of services provided through the Internet in organizing and coordinating meetings of individuals to discuss a candidate or political committee, or to volunteer on behalf of a candidate or political committee, whether the person organizing and coordinating such meetings or discussions acts with or without compensation.

This provision will act to protect such sites that do not engage in news, commentary or editorial activities themselves, but are still a vital part of how citizens use the Internet to affect political affairs.  

In addition, the bill's silence on "soft money" issues would leave such details to the Federal Election Commission to resolve as part of its current rulemaking process.  As Markos, Atrios and I have said, we don't have a dog in that fight; we just want to make sure that citizen activity is protected, and that regulations focus on the candidates, parties and political committees already responsible for understanding and complying with campaign finance law.

Fellow Daily Kos diarist Rep. John Conyers (D-MI) is already co-sponsoring the bill, and I would encourage you to call your own Congresspersons to get on board as well.  For everyone who said, "No one wants to regulate bloggers -- we were just worried about [X]," H.R. 4389 provides an opportunity to follow through with that promise of support.

There will likely be other bills introduced in the coming weeks to help define how campaign finance laws should be applied to the Internet.  Some, from what I understand, may be quite comprehensive and quite good, and I will keep you updated on them.

But I really like the elegance of this bill, which basically asks the Members of Congress to agree that online news and commentary are just as worthy of protection from campaign finance law as those who practice it in print, on tv or the radio.  

People wanted a bill that protected online speech without opening up a "soft money loophole"?  Here it is.

This morning, the Federal Election Commission unanimously approved Advisory Opinion 2005-16, agreeing that the Fired Up! sites were entitled to the same press exception from campaign finance laws as are the New York Times, National Review and Sean Hannity.

You can read the opinion via this PDF link, and our official comments on that draft over here.  Here's your key parts from today's opinion, emphasis mine:

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. Fired Up retains editorial control over the content displayed on its websites, much as newspaper or magazine editors determine which news stories, commentaries, and editorials appear in their own publications. Roy Temple, acting on behalf of Fired Up, not only produces much of the content but also exercises day-to-day control over which stories are featured. Reader comments appearing on Fired Up's websites are similar to letters to the editor and do not alter the basic function of Fired Up.

According to the House report on the 1974 amendments to the Act, the press exception made plain Congress's intent that the Act would not "limit or burden in any way the first amendment freedoms of the press . . ." and would assure "the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns." . . .

Fired Up is a for-profit LLC and is not owned or controlled by any political party, political committee, or candidate. Given that Fired Up's operation of its websites is at the core of its activities as a press entity, its provision of news stories, commentary, and editorials on its websites falls within Fired Up's legitimate press function. Thus, because Fired Up is a press entity, and neither it nor its websites are owned or controlled by any political party, political committee, or candidate, the costs Fired Up incurs in covering or carrying a news story, commentary, or editorial on its websites are exempt from the definitions of "contribution" and "expenditure."  The Commission notes that an entity otherwise eligible for the press exception would not lose its eligibility merely because of a lack of objectivity in a news story, commentary, or editorial, even if the news story, commentary, or editorial expressly advocates the election or defeat of a clearly identified candidate for Federal office. See First General Counsel's Report, MUR 5440 (CBS Broadcasting, Inc.) ("Even seemingly biased stories or commentary by a press entity can fall within the media exemption.")

In addition, as part of its written request, Fired Up! noted that its sites would "endorse, expressly advocate, and urge readers to donate funds to the election of Democratic candidates for federal state, and local office."  The FEC did not challenge this aspect of Fired Up's activities.

What This Means:  Under the Commission's rules, "any person involved in a specific activity 'indistinguishable in all its material aspects'" from Fired Up! can rely upon this ruling unless Congress acts otherwise, and you can imagine what sites might feel better-protected today.  Any such site engaged in news, commentary and editorial can continue in such activities without fear of falling into FEC filing requirements turning groups into political committees or incorporated sites into outlaws.

This is a tremendous victory for online free speech and will impact on the current debate in Congress.  Kudos to Marc Elias and Brian Svoboda of the Perkins Coie law firm who are responsible, as well as the five FEC Commissioners who understood that neither the First Amendment, the statutes nor common sense could tolerate a different result.

I've been traveling lately, so I haven't had time to share some love from the Minneapolis Star-Tribune editorial page:

Editorial: Don't mess up Internet free speech
Keep it exempt from campaign-finance requirements.

When Congress passed the McCain-Feingold campaign-finance law, it took a large step toward wringing excess "soft" money out of federal campaigns. But now the House sponsors of the law, Reps. Christopher Shays, R-Conn., and Marty Meehan, D-Mass., want to extend the provisions of McCain-Feingold to the Internet world of blogs. Their "Internet Anticorruption and Free Speech Protection Act of 2005" is a really bad idea that would actually make speech a lot less free. Instead, Congress should pass the "Online Freedom of Speech Act," which the blogging world supports.

Shays and Meehan argue that unless McCain-Feingold is applied explicitly to the Internet, it will become a place where corporations and unions can spend millions of dollars on advertising for candidates that the law makes illegal elsewhere. Their bill prohibits such spending while also purporting to carve out exemptions that would protect blogs from undue federal interference.

But there are two problems with the Shays-Meehan approach: There is no loophole to close, and their exemptions are a sham.

I help maintain a collaborative blog in Madison, Wisconsin. Madison is in the district of Rep. Tammy Baldwin who has received much scorn from bloggers because of her vote against HR 1606. A local weekly paper called us to comment on Baldwin's choice and the future of blogging. It wasn't until that phone call that we realized that not having protection could affect us, even though we aren't the size of RedState or Kos. We have weighed in with an opinion calling on Baldwin to step up and add an amendment to 4194 that would protect blogs or to kill 4194. I thought it might be of interest to some Kossacks.

Read it here:
Dane101 on legislating blogs.

Kudo's to Markos, Kos for their letter, and Adam B's post.  The message here is simple, the GOP is once again trying to intimidate and/or silence any independent sources of information or authority in this Country.  While the copmlex analysis is appreciated, and the letter to Congress was hopefully, effective, this community needs to remember the sound bite offensive is important "Don't let Shays and the rest of the GOP attack the internet to shut down dissent." this is not really about fundriasing, but independent information.

[I'm posting this on behalf of myself, Markos and Atrios.]

We would rather not be engaging in a tit-for-tat with Reps. Shays and Meehan following their latest response to the joint letter circulated by Markos Moulitsas and Mike Krempasky yesterday. Our preference has always been to work together with those representatives and outside groups sincerely interested in balancing the desire to stem corruption with the need to protect political activity online, and I will continue to speak with anyone interested in alternatives to H.R. 4194 as it is presently constructed.

But that letter demands a response, and it does because of what it reveals. For all their strutting about the "great virtue" of discourse on the Internet, Reps. Shays and Meehan repeatedly attack our letter for "circulating on the Internet" as though the medium alone somehow detracted from the truth of its message, almost as if we had posted it in a bathroom stall rather than faxing it to all 435 Members' offices before posting online.

More to the point, one needs to read the silences of that letter to understand what Rep. Shays and Meehan really mean. They speak of protecting "any communication by an individual made on that individual's website," but say nothing about the overwhelming majority of internet activity, which takes place on other peoples' sites. Of course, the beauty of the Internet is not that it allows every citizen her own podium, but that it creates an infinite array of configurable conference rooms for citizens to meet together and discuss issues of mutual concern. Who owns a Blogspot.com site? An IM chat room? Do Reps. Shays and Meehan intend to protect these activities through H.R. 4194?

Reps. Shays and Meehan speak of the media exemption, flagging it as a question, but offer no answers as to how they believe the protections afforded to magazines, newspapers and talk radio shows should be applied to the Internet. This is a question of great importance whose resolution could dispatch most of our concerns, yet on this key concern they offer nothing.

Thankfully, the FEC itself has spoken to this issue yesterday, agreeing in a draft opinion with our long-stated view that an incorporated website that offers news, editorial and commentary on the Internet which also "intends to endorse, expressly advocate, and urge readers to donate funds to the election of Democratic candidates for federal, state and local office" is entitled to this same strong protection as The New Republic, Fox News Channel and Rush Limbaugh. This FEC opinion affirms our belief that as long as a website is not owned or controlled by a candidate, party or PAC, it ought to be free to be as biased and partisan as it wants. See Draft Advisory Opinion 2005-16 (FiredUp America).

Would Reps. Shays and Meehan agree to codify the view of the Federal Election Commission? Do they object? (Their allies in the pro-regulation community strongly objected to such equal treatment.)

We simply don't know. We also don't know how their bill possibly protects incorporated wikis and podcasters, if the legislation specifically exempts only those incorporated individuals who operate a "web log". Or, heck, how about this direct question: Do they believe H.R. 4194 protects everything that DailyKos.com does right now?

Moreover, they proclaim that group websites are covered by an "already clear definition" of political committee behavior, but nothing could be further from the truth. As former FEC staffer Allison Hayward notes:

There is no "clear definition" of political committee. There is a statutory definition (a group with contributions or expenditures of $1,000 a year, basically) and a contradictory collection of cases interpreting whether there also must be a "major purpose" to "influence elections." What's "major"? What's "influence"? Any "elections" or just federal ones? Depending upon who you ask (Ed Foley, Scott Thomas, or Brad Smith) and what day it is, the answers will be different."

Let me close off by reiterating something that we've said before: many of us do not oppose closing the "soft money loophole" which Reps. Shays and Meehan have flagged. If a bill is presented which extends the soft money rules to the Internet, but also allows for robust protection of citizen activity on the Internet, many of us will support it.

H.R. 4194, in its present form, is not such a bill. Unless it is satisfactorily amended, it must be opposed.

Mike Krempasky of Red State and I have jointly signed a letter (PDF) urging the U.S. House of Representatives to reject H.R. 4194 -- a stealth effort to regulate online political voices by pretending to defend them.

The letter, drafted by our own Adam B, is:

November 9, 2005
Dear Member of Congress,

As bloggers from the right and left, we don't often agree on much. But when it comes to free speech online, we couldn't agree more.

We urge you to oppose H.R. 4194, the Shays-Meehan "Internet Anti-Corruption and Free Speech Protection Act of 2005".  We oppose H.R. 4194 primarily because despite claims by its supporters - it does not in fact offer adequate protections for speech and political activity online.  In particular:

• It would stifle technological innovation.  H.R. 4194 would not adequately protect Internet activity which is not "blogging", such as already-widely used technologies like podcasting, wikis and peer-to-peer networks, let alone the technologies of tomorrow.  In the face of regulatory doubt, no one will want to invest in emerging technologies to enhance citizen participation not clearly protected by the law; and
• It offers no guidance as to the treatment of group political activity, potentially treating all group websites that discuss federal candidates as political committees, with voluminous filing and disclosure requirements, so long as members spent $1000 on server and other costs, an easily-reached amount;
• Its alleged protection to incorporated bloggers offers no real protection.  In comments filed before the FEC, supporters of H.R. 4194 have stated explicitly that those websites which endorse, expressly advocate, and urge readers to donate funds to the election of preferred candidates do not qualify for protection under the law.  In other words, rather than protecting popular sites like DailyKos.com or FreeRepublic, H.R. 4194 would actually force them to seek counsel and comply with voluminous campaign finance law requirements, stifling and chilling grassroots political activity across the Internet.

For those members committed to extending the BCRA rules and regulations to the Internet, it would be preferable to pass no bill at all rather than H.R. 4194, which would only chill free speech and technological growth, and instead wait for the Federal Election Commission to complete its current rulemaking process.

Better still would be to pass H.R. 1606, the Online Freedom of Speech Act.  H.R. 1606 would preserve the status quo which governed the 2004 election cycle, during which none of the fears now trumpeted by H.R. 4194's supporters came to pass.  Moreover, as FEC Vice Chairman Michael Toner has stated, the charge that H.R. 1606 would somehow allow federal candidates to coordinate with corporations and unions to spend soft money funds to purchase Internet banner and video ads on behalf of candidates "has no legal foundation."  As he has explained:

The FEC's regulation exempting the Internet was based on its interpretation of the statutory definition of "public communications" in the McCain-Feingold law. However, neither the FEC's regulation, nor the Hensarling bill, in any way touches the broad statutory prohibition found at 2 U.S.C. Section 441b that bars corporations and unions from making expenditures in connection with federal elections.

The purpose of campaign finance law is to blunt the impact of accumulated wealth on the political process, but this does not occur online. While wealth allows a campaign or large donor to dominate the available space on TV or in print, there is no mechanism on the Internet by which entities can use wealth or organizational strength to crowd out or silence other speakers. Any citizen who wants to establish a website that discusses political matters can do so within five minutes, and their words are instantly available to hundreds of millions of users on an equal basis with every other site.

Moreover, one need not invest millions of dollars to reach people on the Internet. The most popular Web sites are often the cheapest ones, many using the free Blogger.com service to publish their thoughts at no cost at all.  Content is king on the Internet, and the idea that accumulated wealth could have a corrupting influence online demonstrates a profound misunderstanding of how the medium operates or how citizens approach it.

In sum, the Internet now fulfills through technology what the rest of campaign finance reform attempts via law - and this occurred under the legal regime which H.R. 1606 seeks to codify.  We urge you to proceed cautiously, and steer clear of additional restrictions like H.R. 4194 until real corruption becomes evident.  At that point, Congress and the Federal Election Commission will still be around, and can prevent actual problems, and not merely hypothetical ones.  

Before considering support for H.R. 4194, ask yourself this question: if everything its supporters are saying is true, why did no one take advantage of these "loopholes" in 2004?

We urge you to oppose H.R. 4194.

Sincerely,

Markos Moulitsas Zúniga
DailyKos.com

Michael Krempasky
RedState.org