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Why political bloggers can breathe easier

Internet attorney Eric J. Sinrod explains how political blogs are able to remain exempt from campaign finance regulations.

    The Internet offers a variety of ways for the public to express views and take part in elections.

    Indeed, in my last column, I wrote about how a federal appellate court has blessed vote-swapping sites. This provides a way for voters in different states to ensure the same number of votes for their respective candidates while in the process helping one of their candidates beat yet a third candidate. For example, in the 2000 presidential election, supporters of Al Gore and Ralph Nader could swap votes to help Gore try to beat George Bush in hotly contested states.

    And now I can report that, political bloggers can breathe a sigh of relief, as the Federal Election Commission (FEC) has just resolved two complaints by determining that Internet blogging activities are not within FEC regulation because such activities fall within media and volunteer exemptions to the Federal Election Campaign Act.

    By way of background, starting in the early 1970s, media activity has been exempted from federal campaign finance regulation. Media has been viewed as neutral and not controlled by political interests.

    In early 2006, the FEC clarified that this exemption applies to online media publications. Accordingly, costs incurred in covering the news online generally are not to be deemed contributions or expenditures warranting federal regulation. Of course, to the extent an online publication is owned by a political party, committee or candidate, that would be another matter.

    It appears that some recent developments are providing some flexibility and opening up of activities relating to elections.

    Now let's turn to the first matter recently resolved by the FEC. In that matter, the FEC focused on Kos Media, which has operated the Web site DailyKos.

    The site has charged a fee to place advertising on its Web site. It also has charged for providing "a gift of free advertising and candidate media services" by posting blog entries that support candidates.

    The FEC considered arguments that DailyKos should be regulated as a political committee. However, the FEC rejected these arguments. Instead the FEC reasoned that the site is directly within the ambit of the media exemption and thus is not subject to regulation under the Federal Election Campaign Act.

    The FEC evidently concluded that the DailyKos site is neutral, in that it is not owned or controlled by a particular party, committee or candidate. Indeed, the FEC found that the site met the definition of a media entity and that the Web site activity therefore falls within the media exemption. Indeed, nothing, according to the FEC, about the site is tantamount to a contribution or expenditure that would create political committee status.

    Let's also review another recent matter handled by the FEC. The FEC was called upon to consider allegations that Michael L. Grace made unreported political expenditures.

    Specifically, it was alleged that Grace had leased space on a computer server to create a blog that specifically advocated the defeat of Mary Bono in a November 2006 election. Grace allegedly coordinated these expenditures with Bono's election opponent, David Roth.

    The FEC determined in this matter that there had not been in-kind contributions to Roth's campaign emanating from Grace's blogging activities. Why is that significant?

    In addition to the media exemption discussed above, the Federal Election Campaign Act also exempts from regulation individual volunteer activity. What does that mean?

    FEC regulations make clear that an individual's uncompensated use of equipment or personal services for blogging, creating or hosting a Web site for purposes of influencing a federal election do not constitute expenditures that are subject to campaign finance law restrictions.

    It appears that some recent developments are providing some flexibility and opening up of activities relating to elections. The prohibition on vote-swapping has been struck down by a federal court, and political blogging appears exempt from federal campaign finance regulations.

    What's next? We cannot be sure yet, but there certainly are new and additional ways for people to get involved in the election process.