MURs 5928 and 5853: exemptions apply to political blogs

The Commission has resolved two complaints alleging that Internet blog activity is subject to Commission regulation. The Commission found that the Internet activities in question fell under exemptions addressed in the Commission's March 2006 rulemaking on Internet Communications. Thus, the Commission found that no violations of the Federal Election Campaign Act (the Act) had occurred.

MUR 5928

In MUR 5928, the Commission rejected allegations that the website DailyKos, operated by Kos Media, LLC, should be regulated as a political committee because it charges a fee to place advertising on its web site and provides "a gift of free advertising and candidate media services" by posting blog entries that support candidates. The Commission determined that the web site falls squarely within the media exemption and is therefore not subject to federal regulation under the Act.

Since 1974, media activity has been explicitly exempted from federal campaign finance regulation. In its rulemaking concerning the use of the Internet, the Commission made clear that this exemption extends to online media publications. Under those rules, "any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station, Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication is not a contribution or expenditure unless the facility is owned by a political party, political committee, or candidate ..." 11 CFR 100.73 and 100.132.

With respect to MUR 5928, the FEC found that Kos Media meets the definition of a media entity and that the activity described in the complaint falls within the media exemption. Thus, activity on the DailyKos web site does not constitute a contribution or expenditure that would trigger political committee status. The Commission therefore found no reason to believe Kos Media, DailyKos.com or Markos Moulitsas Zuniga, DailyKos.com's founder and publisher, violated federal campaign finance laws by failing to register and report as a political committee. 2 U.S.C. §§433 and 434.

MUR 5853

In MUR 5853, the Commission rejected allegations that Michael L. Grace made unreported expenditures when he leased space on a computer server to create a "blog" which advocated the defeat of Representative Mary Bono in the November 2006 election. The Commission also found that the respondent did not fraudulently misrepresent himself in violation of 2 U.S.C. §441h.

Under the Act, the term "expenditure" includes any purchase, payment, distribution, loan, advance, deposit or gift of money or anything of value made by any person for the urpose of influencing any election for federal office. See 2 U.S.C. §431(9)(A)(i). As the Commission noted in the Explanation and Justification to its Internet regulations, the cost of placing information on a web site "is often only the time and energy that is devoted by an individual to share his or her views and opinions with the rest of the Internet community." See "Internet Communications," 71 Fed. Reg. 18594 (April 12, 2006). The Commission found that it did not appear that Mr. Grace made any purchase, payment, distribution, loan, advance, deposit, gift of money or anything of value in connection with the blog.

Further, the Act exempts from regulation volunteer activity by individuals. In the FEC's Internet regulations, the Commission clarified that an individual's use, without compensation, of equipment and personal services for blogging and creating or hosting a web site for the purpose of influencing a federal election are not expenditures subject to the restrictions of campaign finance law. 11 CFR 100.155. Therefore, the Commission concluded that, even if some costs or value was associated with the blog, Mr. Grace's blogging is exactly the type of Internet activity that the Commission exempted from the definition of "expenditure" in the Internet rulemaking. The Commission thus also rejected allegations that Mr. Grace coordinated expenditures with Representative Bono's opponent in the race, David Roth, and found that no in-kind contributions to Roth's campaign resulted from Mr. Grace's blogging activity.

The Commission additionally found that materials posted on Mr. Grace's satirical blog would not lead a reasonable person to believe that the blog was created by Mary Bono and, thus, that the Act's prohibition on fraudulent misrepresentation had been violated. The FEC therefore found no reason to believe Mr. Grace or the Roth campaign violated federal campaign finance laws.