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Sens. Barbara Boxer and Jim DeMint are examples of the way political election campaigns now have a permanent footing. Both Senators have full-featured re-election sites that include petition drives and other community and advocacy efforts. In fact, it is getting more difficult to distinguish these sites from their official Senate sites. IÃ¢â‚¬â„¢d provide a link to them to show you, but thereÃ¢â‚¬â„¢s the rub.
We recently asked legal counsel whether it would be permissible for a non-profit c(4) web site like FreedomWorks to link to one of these campaign sites in support of its off-election year policy objectives.
Counsel advised that, while there is no official Federal Election Commission (FEC) advisory on the matter, it is highly possible that the FEC would find a link to a campaign committee petition to be illegally aiding reelection.
That's what we figured, but it is still really annoying. As a non-profit that is not a conventional media entity, FreedomWorks does not enjoy the full exercise of the First Amendment. (Thanks again, Senators McCain and Feingold and friends). Again, IÃ¢â‚¬â„¢m not talking about calling for a candidateÃ¢â‚¬â„¢s election or defeat, or other types of regulated speech, but about placing a web link to another web siteÃ¢â‚¬â€ one of the most basic elements of the internet.
On the positive side, though, of late the FEC seems to be keeping its hands off of more traditional political blogs. This September, the FEC affirmed the media exemption for the left-wing super-site DailyKos. In that decision the FEC determined that the DailyKos Ã¢â‚¬Å“falls squarely within the media exemption and is therefore not subject to federal regulation under the Act.Ã¢â‚¬Â
So free speech lives online, but only if you are organized as a media company. The FEC has a two part test for determining whether a web site meets the media exemption. The first is whether the site is owned or controlled by a political party, campaign committee, or candidate. The second is whether the site is conducting Ã¢â‚¬Å“legitimate press function.Ã¢â‚¬Â
The FECÃ¢â‚¬â„¢s thinking in the DailyKos case is interesting, so IÃ¢â‚¬â„¢ll reprint part of it:
Kos Media qualifies as a media entity in its function of operating DailyKos. DailyKos is available to the general public and is the online equivalent of a newspaper, magazine, or other periodical publication as described in the Act and Commission regulations....An examination of DailyKos and other supporting materials demonstrates that the siteÃ¢â‚¬â„¢s primary function is to provide news and commentary to millions of viewers through its Ã¢â‚¬Å“blogÃ¢â‚¬Â entries providing news stories with links to Ã¢â‚¬Å“breaking news,Ã¢â‚¬Â original political commentary, and calls to action.
Like traditional media outlets such as newspapers and magazines, DailyKos has a publisher, Moulitsas, who appears to retain editorial control over the content of the site, and a list of contributing editors, who along with Moulitsas appear to be Ã¢â‚¬Å“front page postersÃ¢â‚¬Â and draft stories. Further, registered users of DailyKos may post responsive comments, which are similar to letters to the editors in traditional media outlets.
However, FreedomWorks and many other non-profit groups also have blogs and meet some or all of the standard the FEC used for DailyKos. So having the federal government running around determining what web site is a media company will get muddled really quickly. Further, as markets like Google AdWords make pricing more transparent, the value of advertisements and links is increasingly known. The flip-side of this coin is the old media New York Times getting caught giving discounted ad rates to MoveOn.org. As the web and the offline world become more intermixed, and as the internet begins to decide more election outcomes, do we really think the feds can (or should) be attempting to regulate all of this?
IÃ¢â‚¬â„¢m rooting for technology and mass participation to swamp and render moot todayÃ¢â‚¬â„¢s federal campaign speech restrictions. Until that happens, though, I canÃ¢â‚¬â„¢t publish a link to an interesting web site.