Daily Kos passed its regulatory test with flying colors.  In no time—by agency standards, by the speed of light—the Federal Election Commission agreed that Daily Kos qualified for the media exemption.   A complaint, weakly arguing to the contrary, made a quick trip to the archives, virtually dead on arrival.

     This part comes without surprises.  Adam Bonin made the case for his client thoroughly, and the odds—the merits—were solidly in his favor. In posting the results, Bonin raises the more interesting question—how it is that bloggers should be "put through" this trial-by-accusation.  Attacks like the one he fended off are, he rightly says, time-consuming and it is unpleasant by to "live under the threat of FEC sanction."  The law on which Kos relied, embedded in rules approved by the FEC in 2005, is "pretty damn clear," enough so that it strikes Bonin as disgraceful that Kos should have been put to the trouble and expense of a defense. 

     The answer to this is that Adam is both right and wrong:  rightly aggrieved by the experience, and mistaken, I believe, to imagine that any port is safe within the vast expanse of the regulatory regime.  The FEC applied the standards in this instance without further investigation:  it might have chosen differently, and those same standards would not have precluded this further, exploratory surgery.  Live by the media exemption, or any act of regulatory grace, and you may not necessarily die by it, but for sure, you will live within its shadow.  Someone, at some time, will call on you to show that you are entitled to the benefits bestowed on you.  And it will not be the only time that this demonstration will be called for.

     Not to say that it did not deserve this happy ending, Daily Kos has enjoyed in all this the upper hand, being visible and powerful and able, at the drop of a posting, to mobilize a furious counteraction to any agency excesses.  The FEC has all sorts of uses for its in-boxes, and it acted quickly here to keep them clear of vitriolic protest.  What about the next blogger, if the complainant attempts to show that there are unique and differentiating circumstances:  a striking fact or collection of facts, or any superficial basis for further inquiry, prolonging the agency’s visit through the issuance of subpoenas or interrogatories?

     The law on this may be "pretty damn clear," but the emphasis ought to remain on the "pretty."  It is not clear that the law is accurately summarized, as Adam does, as protecting "online grassroots political activity."  It protects a fair amount of it, but only conditionally, and the question of whether it was conducted as required—not to mention the special case, or the next generation of innovations—can always be brought before the agency.  This is the reason why in this space, I argued for more sweeping policy to keep Internet activity beyond the reach of regulators until and unless Congress acted by statute to force the issue. Even better, Congress could have supplied the necessary protections and done more to keep the FEC busy with other chores.

    But now we have rules, and that which is decreed can be withdrawn in favor of a new decree issued in its place.  One of the key regulations approved by the FEC is entitled "Uncompensated Internet activity by individuals that is not a contribution."  11 C.F.R. § 100.94.  In other words, room has been cleared for this specified activity:  room for interpretation, with room, too, for identifying activity that is a contribution.  There is also play in the joints of the press exemption:  it requires for its affirmative application a factual inquiry, and as loath as the FEC is to pronounce a media-seeming entity not to be a media organization, it has the power to do so (subject, of course, to litigation). 

     How the regulatory regime makes itself felt is seen in one of the central exchanges between Daily Kos and the complainant in this matter.  The complaint by John Bambenek is a crude bit of work, and its principal thrust is to show that Daily Kos must be a political committee because it professes its purpose to be that of electing candidates to federal office.  Bambenek cites Kos statements such as "It's a Democratic blog with one thing in mind:  electoral victory''; and "So the purpose of the site is 1) to elect Democrats, while 2) reforming the party, opening it up, and making it more responsive to its members, and then 3) to elect reform Democrats and create a progressive Democratic majority.''   Complaint at 2.
 
      Bonin bats this away ably. What he argues is of interest, in considering the rules overall, because he must insist that what Daily Kos says about its purpose does not matter and should in any event be discounted.

[The complaint’s] arguments regarding the "self-identified purpose" of the site do not square with the Commission’s approach, which is to look at what the site does. [citations omitted] Indeed, if the sole test of "purpose" was to look at self-serving mission statements, it would lead to the absurd result of true political committees escaping FEC scrutiny by simply providing false explanations as to their purported goals.

Bonin response at 7.

    Now this argument is a fine one, and Bonin was correct to put his bet on how the blog operates, reads and looks, and not on how its mission is described.  But his brief for the defense compels him to characterize these statements of purpose as "self-serving."  He must distance the site’s presentation to the regulators from any express embrace of its election-related, its openly partisan, purpose.  It is a small price to pay for victory. 

     Moreover, this deflection of any imputation of purpose is, as Bonin states, the "Commission’s approach" now.  But it is not one that the agency must necessarily apply in all cases, in the face of all types of statements of "purpose" in all conceivable circumstances.  The statute does hinge on "purpose," which is after all the very heart of the dispute over the application of the law to "527s," and there statements of purpose—even wispy intimations of purpose—are considered centrally significant.  

      For the time being, it has all worked out for the best.  It helps to have this case now done and settled the right way, because one more precedent has been added to the body of law available to the next blogger mounting a defense before the FEC.  Let the next blogger do as well and be as well represented.  But there will be a "next," and when it comes around, we may see that the strength of the protections should not be over-estimated.

     Nor should the political strength of the respondent be underestimated.  John C. Bambenek v. Daily Kos:  the outcome was never in doubt.

Bob Bauer