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FEC Hears Bloggers' Bid to Share Media Exemption

By Brian Faler
Special to The Washington Post
Tuesday, July 12, 2005

They go to the political conventions. They cover the White House. Now, some bloggers want the same special protections from campaign finance laws that the mainstream media enjoy.

A growing number of the online pundits of various political persuasions are urging the Federal Election Commission to explicitly grant them the same wholesale exemptions from regulations governing contributions to political candidates that mainstream reporters, editorial writers and pundits get.

"I'm troubled by the fact that participants in this emerging medium, which allows anyone the opportunity to participate in the national political discourse at a minimum cost, would face stricter regulation and stronger scrutiny -- along with the potential for ruinous legal expenses -- than would participants in media outlets owned by large corporations such as Time Warner, General Electric and Disney," blogger Duncan Black told the FEC at a hearing late last month. Black, under the pen name Atrios, runs the liberal blog Eschaton.

Mike Krempasky, who runs a Republican blog called RedState.org, said at the hearing, "What goal would be served by protecting Rush Limbaugh's multimillion-dollar talk radio program -- but not a self-published blogger with a fraction of the audience?"

It is one of several knotty, sometimes arcane but potentially far-reaching issues the six-member panel is now considering. The agency is taking up the issue after a court ordered it to rewrite a number of its regulations, including ones that had left political activities on the Internet virtually free from government oversight. The court did not tell the FEC how to do it, though, giving the agency the freedom to address whatever issues it chooses.

The FEC appears to have settled on about half a dozen issues, the most contentious of which is known as the "media exemption." It refers to provisions that exempt the news media from campaign finance laws, including a nearly 100-year-old law barring corporate contributions to political candidates.

That exemption allows journalists working for corporations such as The Washington Post, Fox News and WTOP to go about their daily business without having to worry about running afoul of the law. Those protections, designed to protect the freedom of the press, allow newspapers, for example, to endorse political candidates without having those writings be considered contributions to the campaigns.

The FEC is now considering whether rules should apply to publications on the Internet. It announced earlier this year that it is inclined to formally extend the exemption to the Web sites of traditional news operations, along with such sites as Slate, Salon and the Drudge Report that exist only online. The panel did not take a position on granting the protection to bloggers, some of whom have incorporated for liability purposes. Instead, the agency asked the public for comments on the issue and held two days of hearings, much of which focused on the exemption question.

Many bloggers say they not only are entitled to those same protections but also will need them to shield themselves from legal harassment.

"If there is no media exemption, what would happen -- and I can guarantee this -- the political blogosphere is a hyper-partisan atmosphere, and everybody would file complaints with the FEC attacking their ideological enemies," said Markos Moulitsas, who runs the liberal blog Daily Kos. "That would require bloggers to lawyer-up, and how many bloggers can do that? Most would probably shut down to avoid it or they'd start blogs anonymously in order to avoid this kind of scrutiny."

But others said bloggers engage in all sorts of activities that are generally forbidden in the journalism community -- working for political candidates, for example, or raising money for candidates -- and questioned whether they should be entitled to the same protections.

"Bloggers want it both ways," said Carol Darr, head of the Institute for Politics, Democracy and the Internet at George Washington University. "They want to preserve their rights as political activists, donors and even fundraisers -- activities regulated by campaign finance laws -- yet, at the same time, enjoy the broad exemptions from the campaign finance laws afforded to traditional journalists."

She and others said they fear that giving bloggers those protections would create a legal loophole that corporations, unions and wealthy individuals could use to pour big money into politics. A company or union, for example, would be able to create or subsidize elaborate blogs attacking political candidates. Or it could create hard-hitting Web videos that, as the popular "Jib Jab" video ridiculing both President Bush and Sen. John F. Kerry (D-Mass.) indicated last year, can attract large audiences.

"If the FEC draws the media exemption too broadly, then it really does run the risk of eviscerating the campaign finance laws," said Larry Noble, the head of the Center for Responsive Politics. "It would potentially let a lot of corporate and labor activity using soft money, fully coordinated with candidates, to go on the Internet. It's also possible that once that starts, if the media exemption is drawn broadly that way, questions will be fairly asked: 'Well, why does that only apply to the Internet? Why doesn't it apply off the Internet?' "

Opponents of regulation responded that the FEC should be more concerned about protecting a medium that has engaged thousands in politics than with trying to ameliorate problems that may never occur. And some bloggers have taken to referring to their sites as "online magazines" -- while pointing to mainstream political pundits who have worked and raised money for candidates -- in an attempt to blur the distinctions between themselves and more traditional media organizations.

The agency could split the difference by deciding, on a case-by-case basis, which sites qualify for the exemption. But Michael Toner, the Republican vice chairman of the commission, said that would still leave many bloggers wondering whether they fell under the agency's jurisdiction.

"We don't decide, on a case-by-case basis, whether some ABC affiliate in Arizona is within the press exemption," he said. "I think the same principle needs to apply to bloggers in this country. I don't think a case-by-case approach provides much comfort."

The commission, which is evenly split between Republicans and Democrats and needs a majority vote to approve new policy, is expected to decide the issue this fall. Ellen L. Weintraub, one of the Democratic commissioners, said the FEC appears to have all but decided against regulating bloggers and is now hashing out what, if anything, it needs to do to protect them against government oversight. The FEC could give all bloggers the media exemption, or it could massage other provisions in the law to provide what some said would amount to similar protections.

But some bloggers said they won't be satisfied with anything other than the media exemption. To do otherwise, Moulitsas of Daily Kos said, would be "creating artificial distinctions between what should be media."

"Keep in mind, this isn't the unbiased, free and fair journalist exemption. It's the media exemption. It applies as much to 'The Daily Show' as much as it applies to partisan pundits as much as it applies to you at The Washington Post," he said, referring to Jon Stewart's satirical news program on cable's Comedy Central. "There's no reason why bloggers should be treated any differently."

© 2005 The Washington Post Company