John Bambenek is filing a complaint with the Federal Elections Commission against The Daily Kos, arguing that they are acting as a political committee and should be subject to FEC rules as such.
While I’m loathe to defend The Daily Kos and their hoards of raving, ravenous partisans, using the FEC as a hammer against political groups is a very bad idea. Bambenek explains his rationale in this way:
I first thought of this complaint during the Cindy Sheehan debacle over at Daily Kos, where Cindy pledged to run as an independent against Nancy Pelosi, and the Daily Kos basically turned on her. While some conservatives took great delight in this, I really didn’t care because it’s politics as usual. The right has thrown their fair share of people under the bus for not drinking the Kool-aid too.
However, the statement that the DailyKos was about electing Democrats stuck with me. I always assumed it was a standard left-wing group blog spouting the latest and greatest in left-wing diatribe. However, the statement that the blog exists to get Democrats elected is repeated in various places around the site, including statements by Kos himself.
Federal Election Commission rules apply for organizations that spend or contribute an equivalent of $1,000 per year in trying to influence elections for federal office. DailyKos is owned by Kos Media, a company, which makes it fit the definition of an organization. It surely spends at least $1,000 per year in hosting and based on what they charge (and get) for advertising, their support of candidates is certainly worth over $1,000 per year. Lastly, their self-identified purpose is to influence elections in the Democrats favor. They fit the criteria.
Some will argue that this is a slippery slope that will snare all bloggers. First, most bloggers aren’t organizations. Second, most bloggers are read by like 3 people and their posts are certainly not worth $1,000. Third, most bloggers don’t exist for the primary purpose of electing certain people to federal office.
Neither of those three are necessarily true — for example, Power Line is an organization of three writers located in different places. Power Line is one of the most influential blogs out there, worth well more than $1000, and they’re certainly a generally pro-Republican site (even if their goal isn’t specifically to get Republicans elected). Should Power Line be subject to the FEC?
Now granted, there’s some evidence that Kos’ recent warning to his fellow bloggers to “tone it down” might be a sign of collusion between Kos Media and Democratic operatives — that’s a much closer case. In cases where a blog is acting as nothing more than an agent of a political party, it’s a lot harder to argue that they shouldn’t be subject to FEC regulations. However, there’s still a question of just how much collusion there must be — simply getting one’s information from a party press release shouldn’t be enough. Talking with candidates or party officials shouldn’t be enough. Even if Kos Media has been pressured by Democratic Party leaders to keep the crazy to a minimum, is that enough to make The Daily Kos liable to FEC regulation?
I don’t think it’s categorically out of the question to subject a blog to FEC rules — at least not under the current state of the law — but to do so raises all sorts of problems in terms of how much protection political speech on the internet should have. I can’t stand The Daily Kos — I think that it’s a left-wing hate site that magnifies political vitriol and poisons our democracy. At the same time, I don’t want to have government further infringing upon the crucial democratic right to political speech. The Founders realized that political speech was absolutely essential and should be strongly protected — and even though the Kossacks are little better than the most vilest pamphleteers of the Founder’s day, they still deserve the same level of protection.
The answer to political speech that one doesn’t like isn’t to try to censor it, it is to speak back, and to do so more logically and respectfully than the other side. Fighting speech — even hate speech — with government censorship or regulation chafes against the First Amendment and should be done only in the most extreme of circumstances. Bambenek’s attempt to stifle The Daily Kos is understandable on some levels, but ultimately wrong. The government should not be in the business of regulating political speech on the internet so long as that speech is not threatening or in clear violation of the law — The Daily Kos may be disgusting, juvenile, and paranoid, but that hardly warrants the heavy hand of government placing a gag over it.
UPDATE: Eugene Volokh has more on the legal aspects on why bloggers are currently exempt from FEC regulation.