He’s remarkably impressive in his determination to demonstrate how ignorant he is:
The FEC, in their ruling said “First, the complaint does not allege, nor does publicly available information indicate, that Kos Media is owned or controlled by a political party, committee, or candidate.” (Page 5, lines 17-18). They state this because if there was such an allegation or if Kos Media was a political committee, the media exemption doesn’t apply. The problem is the entire complaint’s sole focus is the fact that Kos Media is a political committee. That was exactly what I alleged. They simply ignored that, pretended I was alleging something else, and dismissed the complaint. This means with about a two-page long pleading and a $350 filing fee, this decision could be overturned trivially on appeal.
So go for it, John. Don’t just act like a fool, be the fool. In fact, if you do get it turned over on appeal, I’ll pay the $350.
The point is the law always had a press exemption and Daily Kos fits that press exemption the same way Fired Up! did.
From the Fired Up! Opinion:
The Act and Commission regulations define the terms “contribution” and
“expenditure” to include any gift of money or “anything of value” for the purpose of influencing a Federal election. See 2 U.S.C. 431(8)(A) and (9)(A); 11 CFR 100.52(a) and 100.111(a). However, there is an exception for “any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication . . . unless the facility is owned or controlled by any political party, political committee, or candidate[.]” 11 CFR 100.73, 100.132; see also 2 U.S.C. 431(9)(B)(i). This exclusion is known as the “press exception.”The Commission has applied a two-step analysis to determine whether the press exception applies. First, the Commission asks whether the entity engaging in the activity is a press entity as described by the Act and Commission regulations. See, e.g., Advisory Opinions 2004-07, 2003-34, 2000-13, 1998-17, 1996-48, 1996-41, and 1996-16. Second, in determining the scope of the exception, the Commission considers: (1) whether the
press entity is owned or controlled by a political party, political committee, or candidate; and (2) whether the press entity is acting as a press entity in conducting the activity at issue (i.e., whether the entity is acting in its “legitimate press function”). See Reader’s Digest Association v. FEC, 509 F. Supp. 1210, 1215 (S.D.N.Y. 1981); FEC v. Phillips Publishing, 517 F. Supp. 1308, 1312-1313 (D.D.C. 1981); Advisory Opinions 2004-07, 2000-13, 1996-48, and 1982-44. Two considerations in applying this analysis include whether the entity’s materials are available to the general public and are comparable in form to those ordinarily issued by the entity. See Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238, 251 (1986); Advisory Opinion 2000-13 (concluding that a website covered by the press exception was “viewable by the general public and akin to a periodical or news program distributed to the general public.”)====
According to the House report on the 1974 amendments to the Act, the press exception made plain Congress’s intent that the Act would not “limit or burden in any way the first amendment freedoms of the press …” and would assure “the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns.” H.R. Rep. No. 93-1239, 93d Cong., 2d Sess. at 4 (1974) (emphasis added). Consistent with this intent, the Commission has already expressly extended the press exception to qualified activities that appear on the Internet. For instance, in Advisory Opinion 2000-13 the Commission found that iNEXTV, a company operating a network of specialized news and information websites with limited original content, qualified for
the press exception through its Internet activities even though it lacked a traditional “offline” media presence. The Commission concluded that iNEXTV and its EXBTV website were press entities “both as to their purpose and function.” Advisory Opinion 2000-13. The Commission characterized the network of news and information websites operated by iNEXTV as “webcast video periodicals.” Id. In finding EXBTV to be a press entity, the Commission noted the “news function” that EXBTV provided through direct access to news and commentary. The Commission concluded that the website was “viewable by the general public and akin to a periodical or news program distributed to 10 the general public.” Id.The Commission reaches the same conclusion here with respect to the Fired Up websites described in your request. Thus, Fired Up is a press entity and satisfies the first step of the press exception test.2. Ownership Criteria and Legitimate Press Function
11
Fired Up is a for-profit LLC and is not owned or controlled by any political
party, political committee, or candidate. Given that Fired Up’s operation of its websites is at the core of its activities as a press entity, its provision of news stories, commentary,and editorials on its websites falls within Fired Up’s legitimate press function.Thus, because Fired Up is a press entity, and neither it nor its websites are owned or controlledby any political party, political committee, or candidate, the costs Fired Up incurs in covering or carrying a news story, commentary, or editorial on its websites are exempt from the definitions of “contribution” and “expenditure.” The Commission notes that anentity otherwise eligible for the press exception would not lose its eligibility merely because of a lack of objectivity in a news story, commentary, or editorial, even if the news story, commentary, or editorial expressly advocates the election or defeat of a clearly identified candidate for Federal office. See First General Counsel’s Report, MUR5440 (CBS Broadcasting, Inc.) (“Even seemingly biased stories or commentary by a press entity can fall within the media exemption.”)The Commission expresses no opinion regarding the application of State law or
the Internal Revenue Code to the proposed activities because those questions are not within the Commission’s jurisdiction.This response constitutes an advisory opinion concerning the application of the
Act and Commission regulations to the specific transaction or activity set forth in your request. See 2 U.S.C. 437f. The Commission emphasizes that, if there is a change in anof the facts or assumptions presented, and such facts or assumptions are material to a conclusion presented in this advisory opinion, then the requestor may not rely on that conclusion as support for its proposed activity.
By the fact that Daily Kos isn’t owned by a committee and fits the definition of press, it’s exempt from being classified as a political committee. It cannot be a political committee because it is a press outlet. Beyond that, it’s one person, and one person does not constitute a committee.
That Bambenek appears to not have read the relevant decisions that have been supported by the courts demonstrates his desperate need for attention regardless of whether he makes himself look like a fool.
You miss the point. Exception 1 is exactly what I’m claiming… that Kos Media is a political committee first and foremost. That they happen to blog isn’t what makes them such, it’s just how they act as a political committee.
Also, read Kos’ affidavit and his lawyers filing, not only is their Markos, he has a tech guy, and if you want to count them, the 15 editors. Even if you count just 2, that’s enough. But then again, I didn’t name Markos, I named his company and corporations aren’t individuals.
John,
And I mean this, you are probably the densest person I’ve ever seen.
Kos Media, an entity owned by one person, cannot be a committee for two reasons. First, there is a sole owner. Sole owners may have people who work for them, but he is sole owner and that is the relevant point. Second, it qualifies for the media exemption so even if there were more people involved, it’s not a political committee of any type. Hence, it’s not a political committee.
As the Fired Up! ruling stated:
he Commission notes that anentity otherwise eligible for the press exception would not lose its eligibility merely because of a lack of objectivity in a news story, commentary, or editorial, even if the news story, commentary, or editorial expressly advocates the election or defeat of a clearly identified candidate for Federal office. See First General Counsel’s Report, MUR5440 (CBS Broadcasting, Inc.) (“Even seemingly biased stories or commentary by a press entity can fall within the media exemption.”)
+++++++++++++
Read before you waste everyone’s time.
[…] First this week came word that supreme time-waster and hypocrite extraordinaire John Bambenek’s crass FEC attack against the Daily Kos blog was so meritless that the FEC not only unanimously rejected the complaint but did so in such a fast turnaround time that it seemed to catch a bunch of folks by surprise. Apparently it’s easier for the FEC to point out the facts to Mr. Bambenek than it is for him to understand them. He’s still whining about it and now threatening a useless appeal to the ruling because he thinks the FEC didn’t understand his complaint. Here’s a clue, John: it’s the other way around. Go figure. […]
A group is a group no matter how many people own it. If the DNC or RNC were organized as an LLC, it would not cease to be a group if only one person owned it. That’s just stupid.
I’ve read the FiredUp ruling, read my complaint and at least make an attempt to figure out why I’m arguing that it’s not relevant. In particular pay attention to the exceptions.
===A group is a group no matter how many people own it. If the DNC or RNC were organized as an LLC, it would not cease to be a group if only one person owned it. That’s just stupid.
I’m not really sure where to start with this, but political parties are defined in law as a particular type of not-for-profit corporation that cannot be owned by a single individual as a LLC can be. In fact, any political committee taking donations has to fall under different categories of organizations that are not-for-profit status.
Now, where you don’t seem to grasp the point is that an individual can spend whatever they want as individuals and not coordinating with anyone else as they wish unless they are a candidate themself. As such, and LLC run by a single individual who is not a candidate does not qualify as a committee. This is why the law refers to committees. Buckley v. Valejo established that individual spending is simply free speech. It is when they join together with others to influence elections that they form a committee. This is a substantive discussion that is rather basic to understand.
So, given Kos Media, LLC, is a single person operation, it cannot be a political committee by definition. Very simple.
Second, it is a media outlet as defined by the law. So it cannot be a political committee because it has the media exemption. It doesn’t matter if a media source is biased or works towards the election of particular candidates or parties, it is still a media source and as such cannot be a committee. The only way that doesn’t apply is if a political committee creates a media source and runs it as a part of the operation of that committee. So, if the Republican Party starts a newspaper, it would still be subject to the rules of disclosure for the paper. If a Republican supporter runs a newspaper, they are a media source.
As mentioned earlier, the initial newspapers in the United States and those through the early part of the 20th Century were exactly the kind of partisan media sources that the Daily Kos is and so the First Amendment protects them from regulation.
Your complaint is ignorant of the law and history. Heckuva job.
I’m sorry, reading election law, I’m not entirely sure where you get that definition. I get the part about individuals… that’s why I argued the PC route. We can discuss what the FEC said, but that doesn’t change the fact that they clearly got my complaint wrong and that error means I can appeal.
I do have to say that your retort about initial newspapers is the best rebuttal I’ve seen yet. Better than Kos, and sorry I didn’t get the chance to say that earlier. But again, if you want to argue what the law should be, that’s an entirely different discussion. I’m not a fan of how the FEC runs things either, and I’m sure we’d probably agree on what should be in its place. But you have to deal with what the law is, not what you’d like it to be. I think McCain-Feingold (at least the censorship parts) are total BS and unconstitutional, but its still the law of the land.
Two, if you read the media exemption there are conditions to it, namely if a political committee owns it, operates it, etc, it doesn’t get the media exemption. If the FEC said that they disagree with the allegation that Kos is a PC, then I’d probably have very little to appeal on. But I did so allege which makes the media exemption irrelevant. In fact, you’ve quoted the relevant portion, “Second, in determining the scope of the exception, the Commission considers: (1) whether the
press entity is owned or controlled by a political party, political committee, or candidate;”… you read that, right?
You’re right, if the RNC operates a paper, it’d be subject. That’s why I argued the Kos Media is a PC to begin with, it bypasses the media exemption until that question is resolved. That question was ignored which gives me an easy appeal. Now, I’ll grant you, even if I appeal and the FEC has to do it again, I still may lose. However, they way they closed this was so sloppy that it makes it easy to get a court that says go back and try again.
But again, read Kos’ affidavit… it isn’t a single person operation. Read Kos’ own words on that point. Don’t trust me, read it for yourself. It’s simply not true. If you take the affidavit at face value it’s either 2 or 17, depending on if you want to count the editors. I’m not making it up, it’s Kos’ affidavit, not mine.
—–Markos Moulitsas Z6niga (“Moulitsas”) founded the website Daily.Kos (http://www.dailykos.com) in on May 26,2002.’ In November 2004, Moulitsas transferred.ownership to Kos Media, LLC, a limited liability corporation organized under the laws of the. state of De]aware,.of which he is the sole owner. The site is neither owned nor controlled political, party, political committee, or candidate, but by Kos Media alone.’
I’ve read it. He is the sole owner.
===Two, if you read the media exemption there are conditions to it, namely if a political committee owns it, operates it, etc, it doesn’t get the media exemption. If the FEC said that they disagree with the allegation that Kos is a PC, then I’d probably have very little to appeal on. But I did so allege which makes the media exemption irrelevant. In fact, you’ve quoted the relevant portion, “Second, in determining the scope of the exception, the Commission considers: (1) whether the
press entity is owned or controlled by a political party, political committee, or candidate;”… you read that, right?
Right…and I explained above that it was inoperable because it relates to whether or not a committee runs a media source. If it is just a media source, it’s not a committee. Some media sources are run by political committees. Some are not. Those that are not, but advocate for political outcomes are not a political committee by definition. They are the media and the court case is referenced in the Kos brief.
Regulations would not pass Constitutional muster otherwise. The Courts have ruled on this repeatedly. The Constitutionality of campaign finance regulations are based on two basic things. 1) That media can do what it wants as long as it’s not controlled by the party. 2) That individuals have the right to spend their money on advocacy as they see fit and only have to disclose when they are joining with others or a candidate themselves.
What is this sole owner crap… it means nothing. A group is a group no matter who the group identity is owned by. You’re pulling this ownership thing out of thin air.
You may be right on the ultimate outcome of this… however, the appeal wouldn’t address the merits because the FEC simply didn’t address the complaint. Had they written what you just did, I’d have fewer appeal options.
However, the definition you argue for is circular. Media outlets can’t be regulated because they aren’t part of political committees. But political committees can’t be declared such if they have media outlets. That would be the sole argument I’d appeal on if it got there and it’s messy as hell with no clear conclusion.
I filed the complaint to avoid it, saying Kos Media is a political committee and essentially self identifies as such, so the media exemption doesn’t apply on its face simply because they have a media outlet at DailyKos.
I’m much more subtle and sneaky than you’re giving me credit for.
===What is this sole owner crap… it means nothing. A group is a group no matter who the group identity is owned by. You’re pulling this ownership thing out of thin air.
No. This is where you don’t understand the precedent. Buckley was primarily discussing individuals spending money on their own campaigns, but the larger precedent was that individual speech cannot be regulated and spending money for that speech is protected. The requirement for disclosure comes in the way of a candidate or people who join together to campaign. Hence, the ownership issue is critical to the first condition under which something is a committee or not. It doesn’t matter if other people work for someone-as few people own printing presses, it matters whether the effort is the work of one individual whether that individual has incorporated or not.
Go talk to an election lawyer. They will tell you this same thing if perhaps in a different way.
-===You may be right on the ultimate outcome of this… however, the appeal wouldn’t address the merits because the FEC simply didn’t address the complaint. Had they written what you just did, I’d have fewer appeal options.
Actually the did explain it, they just felt it irrelevant to the ultimate outcome since the media exemption applied:
Kos Media’s operation of DailyKos may be excluded from the definition of “contribution” or “expenditure” und
either I 1 C.F.R. 8s 100.94(a) and 100.153 a), which apply to uncompensated Internet activity, or 1 1 C.F.R. $5
100.94( d) and 100.155( d), which apply to incorporated bloggers. Because Kos Media was formed as an LLC,
application of the appropriate regulations depends upon how
Kos Media elected to be treated by the Internal
Revenue Service and whether Kos Media has issued publicly traded shares. See 1 1 C.F.R. 0 1 lO.l(g)(3). If Kos
Media chose to be taxed as a corporation or if its shares are publicly traded, then Conmission regulations would
Kos Media as a corporation and the exception provided for incorporated bloggers, 11 C.F.R. $8 100.94(d) a
treat 100.155(d). would apply. Otherwise:
1 1 C.F.R. $3 100.94( a) and 100.155( a) would apply. Because the as to Kos Media’s tax status at this stage of the enforcement process. Coi~iniission does not have inforination applying the media exemption appears
to be more appropriate at this time.
Speak to an elections lawyer. You don’t know what the fuck you are talking about.
====However, the definition you argue for is circular. Media outlets can’t be regulated because they aren’t part of political committees. But political committees can’t be declared such if they have media outlets. That would be the sole argument I’d appeal on if it got there and it’s messy as hell with no clear conclusion.
No, you don’t understand again. I layed it out using very basic rules of logic for you. A media source can be owned by a political committee or it can not be owned by such. If it is owned by such then it is subject to disclosure under the committee’s responsibilities. If it is not otherwise owned by a committee, it qualifies for the exemption. IOW, unless there is something to the operation besides a media source, it qualifies for the media exemption.
This is all in the relevant law and the decision. You need to talk to an election lawyer who knows something about the subject. You are embarrassing yourself.
No, what an election lawyer would tell you is that the CFR in question (footnote 8 which you cited), says that an incorporated entity of one or more owners (note the or more part) for purposes of the law counts as an individual uncompensated activity as long as all the expenditures and contributions take place online. This is basically another iteration of the “Internet Dispensation” where rules and regulations that apply to other media to which no one complains suddenly become a dire threat to the fate of Western Civilization when they might be applied to the Internet.
More importantly, however, is that those CFR’s which you site very clearly say the number of owners simply don’t matter. It could be one owner, it could be 3,000 owners, it could be owned by every man, woman and child in America. Entirely irrelevant.
And this campaigning crap is also irrelevant. There are three types of groups that the FEC regulations. Campaigns, Parties, and Committees. There are thousands of committees, not all are attached to campaigns. Many support a whole bunch of campaigns. For instance, the Club for Growth who was just fined by the FEC.
Explain to me the qualitative difference between what the Club for Growth does and what Kos Media does without taking into account the media the choose.
===And this campaigning crap is also irrelevant. There are three types of groups that the FEC regulations. Campaigns, Parties, and Committees.
Wrong. I cited the wrong one above and it’s part of the problem with your complaint. A partnership, which the LLC Kos operates is, does not qualify as any of the three. It would qualify under form 5 and not Form 7 which a corporation would file under. IOW, as an individual/partnership, if Markos was making independent expenditures, he would not be a political committee. He would be an individual/partnership that would file entirely differently.
That said, Daily Kos is a media outlet with your example making the point quite well. Club for Growth takes donations from others, does not operate at a profit, operates only as a political committee with no other purpose such as profit, spends money in other media sources to promote candidates that it does not own, and contributes money to other candidates and committees.
[…] November 19, 2007 in John “academic professional” Bambenek by robnesvacil Upon losing an FEC complaint which he originally announced with all the hoopla of a Dancing With the Stars promo claiming that the progressive Daily Kos blog was a political entity rather than the media outlet it is, conserv-o-partisan John “Myopic and Fuzzy” Bambenek got on his high horse and threatened to take the issue to Federal court so he could shoot spitballs there instead. […]
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