November 18, 2005

Significant FEC Advisory Opinion Gives Breathing Room for Election-Related Blogging, For Now

Yesterday the FEC approved by a 5-0 vote Advisory Opinion 2005-16 (Fired Up!). This development apparently received no coverage yet in the mainstream media, though you can find good analysis in the blogosphere by Adam Bonin, Bob Bauer, and Allison Hayward. The opinion gives an election-related website (or blog) with a definite partisan position the ability to claim the same exemption from certain campaign finance laws that the mainstream press may claim when reporting or editorializing on election-related issues.

This is an important development, because---at least for the time being---it gives some breathing room to political blogs. One of the concerns I had was a significant chilling of election-related activity in the 2006 elections out of fear that complaints would be filed with the FEC at a time of regulatory uncertainty (the FEC internet rulemaking remains pending). It may be that the FEC rules (which could well be adopted by an FEC comprised of up to four new commissioners) will differ in some respects from the position of the FEC AO in Fired Up!. But in the meantime this looks like good news for political bloggers. Perhaps most significantly, the FEC rejected the arguments of some in the reform community that the partisan nature of the speech should be relevant to the speech exemption. As I have argued, this was neither a workable nor desirable test to separate the press from everyone else.

Posted by Rick Hasen at November 18, 2005 07:49 AM