Bloggers go for the Press Exemption - But is now the time?

The ever vigilant Skeptic's Eye tipped the The Lonely Centrist to the fact that a group of liberal bloggers have filed an advisory opinion request with the Federal Election Commission, seeking to have the FEC declare that they are exempt from the restrictions of the Federal Election Campaign Act (including the McCain-Feingold" provisions added to the law in 2002) on the grounds that they qualify as press entities.

This may not be a wise move, at least not right now. Brad Smith, an FEC Commissioner highly sympathetic to their position, has recently resigned and has not been replaced, so the normally six member Commission is down to just 5 members. But under the FEC's rules, it still requires 4 Commissioners to approve an advisory opinion. In 2002, the FEC passed a regulation exempting the internet - and therefore bloggers - from most regulation. In doing so, they did not rely on the press exemption, but on the more obvious fact that the statute doesn't mention regulation of the internet. The House sponsors of McCain-Feingold - Representatives Chris Shays (R-Ct.) and Marty Meehan (D-MA)challenged this exemption in court (with the support of Senators McCain and Feingold), claiming that the internet was covered under a catch-all provision in the statute applying to "any other form of public communication." They won. Three members of the FEC, including Smith, wanted to appeal that decision, but the Commission's three Democrats voted against filing an appeal.

So there are at least three members of the Commission - Chairman Scott Thomas, and Commissioners Ellen Weintraub and Danny McDonald - who are doubtful about the wisdom or propriety of exempting the internet. To get an the Commission to issue an advisory opinion exempting bloggers under the press exemption will require votes of at least four Commissioners. If Smith were still on board, that would mean just one of the three would have to support the bloggers request, assuming that the three Commissioners who voted for the internet exemption before would vote to give the bloggers an exemption. Given her comments on the issue in the link above, Weintraub seems likely to make that jump. But with Smith gone, however, at least two of these three will have to join with pro-internet speech Commissioners Dave Mason and Michael Toner. In other words, Smith's empty seat is the equivalent of a vote against the bloggers' request.

Also, two of the three commissioners who have voted against a broad internet exemption - the two viewed as most hostile to a deregulated internet, Thomas and McDonald - are due to be replaced soon. If the bloggers really want the exemption, holding off on this request might make sense. But then, maybe they are devilish - maybe they want the FEC to rule against them to force the issue in court.