Thanks to Kemprasky for posting the softcopy. Odd how the FEC's version is scanned in.

I do not want to discuss this here, only propose some approaches to the discussion.

Well, I think anyone should be skeptical when an outcome is proposed as a "win-win-win" solution. By statute and by judicial review, our society has determined that absolute free speech can be constrained during political campaigns. One of the main objectives of the Bipartisan Campaign Reform Act, as Feingold elaborated on MyDD two weeks ago, was "reducing the corrupting influence of big money donations."

I'd like to see people looking at this who say, "Is there a way for the law to be exploited which would violate the spirit of campaign finance reform?" (aka when does astroturf replace grassroots). I think that Chris Nolan and Zephyr Teachout have posted some concerns about that here. Would GOPUSA qualify as an exempt site, for example?

The document gives many questions. (e.g., "The Commission seeks comment on this approach. Should bloggers be required to disclose such payments?") I'd like to see someone paste them into a summary document-- or even set up a website which has a page dedicated to each question/section, and have threaded discussions follow each. That might help guide the online discussion.

One more observation: There are numerous people who present themselves as blog experts who say "I'm tired of the blogging vs. journalism debate!" Well, you can check your expert credentials at the door. For all intents and purposes, experts do not shirk from debate simply because they are "tired" of them. Government bodies interested in informed opinion on these matters will check with other experts not tired.

Or, lawyers, political consultants, money and a federal election at stake, there's always a loophole and a chance to exploit. Look at 527s' impact this cycle. Astroturf vs grassroots will most likely be no exception. But the spirit of the ruling is a positive signal- a testament itself to grassroots power.

After carefully analyzing all 47 pages of the FEC’s proposed rules, it has become clear that my optimism yesterday was slightly premature. Mike Krempasky is at the FEC right now listing to the formal rule presentation. I’m sure we’ll have even more to write later.

Anyway, the FEC has come up with many good ideas, but the thrust of their document is to pose questions. It’s written in a very conversational tone along the lines of “here’s what we think…do you agree?”

For whatever it's worth, I appreciate the FEC’s interest in soliciting feedback from the online community – at least in appearance, if not in actuality.

Anyway, here’s my take. It’s long and tedious. Good luck.

Secion I: The Media Exemption & Compensated Bloggers

The FEC has proposed rewriting the media exemption to state the following:

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, whether the news story, commentary, or editorial appears in print or over the Internet, is not an expenditure unless the facility is owned or controlled by any political party, political committee, or candidate. (Emphasis added.)

In the comments, the FEC states that they would like to “extend to those entities who may solely have an on-line presence” coverage under the media exemption, and even cites publications like Salon.com, Slate.com, and Drugereport.com as examples. Well, that’s just about the best damn news I’ve heard all week.

However, the Commission stops right there. It fails to mention why a site like Slate would fall under the exemption and how or why other publications might do so, as well. Is the FEC treating Slate like a “magazine” or “periodical?” They don’t say and the rule isn’t clear.

Instead, they just tell us that (1) three specific online publications should be under the press exemption and (2) other people wishing to fall under it might be subject to a “case-by-case” analysis by the FEC.

Confused yet? It gets worse.

Without reading any further, it would appear that the FEC is saying (1) sites like Slate and Salon should fall under the press exemption and (2) others who think they belong there should apply to the FEC for some sort of pre-approval or [gasp] license. Not the end of the world, but we should try to suggest a catch-all rule rather than this arbitrary one-off process they mention.

But if you continue reading, the Commission draws a clear line between the online publications it specifically mentions and bloggers. They ask if “bloggers, whether acting as an individual or though incorporated or unincorporated entities, are entitled to the [media] exemption,” as well.

What just happened here? Is the FEC trying to tell us that they don't consider blogs to be online publications? It would seem that way. I think in the end, though, that compensated bloggers will find themselves in the same boat as the online-publications mentioned above.

Here’s my take:

1. If you’re a compensated blogger or online publication, writing for yourself or a corporation, you'll have to apply to be included under the media exemption or your writing may be considered an independent expenditure or corporate contribution. With any luck, we'll get a blanket rule regarding who's in and who's out, thereby avoiding the application process.

2. The form of compensation likely won't matter unless the blogger is being paid by an outside individual, organization, or candidate to specifically write about a federal candidate or political party. In these cases, compensation information must be disclosed, if not outright banned in certain situations.

My gut tells me that if the FEC and I are on the same page, then 99.99% of compensated bloggers will have no problem getting under the press exemption, so long as they are not being inappropriately compensated by a federal candidate or political party.

We have no standards, guidelines, or rules regarding who will and who won’t fall under the press exemption, but I think the FEC is wise enough to realize that Salon.com, Slate.com, and Matt Druge aren’t the only games in town. Time will tell.

Section II: Volunteering & Uncompensated Bloggers

When it comes to uncompensated bloggers acting as individuals or volunteers (“individuals”), the world is your oyster. The FEC has made it very clear that:

”an uncompensated individual acting independently or as a volunteer would not make a contribution or expenditure simply by using computer equipment or Internet services to engage in Internet activities for the purpose of influencing an election for Federal office.

[Note: “Internet activities” include, among other things, sending e-mail, linking to a candidate’s website, blogging, distributing banner ads, and hosting an Internet site.]

In other words, as long as you’re not being compensated for your efforts, individuals are free to blog their hearts out. It’s kind of like our own little media exemption for those of us willing to blog for free.

But, the FEC wouldn’t be the FEC without putting some restrictions on individual blogs. The rule basically suggests that you’re free to blog as much and often as you like as long as (1) the computer and other services (i.e. hosting) you’re using weren’t provided to you by a third party for the express purpose of blogging and (2) you’re only blogging in your private home or a public place.

Blogging at work is only permissible if it is “occasional, isolated, or incidental” and – don’t laugh too hard – you’re responsible to reimburse your employer/labor union “to the extent that the overhead or operations costs of the organization are increased” by your act of blogging. Good luck figuring that one out.

Section III: So What?

These rules beg for more clarification, which I’m sure we’ll get over the next two months, but it looks like the FEC is on the right path. They’ve certainly identified all the issues that we've been bugging them about and have made it clear that individual bloggers who receive no compensation will be free to blog away.

For all you compensated bloggers…keep the faith. The FEC hasn’t decided anything yet, but they know you’re out there and are open to giving you the press exemption. At this point though, seems like the only people who can sleep easily are Slate, Salon, and Matt Druge. Thanks for clearing things up, FEC. Sheesh.

Section IV: Questions I’m working on for later:

1. What constitutes “incidental” blogging at work?
2. What criteria will be used to determine if a blog or online publication falls under the media exemption?