I can't think of a thing which DailyKos.com does right now which press
entities in other media don't already do (and/or have been approved by
the FEC for doing), and that includes encouraging reader contributions
to candidates of Markos' choosing, as well as that of any of the 80,000+
readers of the site who can post their own diaries.
In terms of the funding of the site, there is no mystery. Markos
testified before the FEC on this very topic on June 28:
MR. PEHRKON: How do you fund your operation?
MR. MOULITSAS: Advertising.
MR. PEHRKON: Strictly by advertising?
MR. MOULITSAS: Yes.
Anyone who actually looks at the site can tell that it has not been
established by the Democratic Party -- its readers are often more
interested in ripping apart their own side's failings than anything
else.
So, what else would you need to know before determining that
DailyKos.com fits within the press exception?
--Adam
-----Original Message-----
From: Trevor Potter [mailto:TP@Capdale.com]
Sent: Saturday, March 18, 2006 11:50 PM
To: Bonin, Adam C.; Bauer, Bob (Perkins Coie); tmann@brookings.edu;
BSmith@law.capital.edu; election-law@majordomo.lls.edu
Subject: RE: "CDT Responds to Markos"
Perhaps the List should detour into Hollywood more often--the depth of
knowlege is impressive! Now, back to more transitory matters:
1.)As to Adam's question about DailyKos, I think the only way to answer
it is to turn it around--are Adam and/or Markos warranting that it meets
the criteria listed in 4900, or that it is a press entity as the FEC has
broadly described that term? The problem with the question is that no
outsider knows how DailyKos is financed, whether it is established by
any political party, or exactly what it does now or intends to do in the
future. So, DailyKos, by lining up these facts with 4900 and the FEC
AOs, already knows whether it meets the criteria of 4900, or is a press
entity--but the other members of the list (unless they are DailyKos
counsel or insiders) do not.
2.)The argument that state parties have not yet spent soft money on
Internet campaigns for federal candidates, so Congress should change the
law to allow them to do so, BECAUSE THEY WON'T TAKE ADVANTAGE OF THAT
LAW, seems pretty odd.Why would their industrious party lawyers be
arguing so hard for a new law they don't intend to utilize??
It sems most likely that state parties have not been spending soft money
on federal Internet activities bacause a federal district judge and the
DC Court of Appeals have held the FEC's exemption for such spending
contrary to law, and ordered the Commission to come up with new
regulations incorporating this holding in time for the 2006 cycle. In
this situation, I wouldn't advise my clients to go ahead and make plans
to spend soft money for federal candidates--at least until I had gotten
Congress to change BCRA and overrule the DC Circuit.
Trevor Potter
-----Original Message-----
From: Bonin, Adam C. [mailto:ABonin@cozen.com]
Sent: Sat 3/18/2006 9:11 PM
To: Trevor Potter; Bauer, Bob (Perkins Coie); tmann@brookings.edu;
BSmith@law.capital.edu; election-law@majordomo.lls.edu
Cc:
Subject: RE: "CDT Responds to Markos"
Everyone claims to "favor an exemption from the campaign finance laws
for bloggers". Great, in theory, but that leads back to the first of
the three specific questions I asked on March 14: "Do you believe that
HR 4900 protects every aspect of DailyKos.com's current activities,
including its being organized as an LLC, its receiving advertising
revenue from a mix of candidates, parties, 527s and other groups, its
fundraising on behalf of federal candidates and its provision of free
space for posting to Democratic candidates?"
http://www.dailykos.com/storyonly/2006/3/14/153936/111 Put another way,
is DailyKos.com somehow not a blog, as you're using the phrase below?
And back to Brian's question: if state parties raising unlimited soft
money to spend on internet communications for federal candidates is so
obvious, why hasn't it happened yet?
--Adam
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of Trevor Potter
Sent: Sat 3/18/2006 10:23 AM
To: Bonin, Adam C.; Bauer, Bob (Perkins Coie); tmann@brookings.edu;
BSmith@law.capital.edu; election-law@majordomo.lls.edu
Subject: RE: "CDT Responds to Markos"
There are times that I think we're not speaking the same language, and
this is one of them. So, let me try to respond in plain language to
Adam's question:
1.) Supporters of 4900 favor an exemption from the campaign finance laws
for bloggers. That is WHY we support that bill: it achieves that without
undoing other parts of BCRA. We think Bloggers should be treated
DIFFERENTLY from national parties, candidates, and political committees,
all of which have to use hard money (limited individual contributions)
for their federal election speech.
2.)Opponents of 1606 do NOT favor exempting state parties from the
requirements of McCain Feingold. Limits on state party expenditures of
soft money are an important component of that law, and serve to prevent
the obvious end run of state parties raising unlimited soft money to
spend of communications for federal candidates. 1606 exempts state
parties from the BCRA hard money system for their Internet
communications. WHY? What does that have to do with protecting bloggers?
I have YET to see a public defense of this central provision of 1606 on
this ListServe--thus John Morris's comments about the hidden motivation
of authors of 1606.
Trevor Potter
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu on behalf of Bonin, Adam
C.
Sent: Fri 3/17/2006 8:34 PM
To: Bauer, Bob (Perkins Coie); tmann@brookings.edu;
BSmith@law.capital.edu; election-law@majordomo.lls.edu
Cc:
Subject: RE: "CDT Responds to Markos"
As a member of Generation X, Bob, I feel neither highs nor lows. It's
all about the same.
My problem with the "debate" is a simple one: there is no actual debate,
no exchange of ideas and contentions. From among Those Who Support HR
4900, only CDT's John Morris has been willing to engage its doubters
both publicly and privately. Others have chosen to speak through press
releases and soundbites online, and it's a shame. We might actually be
able to solve this thing if everyone could figure out what specifically
scares Those Who Support HR 4900 so much.
So let's get away from the camps, from name-calling and from platitudes:
what *is* the problem -- or, what *could be* the problem with sites that
aren't owned, controlled by or subsidized by candidates, parties and
PACs?
--Adam
--------------------------------------------------------
Notice: To comply with certain U.S. Treasury regulations, we inform you
that, unless expressly stated otherwise, any U.S. federal tax advice
contained in this e-mail, including attachments, is not intended or
written to be used, and cannot be used, by any person for the purpose of
avoiding any penalties that may be imposed by the Internal Revenue
Service.
--------------------------------------------------------
Notice: This communication, including attachments, may contain
information that is confidential and protected by the attorney/client or
other privileges. It constitutes non-public information intended to be
conveyed only to the designated recipient(s). If the reader or recipient
of this communication is not the intended recipient, an employee or
agent of the intended recipient who is responsible for delivering it to
the intended recipient, or you believe that you have received this
communication in error, please notify the sender immediately by return
e-mail and promptly delete this e-mail, including attachments without
reading or saving them in any manner. The unauthorized use,
dissemination, distribution, or reproduction of this e-mail, including
attachments, is prohibited and may be unlawful. Receipt by anyone other
than the intended recipient(s) is not a waiver of any attorney/client or
other privilege.
--------------------------------------------------------
From: owner-election-law_gl@majordomo.lls.edu on behalf of Bauer, Bob
(Perkins Coie)
Sent: Fri 3/17/2006 6:39 PM
To: tmann@brookings.edu; BSmith@law.capital.edu;
election-law@majordomo.lls.edu
Subject: Re: "CDT Responds to Markos"
In truth, Tom, I did not intend to comunicate contempt through the
references to the "reform community". Differences within that community
may well be found: I imagine they would be. On issue after issue,
however,the activist organizations--the one adopting specific posiitions
on legislation or regulation--seem very united. Quite often a number
will sign on to the same positions. That certainly seemd true in the
run-up to the enactment of BCRA. But perhaps I overstate the case.
I am alll for civil debate. So this is my request: that those arguing
for specific reforms not "caricature" their adversaries' arguments as
shifty rationaliztions of corrupt practice. Anyone interested in
examples may reply with that request.
Proponents of various regulatory measures take full advantage of one of
their principal assets, the highly positive ring, to the ears of many,
of the word "reform", which turns their critics into scabrous" opponents
of reform". Be sensitive to that. We also have feellings.
Civilly
Bob.
IMPORTANT TAX INFORMATION: This communication is not intended or
written by Perkins Coie LLP to be used, and cannot be used by the
taxpayer, for the purpose of avoiding penalties that may be imposed on
the taxpayer under the Internal Revenue Code of l986, as amended.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
To: Smith, Brad; election-law
Sent: Fri Mar 17 16:56:55 2006
Subject: RE: "CDT Responds to Markos"
A modest request to Brad Smith and other members of the list serve. Your
views of the "so-called reform community" are well known to all members
of this list serve. Some of us share those views, others do not. But
in the spirit of civil discussion and debate, we would all benefit if
you could refrain from repeating the same characterization that drips
with contempt for those on the other side of the debate. By my count,
Brad manages five such references in his latest offering below. Should
those who disagree with Brad qualify all references to him as "someone
who espouses the repeal or constitutional overturning of all campaign
finance laws"? And since the "reform community" is characterized in
unitary terms, should Brad and Bob Bauer also be treated as two peas in
a pod, even though they have clear differences on some aspects of
campaign finance law? Let's all, myself included, try to debate the
merits of the particular issue under discussion and not caricature those
!
with whom we disagree.
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Smith,
Brad
Sent: Friday, March 17, 2006 4:01 PM
To: election-law
Subject: RE: "CDT Responds to Markos"
I think that John Morris's heart and intentions are in the right place.
CDT solicited a great deal of comment on their proposal from a wide
variety of people in an effort to find consensus. Moreover, I think
that CDT's intention in drafting what became H.R. 4900 was a good faith
effort to extend broad protection to internet activity, and in many ways
it is successful in that goal. It is certainly better than what the
traditional "reform" community wants, filed comments for at the FEC, and
sued for in Court, and in that sense it is a compromise. Additionally,
it is true that it extends some protections to the internet that H.R.
1606 simply does not address, although it is not entirely clear that the
so-called "reform" community agrees that H.R. 4900 extends those
protections. (And there is no reason that H.R. 1606 could not have
passed, and then CDT could have pursued those other issues.)
John is wrong, however, in writing that "Bob [Bauer] is holding you
[Kos] and the entire blogging community hostage to further his
anti-campaign finance goals." Quite the contrary, had John not allowed
a desperate "reform" community the life preserver of H.R. 4900, it is
very likely that H.R. 1606 would have passed the House yesterday. H.R.
4900 served to confuse the issue and give some pro-regulatory
legislators cover for what would otherwise be a very unpopular position.
So the real question is, which bill is superior?
I think that 1606 is superior to the CDT approach in two key ways. The
first problem with H.R. 4900 is that it is not clean. Under 1606, the
internet community can feel comfortable knowing that a great deal of its
activity is simply off-limits to the regulators. This allows one to
enter the debate with security. Under 4900, with its various
thresholds, the internet community has to watch its back. Have the
spending thresholds been passed? It is very easy for anyone to bring a
complaint, and then it will often be a fact investigation as to what was
actually done, and whether it was done within the law. And because it
is more complicated, people will feel less comfortable about their legal
rights.
The second problem with HR 4900 is that does not protect some sites at
all. Why shouldn't a site be protected merely because it has become
successful? The CDT's answer is that such a blog would fall under its
press exemption. But as Bob Bauer points out, it is not at all clear
that the so-called "reform" community thinks that. I cannot forget that
during the FEC's still-pending internet rule-making, the "reform"
community commented urging the FEC to adopt a standard for internet
regulation that, when pressed at oral hearing, they admitted they
thought was probably outside the FEC's power; and when pressed further,
they would not agree not to sue the FEC if it adopted that standard of
internet regulation that they were recommending.
There really has been no case made that the FEC rule, in effect for
since McCain-Feingold became law, is a problem. We're through a cycle
and a half, and the "reformers'" horror stories have not come true. So
I prefer the simpler language of H.R. 1606, codifying that rule, to a
new approach. Later legislation can address some of the other issues
included in 4900.
I remain confident that one bill or the other will pass, so John's
"hostage" comment remains out of place.
Bradley A. Smith
Professor of Law
Capital University Law School
Columbus, Ohio
________________________________
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Rick Hasen
Sent: Thursday, March 16, 2006 5:40 PM
To: election-law
Subject: Re: "CDT Responds to Markos"
UPDATE: And here
<http://www.dailykos.com/comments/2006/3/15/222216/199/31?mode=alone;sho
wrate=1#c31> is another posting, responding to Bob Bauer's criticisms.
Rick Hasen wrote:
"CDT Responds to Markos"
John Morris of CDT has posted this response
<http://www.dailykos.com/comments/2006/3/15/16415/5712/46?mode=alone;sho
wrate=1#c46> on the Kos website regarding the choice between, among
other options, HR 1606 and HR 4900 (the CDT alternative). A snippet:
Let me address how DailyKos would be affected under HR 4900. I believe
that DailyKos would be deemed to be news media (which HR 4900 would
permit but HR 1606 does not address). So you and the blog would have no
obligations under the rules. More generally, I believe that all or
almost all blogs would be fully protected by HR 4900, either because
they do not spend more than $5000 for advocacy, or because they are news
media, or both.
Very interesting. If that's the intention, then perhaps the language of
HR 4900 should be drafted to make this fact more self evident
--
Rick Hasen
William H. Hannon Distinguished Professor of Law Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
--
Rick Hasen
William H. Hannon Distinguished Professor of Law Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
NOTICE: This communication may contain privileged or other confidential
information. If you have received it in error, please advise the sender
by reply email and immediately delete the message and any attachments
without copying or disclosing the contents. Thank you.
<- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -> To
ensure compliance with requirements imposed by the IRS, we inform you
that, unless specifically indicated otherwise, any tax advice contained
in this communication (including any
attachments) was not intended or written to be used, and cannot be used,
for the purpose of (i) avoiding tax-related penalties under the Internal
Revenue Code, or (ii) promoting, marketing, or recommending to another
party any tax-related matter addressed herein.
This message is for the use of the intended recipient only. It is from
a law firm and may contain information that is privileged and
confidential. If you are not the intended recipient any disclosure,
copying, future distribution, or use of this communication is
prohibited. If you have received this communication in error, please
advise us by return e-mail, or if you have received this communication
by fax advise us by telephone and delete/destroy the document.
<- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -> To
ensure compliance with requirements imposed by the IRS,
we inform you that, unless specifically indicated otherwise,
any tax advice contained in this communication (including any
attachments) was not intended or written to be used, and
cannot be used, for the purpose of (i) avoiding tax-related
penalties under the Internal Revenue Code, or (ii) promoting,
marketing, or recommending to another party any tax-related
matter addressed herein.
This message is for the use of the intended recipient only. It is from
a law firm and may contain information that is privileged and
confidential. If you are not the intended recipient any disclosure,
copying, future distribution, or use of this communication is
prohibited. If you have received this communication in error, please
advise us by return e-mail, or if you have received this communication
by fax advise us by telephone and delete/destroy the document.