Advisory Opinion 2005-16.  Fired Up! LLC, a for-profit entity formed in Missouri that owns and operates Internet websites, sought the Commission's opinion on whether the costs of the materials published on its websites are covered by the press exemption and thus would not be considered contributions or expenditures under the Act.  The draft Opinion concluded that the press exemption would apply.

      Chairman Thomas said he believes the request was designed to be a "teaser."  While Fired Up's Democratic leaning is obvious, the request stated that it supports "progressive" candidates, leaving open the opportunity for support of candidates of other parties. 

      Chairman Thomas questioned when an entity such as Fired Up might "cross the major purpose line" and be considered a political committee as defined by the Supreme Court.  He notes that the major players involved with Fired Up have long-standing ties to the Democratic Party, and that the sites would advocate and solicit contributions to Democratic candidates.  However, Chairman Thomas was comfortable that the websites' current content would be covered by the press exemption, and he will support the draft. 

      Vice Chair Toner strongly supported the Opinion, which in his view applied the press exemption broadly to online communications.  He emphasized that express advocacy in no way removes the press exemption from Fired Up, even when the express advocacy is paid for with corporate funds.  Vice Chair Toner also emphasized that soliciting for federal candidates, a profit motive, management by persons with strong political ties, and political bias of an entity in no way undermine the press exemption. 

      Vice Chair Toner believes the touchstone of the analysis in this instance is the sites' content of news stories, commentary and editorials, as well as the fact that they are not owned or controlled by a federal candidate or officeholder, or a political party.

      Commissioner Weintraub also supported the opinion.  She noted that she has been saying for months that the FEC does not want to regulate bloggers and said she believes this Opinion will send a message to that effect. 

      Commissioner Weintraub added that most media entities have political leadings, however pronounced, and that audiences often choose to read a publication or watch a particular program because of views generally expressed by the entity.

      Commissioner McDonald wondered whether there are any circumstances under which an entity could not avail itself of the press exemption.  He believes that result may be broader than what Congress intended and that the Commission will likely need to address it in the future.  However, he supported the Opinion.

      Commissioner Mason addressed the comments submitted by Democracy 21, the Campaign Legal Center and the Center for Responsive Politics.  He believes those comments were misapplied.  He did not understand how an entity like Fired Up could become a political committee "because it does too much politicking."  Commissioner Mason referred to FEC v. Phillips Publishing, 517 F.Supp. 1308 (D.D.C. 1981), in which the court determined that Phillips' The Pink Sheet promotional mailing met the criteria for the press exemption.  (The mailing had expressly advocated the defeat of Senator Edward Kennedy in his bid for the 1980 Presidential nomination.)

      Chairman Thomas ended the discussion by noting that the Opinion does not address free advertising for candidates, or collecting and disbursing money for candidates. 

      The Opinion was approved 5:0.

      Advisory Opinion 2005-18.  Congressman Silvestre Reyes' and his campaign committee sought the Commission's opinion on whether it was permissible to use campaign funds to pay for a weekly radio program to be aired in El Paso, Texas, and hosted by the Congressman.  The request stated that other Members of Congress may from time to time appear on the program, but that the program would not be aired in any of those Members' congressional districts. 

      The Advisory Opinion concluded that payments for the program would be a permissible use of campaign funds.  The Opinion also stated that another Member's appearance on the program would neither be construed as a "coordinated communication" nor an in-kind contribution to that Member, and provided examples of appropriate disclaimers. 

      Although the Commission did not change the draft Opinion, Chairman Thomas suggested that one legal point, not at issue in the request, warranted clarification:  that a federal candidate actually be must be on the ballot in an election for the 120-day coordination window to apply to communications featuring him or her.  In other words, a candidate cannot receive a contribution in the form of a "coordinated" expenditure within 120 days of an election if he or she, though a "candidate" for FEC purposes, is not a candidate in that election.

      The Opinion was approved 5:0.

 Donna Lovecchio