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Tech Law Journal |
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Editor's Notes:
Re: Complaint against Zack Exley and www.gwbush.com Dear Mr. Noble: Pursuant to 2 U.S.C. § 437g, and upon information and belief, this complaint concerns violations of the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. § 431 et seq. ("the Act"), and Commission regulations at 11 C.F.R. § 1.1 et seq., by Zack Exley and the internet web site located at www.gwbush.com. Specifically, based upon publicly available information found at www.gwbush.com, and upon information and belief, there is reason to believe that Zack Exley and www.gwbush.com have violated 2 U.S.C. § 441d and 11 C.F.R. § 110.11 for failure to include the proper independent expenditure disclaimers on the web site. In addition, if Mr. Exley's and www.gwbush's expenditures associated with the web site aggregate in excess of $250 for 1999, they must file the independent expenditure reports required by 2 U.S.C. § 434(c) and 11 C.F.R. §§ 104.4(c), 104.5(c)(2) and 109.2. Finally, if Zack Exley and www.gwbush.com have received contributions or made expenditures whose aggregate value is in excess of $1,000 during a calendar year, they have violated the registration requirements for political committees under the Act and Commission regulations. See 2 U.S.C. §§ 431(4)(A), 433(a); 11 C.F.R. §§ 100.5(a), 102.1(d). [begin page 2] I. STATEMENT OF THE FACTS
The web site, www.gwbush.com, is owned and operated by Zack Exley, zackexley@yahoo.com, 25 Magnus Ave., Apt. # 1, Somerville, MA 02143.1 As the attached copy of the site indicates, it is filled with libelous and untrue statements whose aim is to damage Governor Bush in his effort "for President" in the upcoming election. The headline of the site is: "Just Say 'No' to a Former Cocaine User for President". Immediately below this statement is a clear picture of Governor Bush. In addition, without any backup or documentation, this site's innuendoes and false statements attack the Governor's positions on tough standards for convicted drug users. The existence of the site demonstrates that Zack Exley has expended or received funds to create and maintain this site. The costs associated with the site must include its fair value (which may have been set by Mr. Exley if he has attempted to sell the domain site) plus the fee to secure the registration of the domain name "www.gwbush.com," the cost of the computer hardware that houses the site and maintains its operations, and the utility costs to create and maintain the site, including the computer software. Furthermore, if Mr. Exley did not create the site himself, the labor or consulting costs for creating and maintaining the site must also be included. If the value of the site and the costs involved in setting it up exceed $250, Mr. Exley must file the reports required of all independent expenditures. And if the value of the site and the costs of its establishment exceed $1,000, then Mr. Exley must register with the Federal Election Commission ("the Commission") as a political committee and file the periodic reports required by the Act for all activity. If the message is somehow being disseminated by a corporate entity, then Mr. Exley is also guilty of violating 2 U.S.C. § 441b. II. LEGAL ANALYSIS
The Act and Commission regulations require that all communications that expressly advocate the election or defeat of a clearly identified federal candidate must carry a disclaimer identifying the sponsor of the communication and whether it is coordinated with or [begin page 3] independent of a candidate for federal office. See 11 C.F.R. § 110.11. The disclaimer requirements also apply to express advocacy communications located on a web site. See, e.g., FEC AO 1998-22 (concluding that an independent web site must satisfy the disclaimer requirements if it advocates the defeat of a clearly identified federal candidate). If a political communication located on a web site is an independent expenditure, then the disclaimer must comply with 11 C.F.R. § 110.11(a)(1)(iii). There is no question that the statement "Just Say 'No' to a Former Cocaine User for President" constitutes express advocacy under Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976), and Commission regulations at 11 C.F.R. § 100.22. Likewise, there is no question that the web site clearly identifies Governor Bush. See 11 C.F.R. § 100.17 ("'clearly identified' means the candidate's name, nickname, photograph ..."). Thus, Mr. Exley and www.gwbush.com have violated the Act and Commission regulations by failing to include the required disclaimers on the web site. This violates the Act and Commission regulations and warrants a thorough investigation by the Commission.
Commission regulations provide that any person who makes independent expenditures aggregating in excess of $250 during a calendar year must file a signed statement or report on FEC Form 5 with the Commission. See 11 C.F.R. § 109.2. The fair market value of the site (which Mr. Exley may have established if he has attempted to sell the site) and the costs associated with its creation and maintenance constitute "expenditures" under the Act and Commission regulations, 2 U.S.C. § 431(9) and 11 C.F.R. § 100.8, because the site expressly advocates the defeat of a federal candidate by exhorting readers to "just say no" to Governor Bush "for President". See 11 C.F.R. § 100.22. Therefore, the costs associated with www.gwbush.com constitute "expenditures" under the Act and Commission regulations. In addition, the costs associated with the site appear to aggregate in excess of $250 during 1999. The Commission has concluded that the overhead costs associated with the creation of a web site include "the fee to secure the registration of [the] domain name, the amounts ... invested in [the] hardware, and the utility costs to create the site." FEC AO 1998-22. Moreover, if Mr. Exley hired any consultants, or paid a third party to create the site, then [begin page 4] those costs would count toward the $250 threshold for filing independent expenditure reports. As one recent newspaper article indicates, the costs of creating and maintaining a web site of this type can cost as much as $2,000 or more. See Judy Keen, Candidates Use Web To Click With Voters, USA Today, Apr. 29,1999. Accordingly, if Mr. Exley and www.gwbush.com have made expenditures aggregating in excess of $250 during 1999, then they must file the semi-annual independent expenditure reports required by the Act and Commission regulations. See 11 C.F.R. §§ 109.2(a)(2) & 104.5(c)(2). Failure to file the required independent expenditure reports would constitute a violation of the Act and Commission regulations and would warrant a through investigation by the Commission.
The Act and Commission regulations define a "political committee" as a committee, club, association or other group of persons which receives contributions or makes expenditures aggregating in excess of $1,000 during a calendar year. See 2 U.S.C. § 431(4); 11 C.F.R. § 100.5. The costs associated with communications that advocate the election or defeat of a clearly identified federal candidate, such as www.gwbush.com, constitute expenditures under the Act and Commission regulations. See 11 C.F.R. § 109.1. If a group of individuals satisfy the definition of a political committee, they are required to file a Statement of Organization within ten days of qualifying. See 11 C.F.R. § 102.1(d). A review of the Commission's web site indicates that Mr. Exley and www.gwbush.com have not filed a Statement of Organization with the Commission. If the costs associated with the web site exceed $1,000 for 1999, then they are required to file a Statement of Organization. This failure constitutes a violation of the Act and requires further investigation by the Commission. [begin page 5] III. CONCLUSION Mr. Exley's and www.gwbush.com's failure to comply with the Act and Commission regulations warrants further investigation and enforcement by the Commission. Therefore, the Commission should immediately investigate this matter and find reason to believe that Mr. Exley and www.gwbush.com have violated the Act and Commission regulations for the reasons set forth herein. Respectfully submitted,
Benjamin L. Ginsburg Attachments
SWORN TO AND SUBSCRIBED before me on this 4th day of May, 1999.
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