FEC Takes No Action Against Anti-Bush Web Site

(April 20, 2000) The Federal Election Commission released a letter which states that it will take no action against Zach Exley, the operator of a parodic and defamatory web site. A complaint was filed on behalf of the George W. Bush presidential campaign seeking to have Exley penalized for allegedly failing to file campaign expenditure reports, and other purported election law violations.

The Federal Election Commission (FEC), the agency responsible for enforcing the Federal Election Campaign Act (FECA), released a letter to Zach Exley, and an FEC narrative, on or about April 14, which states that the FEC would take "no action" against him as a result of the complaint filed on behalf of the Bush campaign.

Benjamin Ginsburg, an elections lawyer with the law firm of Patton Boggs, filed a complaint with the FEC on May 4, 1999 which alleged that Zach Exley's anti-Bush web site violated various technical rules governing campaign money in federal elections.

The complaint rested on the allegation that an individual's personal web site expressing political speech constitutes an expenditure within the meaning of the FECA. More specifically, the complaint asserted that Exley broke the election laws in the operation of his web site by not including an independent expenditure disclaimer on his web site, by not filing independent expenditure reports forms with the FEC, and by not registering and reporting to the FEC as a political committee.

Gov. George W. Bush (R-TX)

Zach Exley created a simple web site with the domain name www.gwbush.com that copied some of the graphics and appearance of the official campaign web site of Gov. Bush. The focus of the web site is unsubstantiated accusations that Gov. Bush used cocaine. Also, in connection with its imitation of Gov. Bush's site, there is an element of parodic humor.

The FEC wrote in a letter to Exley dated February 29, 1999, but not delivered until April, that it "determined to exercise its prosecutorial discretion and to take no action against" Exley. In an attached narrative the FEC wrote that "There is no evidence of serious intent to violate the FECA, and this matter is less significant relative to other matter pending before the Commission."

Thus, the FEC did not address the allegations raised in the original complaint.

Neither the FEC's letter or narrative referenced the FEC's Notice of Inquiry regarding regulation of political speech on the Internet issued on November 1, 1999. In that NOI, the FEC sought public comment on a wide range of issues regarding speech and campaign activity on the Internet, including the issues raised by the Bush complaint.

The comment period closed in January. The FEC received over 1,000 comments from persons, companies, groups, and parties. The comments were almost entirely opposed to any application of the federal campaign laws to political speech on the Internet.

The FEC did not indicate whether this NOI proceeding had any effect upon its resolution of the Bush complaint.