Citizens United is in the news again nearly a month after the Federal Election Commission decided that the advocacy nonprofit with an active documentary arm qualified for the media exemption (CCP’s Allison Hayward wrote about the competing FEC AO’s in early June).
The press exemption, a special privilege bestowed by Congress, allows entities deemed legitimate media corporations by the government to avoid complying with burdensome campaign finance regulations that apply to other corporations and groups.
In a piece dripping with condescension, National Journal columnist Eliza Newlin Carney bashed the FEC’s “extraordinary” decision. At least Carney notes the explanation by FEC Commissioner Matthew Petersen that Citizens United has produced 14 documentary films and has four more in the works, an argument that convinced Democratic FEC Commissioner Cynthia Bauerly. Carney, who of course did not mention Bauerly’s vote in support of Citizens United, reported that “reformers” are whining that Citizens United didn’t call itself a media entity on its website, which is unremarkable considering that the FEC had not yet allowed it to claim the media exemption.
“If Citizens United is considered by the Federal Election Commission to be a press entity exempt from all campaign finance laws, it’s difficult to imagine a political advocacy organization that wouldn’t be exempt in the eyes of the current FEC,” Campaign Legal Center lawyer Paul S. Ryan howled in what Prof. Rick Hasen deemed the “Quote of the Day.”
No matter that Ryan completely ignores that the FEC denied the exemption when Citizens United had produced only two films, and thus, it would not be “difficult to imagine a political advocacy organization that wouldn’t be exempt in the eyes of the current FEC.” As Citizens United assistant general counsel Christian Berg explains, “You couldn’t just pop up a corporation to make extended political ads. We don’t know where the line is. It’s somewhere between two and fourteen films.” Also, in a recent Boston Globe story, Berg pushes back on Ryan’s distortion that Citizens United would be “exempt from all campaign finance laws”: When the group is engaged in purely political work, donors still must be revealed, Berg said. “But a media corporation—Washington Post, Boston Globe—they don’t have to disclose their funding sources. And neither does Citizens United when functioning in that role.”
Nonetheless, Carney laments what the “Citizens United controversy” means “[f]or bona fide journalists.” She ends with this call to arms: “Now it will be up to reporters — the old-fashioned kind, who care more about fact-finding than ideology — to figure out who’s really a journalist, and who’s a political player. They won’t be getting any help from the FEC.”
Despite the irony of a columnist steeped in ideology criticizing the blurry line between political advocates and press entities, the system would work much better if the government did not decide who is a “bona fide” reporter and who is a political advocate unworthy of First Amendment protections. Indeed, it’s unfortunate that the FEC can only go this far. Congress is considering another restrictive campaign finance law—the DISCLOSE Act—that would, like McCain-Feingold, hamstring political groups but exempt the mainstream media.
Rather than allow Congress and the FEC to decide what groups are worth of political protection as “press entities,” lawmakers should reject this hierarchy of First Amendment rights in contrast with the plain language of the First Amendment.
To this point, Carney criticized the FEC for ignoring the Supreme Court’s ruling in Citizens United v. FEC that “Hillary: The Movie” was a “feature-length negative advertisement that urges viewers to vote against Senator [Hillary Rodham] Clinton for president,” and not a protected media product. No matter the Court’s tangential view on one particular film, though, it also wrote that, “Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendment’s original meaning would permit suppressing media corporations’ political speech.”
The Boston Globe‘s recent piece explained that the FEC decision on Citizens United “equat[ed] its often highly partisan work—including films attacking Democrats Hillary Rodham Clinton and President Obama—with the work of nightly newscasts.” The reporter reproduces a quote from CLC’s Ryan nearly identical to the one Carney solicited. Ryan bashes Citizens United’s “so-called documentaries” and warns of a proliferation of partisan advocates undermining the law by producing “documentaries” that are merely long campaign ads. One wonders if he means films like Michael Moore produces?
As ideological media such as The Huffington Post and RedState.com become more competitive with long time establishment organizations such as The New York Times and PBS, the distinctions Carney and “reformers” wish to draw will evaporate. Perhaps then the Times will be faced with a choice of disclosing all of its corporate backers and being regulated as a political committee (if it seeks to editorialize for or against candidates) or finally acknowledging that perhaps we’ve gone too far in regulating political speech.
