June 15, 2004
The NRA and the Media Exemption
The New York Times reports here that "[i]n a direct challenge to federal limits on political advocacy, the National Rifle Association plans to begin broadcasting a daily radio program on Thursday to provide news and pro-gun commentary to 400,000 listeners. The group says its jump into broadcasting with its program, 'NRANews,' means that it should be viewed as a media organization that does not have to abide by provisions of a sweeping campaign finance law from 2002. That law stops organizations from using unregulated "soft" money to buy political advertising that directly attacks or praises federal candidates in the weeks before federal elections and primaries. The N.R.A. says its three-hour program constitutes news and commentary, not advertising. As a result, when other advocacy groups are required to stop running political commercials, 'NRANews' intends to continue broadcasting its reporting and commentary against politicians who favor gun control to Nov. 2."
The article quotes various opinions on the legality of NRA's move, including a quote from Democratic attorney Bob Bauer: "It smells like, and it looks like, a complete circumvention of the law," Mr. Bauer said.
The issue does not appear so clear-cut, however. Because the NRA takes corporate money, under the law it cannot make "expenditures" (except through a separate PAC) on any "electioneering communication': that is, a broadcast advertisement made within 60 days of the general election mentioning an identified candidate for federal office and targeted at the relevant electorate. However, the law exempts from the definition of "expenditure" "any "communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station[, newspaper, magazine, or other periodical publication], unless such facilities are owned or controlled by any political party, political committee, or candidate." 2 USC 434(f)(3)(B)(i); 2 USC 431(9)(B)(i).
To give a simple example to start, NBC Nightly News can spend unlimited corporate funds on news stories naming Bush and Kerry (even endorsing one of them). But General Electric, parent company of NBC, could not spend any corporate funds for advertisements on NBC Nightly News or any other electioneering communications featuring Bush or Kerry in the 60 day window before the election.
Putting aside the possibility that the NRA is a "political committee" that owns or controls the broadcast station (it appears otherwise from the Times article), the relevant question is whether its three-hour daily show fits into the media exemption. The only Supreme Court case arguably on point is Massachusetts Citizens for Life, where the Supreme Court held that the special edition of a newsletter put out by an anti-abortion group was not a "periodical publication" under the media exemption.
Following MCFL's reasoning, one question about NRANews is whether this is a show put on only for electioneering purposes or is really a bona fide news and commentary program. The fact that the NRA started this show now and plans to broadcast through Election Day raises the question as to whether this is really a bona fide news program. It appears to be a factual question.
The FEC has promulgated some pre-BCRA rules on this (which Marty Lederman cites to here skeptically) which don't really appear to help answer the question of how to treat NRANews.
For someone like Bob Bauer, who generally opposes reading the campaign finance statutes broadly to cover even more activity than the statute clearly does, it appears inconsistent to claim that the NRA activity looks like a "complete circumvention" of the law.
This presents a difficult statutory question about the meaning of the media exemption. The Times article also suggests that NRA is pursing this strategy as a way to make a constitutional assault on federal campaign law as well, by claiming that the media exemption is unconstitutional. I think that position was pretty much rejected by the Supreme Court in the McConnell case, for reasons I've set forth here.