July 01, 2004

"Fahrenheit 9/11," NRANews, and the Media Exemption: Should Michael Moore, the NRA and Others Get a Pass from McCain-Feingold's Electioneering Communications Provisions?

The continued blurring of the lines separating entertainment, politics, and news has become very evident as Michael Moore’s anti-Bush movie “Fahrenheit 9/11” hit the theaters, and as the National Rifle Association began its three-hour news and commentary program on the Sirius satellite radio network. The movie has already led, and and NRANews likely will lead, to campaign finance complaints being filed with the Federal Election Commission. The complaints raise a question at the core of the First Amendment: should we give special treatment to news media corporations?

One of the core campaign finance provisions of the new McCain-Feingold campaign finance law prevents corporations or labor unions from spending corporate or union funds on “electioneering communications.” These are broadcast advertisements aired within 30 days of primaries or party conventions or 60 days of the general election that feature a candidate for federal office. So, General Motors or the AFL-CIO could not run a television or radio ad mentioning President Bush or Senator Kerry during the electioneering communications window unless they paid for the ads through a separate special PAC.

But the law contains an exception for the news media corporations. So, when Tom Brokaw, Bill O’Rielly, or Al Franken mention the names of Bush or Kerry on corporate-owned television or radio networks, the electioneering communications provision does not apply. Indeed, a similar dichotomy applies to print media: the ExxonMobil Corporation or the AFSCME union cannot pay for a newspaper advertisement saying “Vote for Bush” or “Vote for Kerry,” but the Los Angeles Times can print an endorsement using the same words and paid for with Tribune Corporation money.

The Michael Moore film itself is not an electioneering communication (because it is in theaters, not on television, radio, cable, or satellite) but advertisements for the movie on radio or television feature President Bush and may well be broadcast in the electioneering communications window. NRANews is not a longstanding news and commentary program, like the O’Rielly Factor, but is instead a package of campaign-related news and commentary being prepared, according to press reports, only through Election Day.

Opponents of Moore or the NRA (and we know there are many of both) want to use campaign finance laws to keep them from the airwaves. The campaign finance statutes do not directly answer questions like these: If nothing in campaign finance law prevents theaters from running a documentary criticizing the President during the election season, should the law prevent the broadcast of advertisements publicizing the documentary? How much like a regular news program must NRANews be to fit under the exception for news and commentaries?

As the Federal Election Commission likely grapples with these questions in the coming weeks, following a complaint filed against Moore's distributors by a conservative group, First Amendment concerns will bubble just beneath the surface. The Supreme Court has said that a congressional exception to campaign finance rules for media corporations is justified, because of the “unique role that the press plays in informing and educating the public, offering criticism, and providing a forum for discussion and debate.”

But surely some of “the press” does not play that role (or play that role well), and others outside “the press”—including Moore and the NRA—may play that role too. And what of the Internet? Should Congress decide to extend electioneering communications rules to political internet advertising in the next election season, when the Internet will be bigger than ever, will it craft another media exception? Will that exception include bloggers and other non-traditional websites, many of which educate the public, offer criticism, and provide a forum for discussion and debate?

In the past, campaign finance reform opponents have used the media exception to argue against all limits on corporate and union speech: why silence GM when Rupert Murdoch may spend unlimited sums to support or oppose candidates through his newspapers and television stations? (Indeed the Murdoch-owned New York Post first editorialized last week that Moore's ads should be barred under campaign finance laws, but then abruptly reversed course.) But the public likely would not want to tolerate unlimited corporate and union spending intended to influence the outcome of federal elections.

An alternative Congress could consider is to repeal the media exception. Such an approach has the advantage that no one would have to distinguish between “the press” and everyone else. But there are obvious First Amendment costs associated with this approach. Indeed, one suspects that the major newspapers’ support for campaign finance reform would dry up rather quickly if newspaper editorial writers were subject to the same limits as GM: financing their editorials endorsing candidates for federal office through separate PACs. Treating media corporations as other corporations is not on the table right now.

Faced with two unpalatable choices—unrestrained corporate and union spending on elections or repealing the media exception—Congress and the Federal Election Commission are likely to continue to muddle through, crafting ever more sophisticated tests for distinguishing “the press” from everyone else. Under those tests, the Michael Moores and NRANews will sometimes act at their own peril.

The best short-term solution is for the FEC is to engage in some convoluted line-drawing. It should use its regulatory powers to protect political actors like Moore and the NRA: broadcast advertisements promoting a bona fide political commentary (in a documentary, book, or otherwise) should be exempted from the electioneering communications provisions, and the test for what constitutes a bona fide news and commentary program under the media exemption should be read broadly to include even election-related programs such as NRANews.

The new line-drawing has a danger: it might encourage more corporations and unions to put on sham news programs or broadcast advertisements supporting or opposing a candidates for public office under the guise of sham advertising for a book or movie. For this reason, FEC regulations are only a temporary solution.

In the long run, Congress should consider if an exception for media corporations and such corporations alone continues to make sense. The media exemption may indeed become the next battleground for campaign finance reform.

Posted by Rick Hasen at July 1, 2004 10:27 AM