Is Mike Bloomberg Breaking the Law by Continuing to Control Bloomberg News While a Presidential Candidate?[UPDATE: Probably Not]

News item:

Michael Bloomberg temporarily had a tiny but extremely questionable advantage in the 2020 presidential race: if you typed “Mike” into one of his company’s roughly 325,000 news terminals around the globe, you were redirected to his campaign site, reported the Financial Times.

Federal regulations generally exempt the press from having to report what would otherwise count as campaign expenditures or electioneering communications. So, for example, here is an exemption for press activities from the FEC definition of “expenditure:” “(i) any 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.” (My emphasis.)

While Bloomberg has put limits on what Bloomberg News can cover, the news organization is still writing about presidential candidates. As I type this, I can find the following article on Bloomberg News’s site: Joe Biden Calls Iowa Man ‘Damn Liar’ for Raising Ukraine Issue.

But the law only exempts when the press makes expenditures (which would be express advocacy, like “Vote for Mike”) and electioneering communications, which include TV and radio (but not online) news and commentary broadcast 30 days before a primary or 60 days before the general election. Bloomberg News can easily avoid express advocacy, but it has TV and radio coverage in addition to its online coverage, which raises a more serious question as we approach the first 30-day window before the first presidential primaries and caucuses.

Brad Smith in an article in the Daily Caller makes the following argument:

Former FEC Chairman Bradley Smith told the DCNF that the key factor to determining whether Bloomberg News’s editorial policy puts its press exemption at risk is whether the commission determines that Trump is Michael Bloomberg’s opponent at this stage of the Democratic primary.

“A good argument nonetheless could be made that the press exemption should not apply here, given Bloomberg’s own declaration, ‘I’m running for president to defeat Donald Trump and rebuild America,’” Smith said, citing Michael Bloomberg’s campaign website.

However, Smith said he believes the better argument is that Michael Bloomberg and Trump aren’t officially considered opponents from a campaign finance perspective until they have secured their respective parties’ nominations. 

“I don’t believe that the FEC or a court have ever ruled on this type of situation, so I suppose it’s an open question,” Smith said. “Certainly, it reveals the flaws of having a regime in which some very large, influential corporations (those designated ‘press’) have a freedom that other Americans do not.”

Brendan Fischer of the Campaign Legal Center told the Daily Caller: “Bloomberg News declining to cover any Democratic presidential hopeful means that they are giving equal coverage to all opposing candidates in the primary, but President Trump will be the Democratic nominee’s opponent in the general.” “Fischer said it would be appropriate for the FEC to weigh in on the legality of Bloomberg News’s editorial policy, but the commission is currently unable to take any official actions as it has only three active commissioners on its six-member board, rendering the agency incapable of meeting its four-member quorum”

I’m not sure that the Trump/Democratic rivals issue is the right question. Instead, it is about whether Bloomberg News can continue to keep its press exemption even during the primary period if it is broadcasting on TV and Radio and covering the candidates. Seems to me this is a question that deserves more scrutiny. I welcome the thoughts of others.

UPDATE: Brad Smith points me to 11 c.f.r. 100.132, which creates a further exemption for:

“… a news story (a) That represents a bona fide news account communicated in a publication of general circulation or on a licensed broadcast facility; and (b) That is part of a general pattern of campaign-related news account that give [sic] reasonably equal coverage to all opposing candidates in the circulation or listening area, is not an expenditure.”

This regulation strikes me as inconsistent with the text of the statute, but given that it exists and there is no working FEC, this is probably enough to give Bloomberg a safe harbor to do what he’s doing.

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