The latest filing in the Dominion lawsuit against Fox News alleges that “During Trump’s campaign, Rupert provided Trump’s son-in-law and senior advisor, Jared Kushner, with Fox confidential information about Biden’s ads, along with debate strategy. [Citation]; Ex. 603 (providing Kushner a preview of Biden’s ads before they were public).”
Rep. Ted Lieu raises the question whether the actions of Murdoch are illegal. Corporations may not make contributions to candidates in any amount (a law that the the Supreme Court upheld against constitutional challene in the 2003 FEC v. Beaumont case). But corporate expenditures by a press entity do not count under the so-called “media exemption” when the press is engaed in normal press functions, like providing commentary or reporting on the news.
In this case (assuming the facts as alleged in the Dominion complaint are true—they may not be), sharing one candidate’s ads that have not aired with a competing candidate does not appear to be part of any press function. The ads were not shared for the purpose of newsgathering or opinion writing. They appear to be outside the context of the media exemption, and potentially illegal.
A helpful Harvard Law Review student note by Emily Hogin explains:
1. Most traditional media corporations’ activities fall within the press exemption. — Since Reader’s Digest, the FEC has nearly always concluded that content disseminated by traditional media companies falls within the press exemption. In a 1982 Advisory Opinion, the FEC advised a TV station owned by Turner Broadcasting System, a corporation, that donating two hours of free cablecast time on one of its channels to both the Democratic National Committee and the Republican National Committee fell within the press exemption — and therefore was not an impermissible corporate contribution.58×58. FEC, Advisory Opinion 1982-44, at 2–3 (Aug. 27, 1982). Note that it is a “coordinated communication” to republish campaign materials under 11 C.F.R. § 109.21(c)(2), (d)(6) (2015). A nonmedia corporation that offered to pay for two hours of free cablecast time would thus likely be making an impermissible corporate contribution.Show More The Commission concluded that the proposed programming was “commentary” and therefore not an expenditure under the press exemption because “providing two hours of free time to both major political parties to discuss issues, to attempt to show the differences between the two parties and to encourage support of political parties is a vital part of covering and commenting upon political campaigns.”59×59. FEC, Advisory Opinion 1982-44, at 3; see also FEC, Advisory Opinion 1996-41 (Oct. 4, 1996) (advising a corporation that owns and operates seven television stations that it may, under the press exemption, air interviews with candidates in which each candidate is asked the same question and given five uninterrupted minutes to respond).Show More
In 1996, the FEC advised Bloomberg L.P., an online financial information network, that its proposal to host virtual town hall events in which Bloomberg customers, not professional reporters, could ask questions directly of federal candidates fell within the press exemption.60×60. See FEC, Advisory Opinion 1996-16 (May 23, 1996). In the same year, the FEC advised C-SPAN that it could air candidate video biographies and campaign commercials within its press functions as long as it maintained editorial control over the context in which those videos were presented.61×61. See FEC, Advisory Opinion 1996-48 (Dec. 6, 1996). The airing is another example of “republishing” campaign materials that would be impermissible under 11 C.F.R. § 109.21(c)(2), (d)(6) but for C-SPAN’s press exemption.Show More Two years later, the FEC advised another cable television system operator that it could offer several candidates “sufficient free time to accommodate up to 750 thirty-second spot advertisements for each of the eight weeks preceding the general election” as part of its press functions.62×62. FEC, Advisory Opinion 1998-17, at 1 (Sept. 10, 1998); see also id. at 3. A reality show featuring fake “candidates” competing in a campaign simulation was advised that it would be within the press exemption to invite real candidates on the show “to enhance the competition between the contestants.”63×63. FEC, Advisory Opinion 2003-34, at 2 (Dec. 19, 2003). The Commission decided by a vote of 4–2 that a nationally syndicated radio program was acting within its press capacity in permitting a sitting member of Congress to guest host the program with no other change in “format, distribution, or other aspects of production.”64×64. See The Honorable Robert K. Dornan, MUR 4689, at 2 (FEC Dec. 20, 1999) (statement of Vice Chairman Darryl R. Wold and Comm’rs Lee Ann Elliott, David M. Mason, and Karl J. Sandstrom).Show More
The FEC has only twice in recent years found that a media company’s activities were outside of the scope of the press exemption. In 1994, the FEC found that while a cable television provider was acting within its press exemption when it aired an editorial advocating for the defeat of a federal candidate, it was not acting within its press exemption when it included flyers opposing that candidate with its subscribers’ cable bills.65×65. See Multimedia Cablevision Co., MUR 3657, at 23–26 (FEC May 25, 1994) (Gen. Counsel’s Report).Show More When comedian Stephen Colbert established his own political action committee (PAC), the FEC advised his employer, Viacom, that it must report costs associated with producing independent expenditure advertisements and administering the committee as in-kind contributions to the PAC because these activities were not part of its normal press functions.66×66. See FEC, Advisory Opinion 2011-11, at 1–2 (June 30, 2011). These two examples notwithstanding, the FEC has almost always found a traditional media corporation to be acting within its press exemption.
The Murdoch allegations seem much more like the exceptions flagged in the last paragraph. These activities too are not normally part of what the press does.