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What About Bloggers Arguing for Ballot Measures in Washington State?

As I note below, the Washington Supreme Court just confirmed that radio talk show hosts' advocacy of a ballot measure is not regulated as a campaign "contribution" under Washington state law, because the advocacy is exempted by the "media exemption," which excludes

A news item, feature, commentary, or editorial in a regularly scheduled news medium that is of primary interest to the general public, that is in a news medium controlled by a person whose business is that news medium, and that is not controlled by a candidate or a political committee ....

But what if a part-time but very popular blogger (think of the PowerLine people, for instance) advocates for a ballot measure? Uh-oh -- the media exemption only covers media "controlled by a person whose business is that news medium." The site is likely a "news medium" (news is understood here to include opinion). But even if the site makes some money, if it's a part-time sideline for the blogger (assume it's a solo blog, just for the sake of simplicity), it doesn't sound quite accurate to say that the blogger's "business is that news medium." And that's even clearer if the site makes no money at all, or only a tiny amount (not implausible even for a site that's prominent enough that its backing may be quite valuable to a campaign).

The blog posts supporting the ballot measure may thus have to be reported as contributions. What's more, state law would limit them to $5,000 worth of help (whatever that means for a blog) "within 21 days prior to [the] election."

So too bad for you, concerned citizen: Unless your "business is [a] news medium," you're regulated. The established, professional media are of course exempt; but, no, not you.

This fortunately doesn't seem to be the case under federal law (though we can't be entirely certain); but though the Washington Supreme Court's decision suggests that Washington courts interpreting the Washington statute should generally follow federal courts' interpretation of the federal statute, here there is an express statutory difference between the two statutes -- the Washington statute has the "business is that news medium" clause, and the federal one doesn't.

John in Silicon Valley:
I disagree with how narrowly you define "business". I do not think that "business" and "livelihood" are the same thing (as your post seems to imply). Now, I work in tax, so when I think of "business" I think of "trade or business income" as distinguished from "passive" or "investment" income. Trade or business income can be derived from a business that is run part time or on the side (as it were). The only requirement is that there be an actual profit motive. It need not be enough profit to support someone, and, in fact, there does not even need to be an actual profit each year (although there should be some profit at some time or else it becomes harder to convince a judge that there actually was a profit motive). The fact that a business is run on the side does not make it any less of a business, IMHO.
4.26.2007 4:08pm
Random Thought:
There's an interesting circularity here. If the value contributed can be construed to be over $5,000 in 21 days, and assuming for simplicity that a solo blog incurs zero costs (probably not too far off), that means that over the course of the year, the blog throws off profit of approximately $87,000. That's certainly enough to qualify a sole proprietorship as a business, rather than a hobby, no?

Of course, if it doesn't throw off that much money, how can any level of support in 21 days be construed to be over $5,000 worth?

Note that it doesn't say the news medium must be the person's primary business, or (e.g.) New York magazine, owned (IIRC) by the CEO of Lazard, wouldn't count.
4.26.2007 4:28pm
Eugene Volokh (www):
John: Recall that the exemption is limited to a medium that is "controlled by a person whose business is that news medium." I don't think we'd say that I am a person "whose business is [the Volokh Conspiracy]." The Volokh Conspiracy may be a business venture of mine (though it surely didn't start out as a business venture, and it surely is not chiefly a business venture). But saying that I am a person "whose business is [the Volokh Conspiracy]" suggests, I think, that this has to be my primary line of business.

What's more, if one takes the broader view, then it's not clear what role the "controlled by a person whose business is that news medium" proviso serves (except perhaps to exclude news media that make absolutely no money). If Boeing decides to start a newsletter, then that newsletter would be Boeing's business venture, and it would be exempted under the media exemption. Yet my sense is that such non-media-business-controlled speech is precisely what the media exemption was intended not to cover.
4.26.2007 4:42pm
jaed (mail):
Simple question: What if a blog (or for that matter a more traditional media form such as a newsletter or newspaper) is run without a "profit motive"? What if in fact it doesn't make any money (as blogs without ads don't)? It seems to me that even under the logic developed here, such a news source can never come under the media exemption, since (if we're using the IRS-centric view of a "business") it can never be a business of the proprietor.

It's true blogs don't cost as much to run as newspapers or radio stations, but generally they do cost something, or at least some in-use percentage of the blogger's Internet connection, hosting, and computer depreciation. If nothing else, the time the blogger devotes to writing the posts can be considered an in-kind contribution, could it not? Let's say a lawyer who normally bills out at $150 spends a couple of hours a day researching and writing blog posts on an issue of interest, in the weeks leading up to the election.
4.26.2007 5:15pm
Jesse Wendel:
I live about fifteen miles outside of Seattle.

The plain language of RCW 42.17.020 says in a news medium controlled by a person whose business is that news medium.

When I file my taxes, I routinely have several businesses, some of which are profitable, some of which are not, depending on the year. I control these businesses. I'm clear I must control them, as my accountant and attorney have cautioned me that bad things will happen if I fail to pay taxes, fail to file regulatory certificates, and so on. They clearly are my businesses, even though I also have a full-time primary job.

If one of my businesses were a regularly scheduled news medium that is of primary interest to the general public, that is, a blog on which I regularly post news item, feature, commentary, or editorial, it seems clear I have complied with the plain language of the Code.

The law does not say the business must be my primary business. Just that the content be released in a news medium controlled by a person whose business is that news medium. If I own it, it is indeed my business, thus on the plain language of the law, the law covers bloggers running their own sites.

The law also clearly covers bloggers posting on large sites run by someone else, because that person is the primary owner of the business, the posts are of general interest to the public, posts go up on a regular basis, and the blogging business is indeed at least one of the owner's businesses. Thus, the law of Washington State is complied with.

It may not be -- indeed is probably not -- what the lawmakers intended. I believe they intended to codify bloggers out of the party, leaving the MSM in control. But on black letter law, legislative intent doesn't get looked at; plain language controls. And the plain language is clear.
4.26.2007 5:42pm
Crunchy Frog:
Why restrict it to bloggers? Say I have a public-access TV show that I host a couple hours a week (yes, a quaint concept) purely as a hobby. It's definitely "media", but also definitely not a "business". Does that mean anything I might have to say would then also be considered an in-kind contribution?
4.26.2007 5:44pm
Adam B. (www):
Bloggers are exempt from this under the federal regs multiple ways. 11 CFR 100.73, the federal media exception, now states:
Any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication, is not a contribution unless the facility is owned or controlled by any political party, political committee, or candidate...

Moreover, there's a massive "volunteer exception" which protections all sorts of uncompensated individual and group activity. Here's a good resource.

I have no idea if Washington law also has an "volunteer activity" exemption.
4.26.2007 6:24pm
Hans Bader (mail):
The danger of this happening to bloggers in Washington State is very real, given the political climate.

Recall that the Seattle Post-Intelligencer applauded the attempt to use the state campaign-finance regulations to shut down opposition by the talk-show hosts to higher taxes.
4.27.2007 10:44am