My friend and fellow lawprof Rick Hasen writes:
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. . . .” . . .
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.”
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. . . .
This, it seems to me, just illustrates the problem with restricting corporate speech, exempting the media, and then deciding what’s “bona fide” media and what’s not. Why are opinionated media organizations started? Generally to express viewpoints, and often to influence elections (since that’s often the ultimate goal of much expression of viewpoints). I assume that Air America is owned by a corporation, since the corporate form is the most effective way of operating that sort of entity. It’s a corporation that puts out the show for electioneering purposes and to produce commentary programs. Likewise for the Rush Limbaugh show, The New Republic, The National Review, and so on.
Programs put on for “electioneering purposes” and “commentary programs” thus aren’t antonyms — they often overlap, because people often engage in commentary to directly or indirectly influence elections (whether ones that are coming up right away or ones that are many years in the future). There’s nothing un-bona-fide about starting a radio station to comment in ways that may influence an election.
Of course, the FEC may indeed decide to prohibit the NRA program but allow other, established media. But the real reason would be simply that it’s discriminating in favor of the existing organizations and against newcomers, not because there’s something fishy or not bona fide about the NRA project.
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