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.

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