Yesterday, the Federal Election Commission (“Commission”) voted four to 1 that Citizens United’s movie activities are not subject to the Federal Election Campaign Act’s disclosure requirement under the media exception. Vice Chair Bauerly joined with the three Republican Commissioners in approving Citizens United’s advisory opinion request.
This is an interesting development for a couple of reasons. First, one must wonder what the campaign finance world would look like today if the reformers and the Commission had adopted the same reasonable approach by applying the media exception to Citizens United’s original advisory opinion request in 2004. Perhaps the Commission and the reformers will finally learn that the regulation of political activities and speech should be determined by a four-corners, objective review of an individual or organization’s activities and speech, not a subjective, context-based classification of an organization’s characteristics or identity.
Second, Congressional Democrats are still pushing the DISCLOSE Act as a means to chill political speech by corporations and nonprofits. The legislation seeks to preserve the media exception in current law which is intended to apply only to traditional media conglomerates such as the New York Times, Washington Post, and television networks and cable shows. (Before anybody overreacts, I am not discussing the internet issue in this post – I will do that in the near future.)
The Commission just properly classified an ideological nonprofit as a press entity. If Citizens United, an ideological nonprofit, is eligible for the press exemption in connection with its movie producing and promotional activities, what about other nonprofits that produce and market videos designed to educate the general public about an issue or an officeholder’s actions? How do these activities differ from a news segment on a cable news show? YouTube has inspired citizen journalists to cover events and publish their reports. What if the reports are produced by a small group of activists organized as a nonprofit corporation? What if they produce a documentary that is biased, attacks an issue and a federal candidate’s position on the issue to raise awareness of the issue, and they raise enough money to place the documentary on local cable? Are they eligible for the media exception?
This is why the Supreme Court highlighted that it is folly to distinguish between speakers based on their identity, whether corporations versus other political speakers, or other political speakers versus press entities. When you conduct an objective, four-corners review of the DISCLOSE Act and its implications, you must conclude that it is a bill designed to discriminate between favored and disfavored speakers and there is no rationale explanation for the disparate treatment.
Listed below are a few links about the Citizens United advisory opinion:
FEC Extends Press Exemption To Citizens United, Federal Election Commission Press Release
FEC Votes 4-1 to Grant Citizens United “Media Exception” from Disclosure Rules, BNA Money & Politics Reports