Is The FEC Press Exemption At Risk?

Politico and other press entities are reporting on an enforcement matter against conservative radio show host Sean Hannity that was just released by the Federal Election Commission (“FEC”).  A New York Democratic Party official filed the complaint against Hannity and the media corporations that distribute his shows because he sent an email promoting a conservative candidate for congress in New York.  The email also asked recipients to contribute to the conservative candidate’s campaign committee.  The enforcement matter is MUR 6320.

In this matter, the Office of the General Counsel recommended dismissing the matter and closing the file because, among other things, the email falls within the press exemption which provides wide latitude to press organizations to discuss, endorse and support candidates as part of their editorial processes.  Traditionally, the Commissioners dismiss these types of complaints unanimously and in a bipartisan manner.  In the Hannity matter, however, two Democratic Commissioners rejected the staff recommendation and voted to proceed with an investigation.  The result is that many in the regulated community are scratching their heads wondering whether some Commissioners are taking a new look at the press exemption’s boundaries.

One of the Democratic Commissioners, Ellen Weintraub, went on the record with Politico and offered the following explanation for her vote:

Ellen Weintraub, one of the two Democrats who voted against dismissing the case, told POLITICO she “thought that (Hannity’s email) did not qualify for the media exemption and that there was a violation” because Hannity wasn’t acting in his “normal media capacity” when he sent out the email.

“A newspaper can run an editorial endorsing a candidate, but if it then goes out and places a billboard, that’s a different story – that’s not what it normally does,” she said. “Just because you’re a journalist, doesn’t mean that you have a total exemption for any activity that you do and the same follows here,” she said.

The billboard analogy is an interesting one since in MUR 5679 the Pennsylvania Republican Party filed a complaint against the Scranton Times-Tribune and Casey for Senate because the newspaper purchased advertising that included a faux headline promoting Democratic Senate candidate Bob Casey.  According to the complaint, the newspaper placed advertisements on billboards, banner ads on buses, and television ads under the headline “Better Together” with the fictitious headline “Casey to Run for Senate” and next to it another referencing the Terry Schiavo matter – one of the Democratic Party’s primary attacks against then-Senator Rick Santorum.  The complainant was also upset about public records indicating that the family who publishes the newspaper were Democratic donors at the time.  The complaint alleged that the advertising campaign contained express advocacy and falls outside of the press exemption.  All six Commissioners voted to dismiss the matter, including Commissioner Weintraub.

The Hannity matter may be one that deserves a detailed Statement of Reasons from the Commissioners who voted against dismissing the complaint.  Because the communications at issue involve email, the regulated community needs to know whether some commissioners are not only taking a fresh look at the press exemption, but also the exemptions to the definitions of contribution and expenditure that protect political bloggers and other internet communications.  If these Commissioners are considering a new approach to these issues, despite the firm precedence on these issues and the internet regulations adopted in 2006, the regulated community and the conservative and liberal blogospheres need clear notice of this new position.

The internet must remain a free speech zone.  As the majority stated in the Citizens United decision:

Rapid changes in technology – and the creative dynamic inherent in the concept of free expression – counsel against upholding a law that restricts political speech in certain media or by certain speakers.  Today, 30-second television ads may be the most effective way to convey a political message.  Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues.  Yet, [the law at issue] would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds.  The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.  Slip Op. at 49.

I look forward to reading the Statement of Reasons explaining the Hannity matter.

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