"'Tis the Season to be Nasty"

See this CBSNews report, blaming McCain-Feingold in part for negative campaigning, as groups like Club for Growth try to get their issue ads in before the 30 day limit applies.

Ackerman on NRA Media Exemption

Following up on this story, NPR's All Things Considered interviewed Bruce Ackerman about whether the NRA should be allowed to take advantage of the media exemption. Audio link here. I found the interview very unsatisfying, in part because neither Ackerman nor the interviewer ever carefully focused on the right question: it is not whether the NRA should be exempt from otherwise applicable campaign finance regulations if it owns a media outlet. It is whether, if the NRA owns bona fide media outlets, can it gain exemptions for news stories, editorials and commentaries? On the latter question, of course it should. The hard part, as we know from the Massachusetts Citizens for Life case, is figuring out what a bona fide media outlet is.
UPDATE: The Los Angeles Times offers this story. And Marty Lederman sends in the following comments:

There are several inaccurate things about the Ackerman spot, such as his statement that the media exemption derives from the Free Press Clause (rather than from FECA and, in this case, BCRA), his suggestion that the NRA and other corporations can even now make independent expenditures (e.g., ads in the NYTimes), presumably using treasury funds, and his failure to explain that the issue in these cases is use of treasury funds v. the PAC requirement.

But I don't think it's clear that the relevant question is, as you suggest, whether the NRA's braodcast station would be a "bona fide media outlet." The applicable FECA and BCRA exemptions apply to 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." 2 USC 434(f)(3)(B)(i); 2 USC 431(9)(B)(i). The outlet that the NRA is seeking to purchase presumably would be a "broadcasting station" under the terms of these statutes. There is no further statutory requirement that the "outlet" be "bona fide." (The issue in Massachusetts Citizens for Life was whether the newsletter was a "periodical publication." That question is not relevant here, in the case of a "broadcasting station.")

The relevant statutory question, in other words, would be whether the partisan communications the NRA wishes to broadcast through its broadcasting station would "appear[] in a news story, commentary, or editorial."

Having said all that, I have to acknowledge that the FEC has in the past indicated -- at least in the context of periodicals and newspapers, rather than broadcasting stations -- that a particular medium might not be eligible for the exemption if its revenues are not ordinarily derived from advertising and/or subscriptions. See 44 Fed. Reg. 76,735 (1979). I've previously discussed the facts that: (i) this requirement does not derive from the statute itself, but is instead based on legislative history, particularly a floor statement of Senator Taft in 1947; and (ii) Three of the six current FEC Commissioners would jettison this requirement.

But even if the FEC and the courts were to retain this revenue-source requirement -- a big "if" -- the NRA could still qualify for the exemption as long as the broadcasting station in question did "ordinarily" derive its revenues from advertising, in which case the only question would remain whether the political communications in question were, in fact, "commentar[ies] or editorial[s]."

Thanks for writing!

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
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