State Supreme Court clarifies scope of campaign finance law's "media exemption"
Washington State's highest judicial body unanimously ruled this morning that on air campaigning for Initiative 912 in mid-2005 by Fisher Broadcasting's John Carlson and Kirby Wilbur was covered by the media exemption in the state's Fair Campaign Practices Act (FCPA), overruling a Thurston County Superior Court opinion issued twenty two months ago.
The decision means the broadcasts in question (from Wilbur's morning show and Carlson's now defunct afternoon show in 2005) are not considered contributions under the FCPA. Future broadcasts will assuredly not be subject to limits or reporting requirements unless the law is rewritten.
In 2005, we argued that Wilbur and Carlson (who are no strangers to political activism) had clearly stepped out the realm of simply "discussing issues and recommending action" (editorial commentary) in spearheading a signature drive to qualify an initiative to the ballot, using the public airwaves.
As the Court put it:
It's defined as follows:
It's based on ownership.
Our interest is in seeing that the Fair Campaign Practices Act and other related laws be enforced fairly and equally. While we did read the law differently in 2005, we're appreciative that the Supreme Court has clarified the issue.
Under the proper interpretation of the law, the broadcasts weren't subject to reporting requirements. We stand corrected - and we welcome this ruling.
However, we'll also point out that supporters of Carlson and Wilbur have previously misconstrued what the case is about - and they are doing so again today by claiming they've won a free speech victory. But the issue in the case wasn't the First Amendment, it was interpretation of campaign finance law. The Court itself noted:
This is a difficult issue. It's a balancing act between protecting constitutionally guaranteed freedoms (i.e. speech, press, assembly) and preventing corrupt practices, including abusive electioneering.
The Court addressed the possibility of reform in a footnote, stating:
An interesting question not mentioned in the state Court's opinion is whether blogs and online media fall under the press exemption. The FCPA and related federal laws were written before the days of the Internet and widespread citizen journalism. Blogs that are continuously updated would seem to fit the definition of a "regularly scheduled news medium that is of primary interest to the general public".
But the real sticking point, again, is ownership. Blogs or websites owned by candidates and political parties would not fall under the press exemption. But what about online media belonging to citizen activists or groups?
If John Carlson and Kirby Wilbur - who are partisan Republican operatives, not objective journalists - can campaign from a radio station and enjoy the benefits of the media exemption under the law as it exists, then so can every other commentator, including those who publish online.
If we're going to have a media exemption, then it can't just be for traditional media (newspapers, television stations, and radio outlets). It must also apply to individuals and entities operating online media. That actually could help safeguard against the possibility of media corporations playing king maker.
A huge aspect of the Northwest Progressive Institutes's work is communicating directly with the public through the Internet. We offer commentary, editorials, features, and occasionally even breaking news which is definitely of interest. We also campaign for or against ballot measures and candidates, and we lobby to influence the outcome of legislation.
Because our business is using the medium of the Internet to transmit information, we ought to qualify under the media exemption as it has been written and interpreted, as should others. Still, the exemption could be strengthened by adding language that explicitly protects independent bloggers and pioneers of new media.
A number of bloggers have already sought broad legal protection by incorporating to protect themselves - and that trend is likely to continue. (NPI has been registered as a nonprofit corporation since early 2005).
The role of bloggers and online media today is well described by the United States Supreme Court in Austin v. Michigan Chamber of Commerce: informing and educating the public, offering criticism, and providing a forum for discussion and debate. The highest court in the land used those words to characterize the traditional media, but that's also what we do, and what the blogosphere (including the regional netroots community) does, on a daily basis.
Today's State Supreme Court decision certainly doesn't resolve all the issues or answer all the questions arising from interpretation of campaign finance and disclosure laws. But it does provide valuable guidance to Public Disclosure Commission staff, policymakers, and lower courts throughout Washington.
The decision means the broadcasts in question (from Wilbur's morning show and Carlson's now defunct afternoon show in 2005) are not considered contributions under the FCPA. Future broadcasts will assuredly not be subject to limits or reporting requirements unless the law is rewritten.
In 2005, we argued that Wilbur and Carlson (who are no strangers to political activism) had clearly stepped out the realm of simply "discussing issues and recommending action" (editorial commentary) in spearheading a signature drive to qualify an initiative to the ballot, using the public airwaves.
As the Court put it:
Wilbur and Carlson strongly criticized the legislature's enactment of the fuel tax and devoted a substantial portion of their radio broadcasts to supporting the I-912 campaign.Normally, that kind of communication would be considered a campaign contribution, which has a broad definition in the FCPA:
In particular, they encouraged listeners to contribute funds to No New Gas Tax [NNGT], to visit NNGT's web site and offices to obtain petitions, and to circulate and gather signatures on the petitions in order to qualify the initiative for the ballot.
(i) A loan, gift, deposit, subscription, forgiveness of indebtedness, donation, advance, pledge, payment, transfer of funds between political committees, or anything of value, including personal and professional services for less than full consideration;The same statute that spells out the meaning of contribution also outlines a number of exemptions, including the media exemption - the issue in this case.
(iii) The financing by a person of the dissemination, distribution, or republication, in whole or in part, of broadcast, written, graphic, or other form of political advertising or electioneering communication prepared by a candidate, a political committee, or its authorized agent;
It's defined as follows:
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.According to the Court, what Carlson and Wilbur did on air is basically irrelevant, because qualification for the media exemption is not based on content, speaker's motivations, intent, sources of information, or connection with a campaign.
It's based on ownership.
The prosecutors argue, and the trial court agreed, that Wilbur's and Carlson's broadcasts supporting the initiative, fall outside the media exemption because the broadcasts constitute "political advertising" rather than "commentary."The broadcasts qualify for the exemption because the medium (KVI) is owned by Fisher Broadcasting, which controls dozens of television and radio stations in the region. Air time that falls under the media exemption cannot be considered a reportable contribution, the Court said, despite previous Public Disclosure Commission orders and advisories to the contrary.
[...]
By incorporating the media exemption into the definition of "contribution," the voters plainly intended to protect publications that would otherwise constitute a "contribution" subject to regulation.
In order to give effect to the voters' intent, it is necessary to determine whether the media exemption applies before considering whether the communication at issue otherwise falls within the definition of "contribution."
Thus, the initial inquiry is whether the news medium is controlled by a candidate or political committee and whether it was functioning as a regular news medium with respect to the conduct in question.
We reject the PDC's interpretation as contrary to the statutory media exemption. There is no express advocacy or solicitation limitation to the media exemption. Although the term "commentary" is not defined, we believe that it plainly encompasses advocacy for or against an issue, candidate or campaign, whether that involves the solicitation of votes, money, or "other support."What this ruling means is that individuals who work for news conglomerates or other media organizations may enjoy the protection of the exemption even if they're involved in campaign activity.
Our interest is in seeing that the Fair Campaign Practices Act and other related laws be enforced fairly and equally. While we did read the law differently in 2005, we're appreciative that the Supreme Court has clarified the issue.
Under the proper interpretation of the law, the broadcasts weren't subject to reporting requirements. We stand corrected - and we welcome this ruling.
However, we'll also point out that supporters of Carlson and Wilbur have previously misconstrued what the case is about - and they are doing so again today by claiming they've won a free speech victory. But the issue in the case wasn't the First Amendment, it was interpretation of campaign finance law. The Court itself noted:
Because we hold that the radio broadcasts at issue are not a "contribution" we do not address whether the disclosure requirements of the FCPA are unconstitutional as applied to No New Gas Tax.There may certainly be a future discussion about whether the media exemption (and perhaps the Fair Campaign Practices Act in general) needs to be fine-tuned or adjusted through legislation.
Whether, and to what extent, a media exemption is constitutionally required is beyond the scope of this opinion.
This is a difficult issue. It's a balancing act between protecting constitutionally guaranteed freedoms (i.e. speech, press, assembly) and preventing corrupt practices, including abusive electioneering.
The Court addressed the possibility of reform in a footnote, stating:
At oral argument, the prosecutors argued that without the limiting construction imposed by the PDC, media corporations could become "king makers," providing their favored candidates and ballot measure advocates with unlimited access to the airwaves. But this is an argument more appropriately directed to the legislature.The Court's decision included useful analysis examining the applicability of the media exemption, including references to federal case law such as Federal Elections Commission v. Massachusetts Citizens for Life, Inc.. In that case, the U.S. Supreme Court concluded that a corporation, group, or union which publishes an "in house publication" is not automatically entitled to the media exemption.
The media exemption represents a policy choice to accord full protection to the first amendment rights of the press even at the expense of countervailing societal interests that may be served by campaign finance regulations. We note that nothing in our decision today forecloses the legislature, or the people via the initiative process, from limiting the statutory media exemption.
An interesting question not mentioned in the state Court's opinion is whether blogs and online media fall under the press exemption. The FCPA and related federal laws were written before the days of the Internet and widespread citizen journalism. Blogs that are continuously updated would seem to fit the definition of a "regularly scheduled news medium that is of primary interest to the general public".
But the real sticking point, again, is ownership. Blogs or websites owned by candidates and political parties would not fall under the press exemption. But what about online media belonging to citizen activists or groups?
If John Carlson and Kirby Wilbur - who are partisan Republican operatives, not objective journalists - can campaign from a radio station and enjoy the benefits of the media exemption under the law as it exists, then so can every other commentator, including those who publish online.
If we're going to have a media exemption, then it can't just be for traditional media (newspapers, television stations, and radio outlets). It must also apply to individuals and entities operating online media. That actually could help safeguard against the possibility of media corporations playing king maker.
A huge aspect of the Northwest Progressive Institutes's work is communicating directly with the public through the Internet. We offer commentary, editorials, features, and occasionally even breaking news which is definitely of interest. We also campaign for or against ballot measures and candidates, and we lobby to influence the outcome of legislation.
Because our business is using the medium of the Internet to transmit information, we ought to qualify under the media exemption as it has been written and interpreted, as should others. Still, the exemption could be strengthened by adding language that explicitly protects independent bloggers and pioneers of new media.
A number of bloggers have already sought broad legal protection by incorporating to protect themselves - and that trend is likely to continue. (NPI has been registered as a nonprofit corporation since early 2005).
The role of bloggers and online media today is well described by the United States Supreme Court in Austin v. Michigan Chamber of Commerce: informing and educating the public, offering criticism, and providing a forum for discussion and debate. The highest court in the land used those words to characterize the traditional media, but that's also what we do, and what the blogosphere (including the regional netroots community) does, on a daily basis.
Today's State Supreme Court decision certainly doesn't resolve all the issues or answer all the questions arising from interpretation of campaign finance and disclosure laws. But it does provide valuable guidance to Public Disclosure Commission staff, policymakers, and lower courts throughout Washington.
