Citizens United Redux: The Masses Deserve A Media Exemption Too

Eric Wang Institute for Free Speech
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Four years after Citizens United won its landmark Supreme Court case, the scrappy non-profit is still fighting for the right to be treated equally as the big dogs. Contrary to the popular misconception that the decision opened the floodgates for massive corporate political spending, the ruling actually reversed a trend over the past forty years of campaign finance laws regulating average citizens more stringently than large media corporations. However, to this day, citizens who band together and spend no more than a paltry amount on political speech still face far greater hurdles than do multibillion-dollar companies like Time Warner, News Corporation, and ABC.

Earlier this month, Citizens United filed a federal lawsuit challenging this discrimination. As in most other jurisdictions in the country, Colorado law provides a “media exemption,” whereby the traditional press is free to report and comment on politicians and elections without having to include disclaimers in their speech and file burdensome reports with regulators about their spending and sources of funding.

Citizens United contends the law does not allow an exemption for “other speakers — including other media entities — that are engaged in similar political speech.” Citizens United proposes a very simple principle: Those who are engaged in the same functional activities as the media establishment deserve the same freedom from regulation, regardless of their organizational form.

Specifically, Citizens United would like to produce a documentary about Colorado politics. However, if it spends more than $1,000 on the film, it becomes subject to regulation if the film happens to mention a candidate within a month before a primary or two months before a general election, or if it appears to advocate for a candidate. Meanwhile, the major networks presumably spend millions of dollars each week doing the same thing with shows like Meet the Press, the O’Reilly Factor, or the Rachel Maddow Show. I say “presumably” because, unlike groups which lack the official status of “the media,” the recognized news networks are not required to report how much they pay their talking heads and producers, or how much they charge their advertisers.

Before challenging the Colorado law, Citizens United first approached state regulators to see whether it too could avail itself of the media exemption. But officials rebuffed its request, pointing to the state’s antiquated laws, which only exempt newspapers, magazines, “other periodical[s],” and “broadcast facilit[ies]” from the disclaimer and reporting requirements, thus excluding more recent forms of media, such as internet streaming and even DVDs, which have only been around for twenty years. Moreover, while Citizens United intends to license its films to certain broadcast outlets, it also could not qualify as a broadcaster because it did not own the broadcast facilities.

The Colorado officials cannot be faulted, however, for their unfortunate application of the state’s inherently discriminatory laws. Working with the media exemption is like wrestling with a pig; even when the doctrine is used to reach the right results, it is impossible to walk away with clean hands.

For example, when the Federal Election Commission granted the media exemption to Citizens United in 2010 under the federal law, the agency was forced to distinguish its contrary decision six years earlier. While Citizens United had only produced two documentaries in 2004, the FEC explained, “the volume and frequency of [its] film production have [since] increased substantially.” The agency then proceeded to deny, disingenuously, that it was effectively “impos[ing] a requirement that an entity seeking to avail itself of the press exemption first demonstrate that it has a track record of engaging in media activities” because, otherwise, the FEC would have needed to acknowledge that the law discriminates against newcomers.

Going back to the 2010 Citizens United case, the Supreme Court struck down the federal law prohibiting most corporate entities, other than media outlets, from commenting on candidates and elections. “There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not,” the majority wrote. But the Court then proceeded to uphold the disclaimer and reporting requirements for political speech, which apply to everyone except the media. Had the majority consistently applied its categorical principle of not treating the media differently, it would have been forced to gut most of the campaign finance laws – an outcome it was not prepared to reach.

The first Citizens United case touched on such a nerve for campaign finance law supporters because it underscored an inconvenient paradox in the regime, whereby speakers were treated differently based on their identity, and government regulators decided whether to confer speakers with favored class status. The latest Citizens United case picks up where the Supreme Court left off the first go-round, and the challenge it poses is every bit as substantial and vexing for defenders of the status quo.

Eric Wang is a political law attorney and Senior Fellow with the Center for Competitive Politics.