In a Federal Election Commission (FEC) session last Wednesday, Republican Chairman Lee Goodman warned that the FEC could attempt to regulate book publishers under its authority to make campaign finance rules. Chairman Goodman will be a featured panelist at this year’s RNLANational Election Law Seminar.
The heated session related to a book by Congressman Paul Ryan. The FEC “declined to definitively spare book publishers from the reach of campaign finance rules.” Chairman Goodman wanted the Commission to guarantee the book would be exempt from regulation under the “media exemption.” This is the exemption that empowers newspaper editorials to comment on politicians without regulation. The Chairman believes that book publishers should enjoy the same exemption.
During the session, Chairman Goodman said, “I think that's unfortunate. We have effectively asserted regulatory jurisdiction over a book publisher."
In an interview with Fox News, Chairman Goodman said, "That is a shame. . . . We have wounded the free-press clause of the First Amendment.” He said the refusal to include book publishers under this exception suggests “an effort to constrict the media exemption within the commission."
Two other members of the commission joined Chairman Goodman in support and released a six-page statement addressing their contention with the Commission’s vote. The statement points out that “the legislative history of the media exemption indicates that Congress did not intend to ‘limit or burden in any way the First Amendment freedoms of the press and association. . . . The Commission has not limited the press exemption to traditional news outlets, but rather has applied it to ‘news stories, commentaries, and editorials, no matter in what medium they are published.’”
The Commission uses a two-prong test to apply the media exception. “First, the Commission asks whether the entity engaging in the activity is a press or media entity. If so, the media exemption applies as long as the entity (a) is not owned or controlled by a political party, political committee, or candidate, and (b) is acting as a press entity in conducting the activity at issue.”
As Chairman Goodman observed in his statement, “the publisher’s activities satisfy both prongs of the Commission’s test. . . . Instead of subjecting press entities to content-based restrictions and inquiries, the Commission should have granted the Requestors the affirmative protection of an advisory opinion based upon the threshold determination that the publisher is a press entity entitled to the media exemption when it publishes, markets, and disseminates its book.”