The FEC tries to make up its mind, case by case, whether an organization distributing political material is a “press entity” engaged in a “legitimate” press function.  It concluded some time ago that Citizens United was a press organization when producing and distributing documentaries.  Advisory Opinion 2010-08 (June 11, 2010). This year it could not decide whether to bestow similar grace on another documentary producer, one who evidently does not care for President Obama.

Commissioner Weintraub tersely noted that the producer sent free samples of his product to millions of households in 2012 “swing states.”  This was enough for her to conclude that the producer may have been a “press entity” but it was not acting like one: it was not engaged in a “legitimate” press function.

The General Counsel reached a different conclusion and recommended that the FEC let things go—that it exercise its broad discretion in the producer’s favor.  It seemed to agency counsel that this particular press entity was acting legitimately enough. The General Counsel credited the claim that the free distribution was a commercial promotion and not only, if predominantly, in “swing states.”  The producer appeared to have demonstrated sufficient commercial or business purpose by arranging for sales through websites and via Amazon, and by contracting for streaming services through both Amazon and Netflix.

Commissioner Goodman, joining his Republicans in voting with the General Counsel, added a charge that the Democratic objections were a threat to press freedom.

The Commission has had experience with this issue before, mostly famously in the case involving advertising for Michael Moore’s Fahrenheit 911.  The FEC has wound up in a bad place.  It has a media exemption to apply but no coherent and well-articulated test for its application.  The term “press entity” is not defined by statute or regulation, and this federal agency is also stuck with the task of determining when those entities are going about their business “legitimately.”  The law the FEC is struggling to apply is old and appears particularly decrepit as the world around it—and the meaning of “media”—changes.  As my colleague Brian Svoboda noted at the time on Twitter, we have examples now of newspapers like The Boston Globe testing assumptions about “legitimate” press coverage.

Professor Michael McConnell has suggested that the way out is to provide pure opinion with Press Clause protection. The protection would attach to the nature of the commentary–opinion about public officials and candidates–not to the status of the speaker.  He would distinguish between this speech and activities more like what we would expect from campaigns, such as voter registration and get out the vote activities, or any support that could be characterized as a “contribution.”  The law could reach only the contributions or campaign-type activity.  Pure opinion would all fall within the blanket protection now afforded only the formally–but no longer easily or comfortably–recognized “press.”

An obvious objection is that, even if the Court’s jurisprudence does not treat them as so dangerously corruptive that they can be limited, independent expenditures have enough influence that at least transparency measures are justified.  The question is the magnitude or significance of the loss of transparency.  If it is not a political committee, the organization engaged in independent spending does not report the source of its funding.  It reports how much it has spent in the aggregate.  And like the producer in this most recent FEC enforcement matter, it is not always hiding its formal identity. Chasing viewers or readers, it typically goes by some name, leaves some trace.  But not always, and so there will always be some cost, and the cost arguably increases along with the level of the spending.

Whatever the merits of the McConnell theory, it helps expose the problems with the regulatory test the FEC is expected to apply to determine which speakers are “press” and when they are acting as the press should.  This “test” cannot work well, and the FEC is put in an impossible position, its credibility taxed still more, trying to make it work.  Here is another suitable topic for reconsideration as part of an agenda for campaign finance reform.