Is Bill Maher proposing to cross the line from press commentary into campaign activity, or is he merely innovating, as the press is  scrambling everywhere to do, and preparing for a New Wave Editorial?  As Rick Pildes suggests, this question is mooted by Citizens United, which means that HBO and Maher can count on this decision to provide him much of the space he may need for his editorial project. Prior to Citizens United, HBO would have struggled to defend this program; in the wake of the decision, the path is generally clear, depending on how Maher produces the show.

The majority in Citizens United suggested that media corporations should be glad for this controversial turn of the doctrinal wheel.  The long-standing distinction between media and other corporations could not be defended, they wrote.  So if the Austin case they overruled somehow came to life, and the corporate spending ban was rigorously and consistently applied, the special privileges long enjoyed by media corporations would have to fall away.  Citizens United v. FEC, 558 U.S. 310, 352 (2010) (“With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.”).

So the line between political opinion and “news commentary” has been badly smudged.  As Pildes notes, Professor Michael McConnell has argued that this development should be taken to a logical conclusion and all press commentary, regardless of source, should be constitutionally protected.  In other words, we would do away with the regulatory standard that, in distinguishing between press and other entities, would cloak in the press exemption only those organizations that were “press entities” and spent their money on a “legitimate press function.”  In McConnell’s world, all that should matters is the nature of the speech: if it is opinionated speech, it is safe from regulation.   Michael W. McConnell, Reconsidering Citizens United as a Press Clause Case, 123 Yale L. J. 412 (2013).

The McConnell view, as doctrine, runs into objections, but it does have the virtue of simplicity. It also raises interesting questions of application. For example, if organizations of any kind can produce editorials and commentaries within the press exemption, why not political parties as well?  Should a party be able to finance freely, outside contribution limits and source restrictions, the establishment of  a cable network dedicated to disseminating party news and opinion?

Once in this nation’s history, the press was partisan; and now segments of the media industry are strongly—and, in seeking out audience share, consciously—associated with specific partisan political and ideological interests.  It is not clear why large commercial corporations can finance without financing limits what some take to be a political press, but the political parties cannot.

Federal law denies the protections of the “press exemption” to an organization owned or controlled by a party.  2 U.S.C. § 431(9)(B)(i).  The FEC has enforced this restriction strictly, applying it to party institutional interests without regard to whether the an organization associated with a party actually endorsed or made contributions to specific candidates. For example, in one case the FEC  considered, the Republican organization proposing to print a newsletter was a 527 “political organization” for IRS purposes, but also contemplated converting to 501(c)(4) tax-exempt status.  FEC Advisory Opinion 1988-22 (July 5, 1988).  It would not register with the FEC to make contributions or expenditures.  The Commission  ruled that the organization could still not have the benefits of the press exemption because the newsletter was free: no fee for subscriptions or individual copies was charged.  And, the Commission noted, if the organization did begin to make contributions or expenditures and became a “political committee,” it would be subject to the ban on party ownership or control of media facilities.

The predictable defense of banning a deregulated party press will be that parties corrupt candidates—that the money parties raise for the press function will flow through to the candidates, corrupting them. This is the theory behind McCain-Feingold, and it has contributed to ushering in the era of super PACs and emboldened 501(c)(4) organizations.

This fear of corruption may have some bearing on the level of regulation: it does not justify treating all party press activity as equivalent to campaign activity and regulated in the same way. For example,  if this claim about the unique nature of parties is factored into the analysis, a concern over corruption could be addressed with a disclosure requirement.

Of course, parties might not need a media outlet for the dissemination of their commentaries.  Their websites and other Internet communications may be enough for this purpose, and the law has adjusted somewhat to low-cost, no-cost political press in cyberspace.

The larger point about Citizens United and its implications still stands, however. If commercial corporations can have their own press outlets, and if tax-exempt groups of one kind or the other can produce press of their own, the parties seem altogether isolated.  Under the current state of the law,  all party press and commentary is campaign activity; all party opinion is regulated on that basis.  Meanwhile, big companies—media corporations and others—can freely pay for their opinion on issues.  So can the super PACs.  So can tax-exempt organizations.

And as the Maher project shows,  the form of editorializing may evolve, dimming still more the conventionally defined line between “campaign” and “press” activity.   This is the painful difference for parties, and the problem for them in the post-Citizens United era: only for the political parties does the convergence of press commentary and campaign speech result in more, not less, regulation.

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