When Are Media Outlets – Political Actors?

When do major media outlets become de facto political actors, political action committees, corporations violating the spirit or text of Federal Election Commission (FEC) proscriptions, thinly disguised partisans? When do they become liable as political actors?  When do they become a legal arm of the Democrat Party?  These questions are now worth asking.

The pile of examples is getting so high, one need only read a news story to assess that a news outlet – mainstream print, cable, or network – is in the political game.  With them, more “woke” companies are becoming partisans first, shareholder fiduciaries second, honest brokers last.

The law has yet to be fully mapped, but some provisions are worth revisiting.  Here are a few.  The FEC – which the Democrats want to convert to one-party control by passing S. 1 – is charged with investigating campaign violations.  Laws they enforce are illuminating.

Under prevailing law, “corporations,” as well as “labor unions,” “federal government contractors,” and “foreign nationals” are “prohibited” from making contributions or expenditures to influence federal elections.  In addition, particular groups are foreclosed from expenditures in state and local elections.

While the door is open to expenditures of certain types, for certain purposes, by certain groups, the line is not always clear.  While corporations may establish “political action committees,” restrictions apply.  If they have a “separate segregated fund” for political campaigns, it must comply with the FEC Act, and “disbursements” – presumably including in-kind gifts – must be reported.

Communications on political topics are allowed, but to a “restricted class,” which broadly means internal personnel, stockholders, and related entities or persons.  Broader messaging, communications meant to tip an election or political outcome – by a major company – are subject to other limits.  The law is detailed, but are we looking closely?

The sad reality is that major media, which are big companies, happen to have political agendas, enormous influence over public opinion, and could arguably be viewed as offering in-kind contributions to state and federal candidates, parties or groups aiming to block or support state and federal legislation, ballot initiatives, and other political outcomes.

The question is – where is the line?  Where does a neutral media outlet become a partisan promotor of a clear political agenda, offering de facto in-kind contributions to candidates or causes?  In truth, the answer is unclear, but as major media outlets – which are corporations subject to federal and state laws – get more partisan, the question arises:  Where is the limit?  At what point does the reporting organization become, after all, a political advocacy group?

A recent example, which surfaced last week, is the way major media reported the attempt by Georgia to protect citizens and their electoral process, seeking to assure election integrity and States’ rights (i.e., 10^th Amendment), against an anticipated Biden push for federal control over elections.

News outlets rallied behind – and this is a separate question – major corporate decisions to shun Georgia for pushing election integrity provisions, such as voter identification, in-person voting, and protections against fraud.  If this sounds absurd, welcome to the absurd. See, e.g., https://www.foxnews.com/opinion/tucker-carlson-georgia-election-law-mlb-all-star-game; https://www.al.com/news/2021/03/delta-ceo-georgia-election-law-unacceptable-and-based-on-a-lie.html; https://slate.com/news-and-politics/2021/04/trump-major-league-baseball-boycott-georgia.html.

The big issue was how big media treated this back and forth, corporate shunning, Georgia’s defense of constitutional prerogatives, and downstream effects.  One example stands out.  CBS issued a bizarre endorsement of corporate shunning of Georgia’s election integrity effort.  They advocated “three ways companies can help fight Georgia’s restrictive new voting law,” and then instructed how corporations – raising another liability issue – could, and presumably should, combat the Republican-supported state law.  See, e.g.,  https://www.foxnews.com/media/cbs-news-scrubs-headline-panned-as-dem-activism-on-report-promoting-fight-against-georgia-election-law.

The incident is not unique, and one could argue that both media and social media are edging up to the line, but when does such political advocacy – which in this case affects our national election process – become objectionable?  When does it legally become actionable? When does it trigger FEC and nationwide reexamination, at the state and federal levels, of seeming in-kind contributions by major media and social media to the Democrat Party?

This analysis offers no answer, just an open question.  That said, several things are clear.  Major media and social media outlets appear – on basic content analysis – to be evolving into unapologetic political advocates, activists, and partisan actors. The credibility of such news organizations is mortally wounded, if not fatally compromised.  Finally, time is coming when media outlets are no longer indistinguishable from political actors, raising serious legal questions – so far not answered.