Eliza Newlin Carney

Rules of the Game

By Eliza Newlin Carney

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RULES OF THE GAME

Who's A Journalist?

The FEC Recently Named Citizens United A News Organization, Further Blurring The Lines Between Journalism And Advocacy

Updated: December 18, 2010 | 9:22 p.m.
July 6, 2010

When the Federal Election Commission ruled last month that the advocacy group Citizens United could skirt certain campaign finance laws by calling itself a news organization, few reporters paid much attention.

But journalists might want to take notice. The FEC's extraordinary step, which exempts Citizens United from the disclosure rules that apply to most politically active groups, has implications for the media industry as well as for campaigns.

The FEC's 4-1 advisory opinion allows Citizens United to produce documentary films that look an awful lot like campaign ads without saying who paid for them. The opinion directly contradicts what the Supreme Court said about the group's documentary filmmaking in its landmark Citizens United v. Federal Election Commission ruling. It also clears the way for any number of political activists to get around the disclosure laws simply by calling themselves journalists, critics say.

Politicians double as pundits, broadcast commentators fire up crowds at rallies, and interest groups put out blogs, newsletters and even TV programs.

For anyone who's forgotten, Citizens United challenged the constitutionality of both campaign finance and disclosure restrictions before the Supreme Court. The high court agreed in part, throwing out the ban on direct corporate and union political spending. But it unanimously upheld the disclosure rules.

The court, moreover, explicitly rejected Citizens United's argument that the political film at issue -- "Hillary: The Movie" -- was documentary journalism. Instead, the court found that "the movie, in essence, is a feature-length negative advertisement that urges viewers to vote against Senator [Hillary Rodham] Clinton for president."

In a statement explaining the FEC's unusual opinion, commission chairman Matthew S. Petersen stressed that Citizens United has produced 14 documentary films and has four more in the works. The FEC had rejected a similar request from the group in 2004, Petersen noted, but at that time Citizens United had put out only two films. In recent years the FEC has interpreted the press exemption increasingly broadly, he added.

But reform advocates, who had lobbied the FEC to reject Citizens United's request, noted that the group does not even call itself a press entity on its website, instead touting its commitment to "education, advocacy and grassroots organization." It spends only a quarter of its budget on making movies.

Citizens United President David Bossie has been quoted calling his organization an "interest group" and touting the need for "offensive political tools" to advance its agenda, "whether it's a 30-second TV spot or a full-length feature," said organizers for Democracy 21 and the Campaign Legal Center in public comments to the FEC.

"If Citizens United is considered by the Federal Election Commission to be a press entity exempt from all campaign finance laws, it's difficult to imagine a political advocacy organization that wouldn't be exempt in the eyes of the current FEC," said Campaign Legal Center associate counsel Paul S. Ryan in an interview.

For bona fide journalists, the Citizens United controversy is just the latest signal that traditional rules and bright lines are on the way out. As Internet platforms and citizen journalism reinvent the news industry, the line between advocacy organizations and press entities is fading. Politicians double as pundits, broadcast commentators fire up crowds at rallies, and interest groups put out blogs, newsletters and even TV programs.

Some media professionals maintain that this makes First Amendment protections all the more crucial. In a Citizens United amicus brief, the Reporters Committee for Freedom of the Press argued that the high court should broaden the media exemption "so as to include not only traditional institutional media corporations, but also organizations like Citizens United that are distributing pertinent political news to the public."

"Our basic point was: In today's world, technology is making it much more difficult to identify who is doing journalism, and who is not," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

But other journalists acknowledge that such trends raise tough questions. Fox News has faced criticism from White House officials who've challenged its credibility as a news organization and boycotts from some advertisers who refuse to buy ads on conservative commentator Glenn Beck's show. Beck told the New York Times last fall that he was planning voter registration drives and conventions to rally his base.

"The ranks of self-interested information providers are now growing rapidly, and news organizations must define their relationship to them," cautioned the annual news industry report put out by the Pew Research Center's Project for Excellence in Journalism. As newsrooms consolidate, the ranks of "non-journalistic players" such as companies, think tanks, activists, government agencies and partisans are growing, according to the center's State of the News Media 2010 report, released in March.

"There are varying degrees of transparency in these efforts about the financing and intentions," the report pointed out. "Some are quite clear. Others present themselves as purely journalistic and independent when in fact they are funded by political activists, yet only by digging and cross-referencing websites can the agenda and financing be divined."

The Citizens United advisory opinion will make tracing those funding sources harder than ever. Now it will be up to reporters -- the old-fashioned kind, who care more about fact-finding than ideology -- to figure out who's really a journalist, and who's a political player. They won't be getting any help from the FEC.

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