The same sloppy legislative writing that created so many unintended consequences in ObamaCare also plagues the DISCLOSE Act, the effort in Congress to tighten spending rules in the wake of the Citizens United decision — and that’s the generous take on the situation. Reason’s Bradley Smith and Jeff Patch warn that the perhaps-unintended consequences of legislative language will allow the FEC to regulate political speech online. The fact that media entities like the New York Times have specific exemptions built into the bill makes the intent, or lack thereof, rather murky:
The bill, however, would radically redefine how the FEC regulates political commentary. A section of the DISCLOSE Act would exempt traditional media outlets from coordination regulations, but the exemption does not include bloggers, only “a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication…”
In Citizens United, the Supreme Court explicitly rejected disparate treatment of media corporations and other corporations (including nonprofit groups) in campaign finance law. “Differential treatment of media corporations and other corporations cannot be squared with the First Amendment,” Supreme Court Justice Anthony Kennedy wrote for the majority.
No legitimate justification exists for excluding media corporations from regulations on political speech applicable to other corporations, unless the goal is to gain the support of editorial boards funded by the New York Times Co.
