FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463 

BEFORE THE FEDERAL ELECTION COMMISSION

 ) 

In the Matter of ) 

 ) MURs 7668, 7669, & 7685 

Bloomberg News, et al. ) 

 ) 

SUPPLEMENTAL STATEMENT OF REASONS OF 

VICE CHAIRMAN SEAN J. COOKSEY AND COMMISSIONERS ALLEN J. 

DICKERSON AND JAMES E. “TREY” TRAINOR, III

We voted to find no reason to believe that Bloomberg News made—and Mike Bloomberg’s 

2020 presidential campaign accepted—unlawful in-kind contributions in the form of Bloomberg 

News opinion articles for the reasons adopted by the Commission.

1 We issue this supplemental 

statement, however, to raise broader concerns with the Commission’s regulations of media 

activities under its interpretation of the press exemption in the Federal Election Campaign Act of 

1971, as amended (“FECA” or the “Act”). Those regulations, we believe, are at odds with the First 

Amendment’s heightened protection of the press and political speech. 

Congress was adamant when it amended FECA in 1974 that its intent was not “to limit or 

burden in any way the First Amendment freedoms of the press and of association.”2 Accordingly, 

since the Act’s 1974 amendments, FECA has exempted from the definition of “expenditure” “any 

news story, commentary, or editorial distributed through the facilities of any broadcasting station, 

newspaper, magazine, or other periodical publication, unless such facilities are owned or 

controlled by any political party, political committee, or candidate.”3 This statutory carveout is

commonly known as the press or media exemption, and it serves to protect “the unfettered right of 

the newspapers, TV networks, and other media to cover and comment on political campaigns.”4

1

 See Factual & Legal Analysis (Feb. 6, 2023), MURs 7668, 7669, & 7685 (Bloomberg News, et al.); 

Certification (Jan. 26, 2023), MURs 7668, 7669, & 7685 (Bloomberg News, et al.). 

2

 H.R. Rep. No. 93-1239, at 4 (1974). 

3

 52 U.S.C. § 30101(9)(B)(i); see also 52 U.S.C. § 30104(f)(3)(B)(i) (providing equivalent exemption under

“electioneering communication” definition for “a communication appearing in a news story, commentary, or editorial 

distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any 

political party, political committee, or candidate”).

4

 H.R. Rep. No. 93-1239, at 4 (1974). 

MUR766800108
2 

Courts have further interpreted the press exemption by formulating a two-step analysis that, if 

satisfied, bars any “investigation of press activities which fall within the exemption.”5

Notwithstanding these strong pronouncements in support of press freedom found in the 

congressional record and in judicial precedent, the Act’s text and legislative history offer little 

guidance on the intent behind the exemption’s wholesale exclusion of press entities owned or 

controlled by a political party, committee, or candidate.6 Commission regulations corresponding 

to the Act’s press exemption provide that “[a]ny cost incurred in covering or carrying a news story, 

commentary, or editorial by” a press entity is not a contribution or expenditure “unless the facility 

is owned or controlled by any political party, political committee, or candidate, in which case the 

cost for a news story” that is both (i) “a bona fide news account communicated in a publication of 

general circulation or on a licensed broadcasting facility,” and (ii) “part of a general pattern of 

campaign-related news accounts that give reasonably equal coverage to all opposing candidates in 

the circulation or listening area,” is neither a contribution nor an expenditure.7 But, in our view,

these protections do not go far enough. Most fundamentally, the First Amendment’s Press Clause 

is not merely a shield for professional “press entities” engaged in publishing “bona fide news 

accounts” as part of their “legitimate press function,” whatever that may be.8 

More narrowly, while the limiting interpretation in the Commission’s regulations may 

ameliorate some of the constitutional issues that stem from a literal application of the Act’s total

exclusion of candidate-owned media from the press exemption, the difference between the 

5

 Reader’s Digest Ass’n v. FEC, 509 F. Supp. 1210, 1214–15 (S.D.N.Y. 1981); see also FEC v. Phillips Publ’g, 

Inc., 517 F. Supp. 1308, 1312–13 (D.D.C. 1981). This two-step analysis, which the Commission adopted after the 

Reader’s Digest and Phillips decisions, first considers whether the organization in question is a “press entity,” by 

assessing whether it is “in the business of producing on a regular basis a program that disseminates news stories, 

commentary, and/or editorials.” Advisory Op. 2019-05 (System73) at 4. The second part of the analysis dually 

examines: (1) whether the entity is owned or controlled by a political party, political committee, or candidate; and (2) 

whether the relevant activity is a “legitimate press function.” Id. at 5.

6

 See Statement of Reasons for Voting to Withdraw the Commission’s Complaint in FEC v. Forbes, et al., 

Vice Chairman Wold and Commissioners Elliot, Mason, and Sandstrom, at 8 n.5 (May 27, 1999) (“Forbes SOR”) (“It 

may be that the statutory exclusion of publications owned by political parties, committees, or candidates was intended 

to exclude only those publications whose essential purpose is political, and which could readily be used to circumvent 

the purposes of the Act if the full, unfettered freedom of the press to discuss candidates were extended to them.”).

7

 11 C.F.R. §§ 100.73, 100.132 (emphasis added). In its limited body of precedent involving commentary or 

editorials by candidate-owned press entities, the Commission has examined whether the cost of publishing them 

amounts to an in-kind contribution to the candidate owner. Since the enactment of the Bipartisan Campaign Reform 

Act of 2002, the Commission’s analysis in these matters has specifically focused on whether the editorials or 

commentaries at issue satisfy the payment, conduct, and content standards for “coordinated communications” under 

11 C.F.R. § 109.21, and therefore qualify as impermissible in-kind contributions. See, e.g., Advisory Op. 2005-07 

(Mayberry) at 2–5; see also First General Counsel’s Report at 20–24 (Sept. 21, 2022), MURs 7668, 7669, & 7685

(Bloomberg News, et al.). 

8

 The Supreme Court has never embraced such a crabbed reading of that clause, which lacks historical 

pedigree. Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (“The press in its historic connotation comprehends 

every sort of publication which affords a vehicle of information and opinion.”); Pennekamp v. Florida, 328 U.S. 

331, 364 (1946) (Frankfurter, J., concurring) (“[T]he purpose of the Constitution was not to erect the press into a 

privileged institution but to protect all persons in their right to print what they will as well as to utter it. . . . [I]n the 

United States, it is no greater than the liberty of every citizen of the Republic.”); Near v. Minnesota, 283 U.S. 697, 

707 (1931) (defining “the press” as an “essential personal liberty of the citizen”).

MUR766800109
3 

exemption as construed in the regulations and in the Act is one only of degree. The regulations do

not resolve the fundamental First Amendment problems posed by excluding some or all candidateowned media from the full protection of the press exemption.9

 Although the regulations broaden 

the exemption to include a “bona fide news account” by candidate-owned press entities, they do 

not provide an analogous safe harbor for commentary or editorials by those entities. 

It is black letter law that the First Amendment’s Press Clause protects publication of news

stories as well as commentary and editorials.

10 And, within its campaign-finance and First 

Amendment jurisprudence, the Supreme Court has maintained that the government “is 

constitutionally disqualified from dictating the subjects about which persons may speak and the 

speakers who may address a public issue.”11 Yet, in its regulations for the press exemption, the 

Commission has done just that. By denying the press exemption’s safeguards to commentary and 

editorials from press organizations that are owned or controlled by candidates, the regulations 

remain in serious tension with judicial precedent broadly construing the First Amendment’s 

assurances of a free press and “uninhibited, robust, and wide-open” political debate.12 

The regulation’s additional requirement that, to qualify for the press exemption, “bona fide 

news accounts” distributed by candidate-owned media must be “part of a general pattern of 

campaign-related news accounts that give reasonably equal coverage to all opposing candidates” 

similarly presents serious constitutional questions.

13 The Commission appoints itself the sole 

arbiter of what is “reasonably equal [news] coverage” and therefore eligible for publication under 

its vague regulatory standard. In this role, the Commission has tasked itself with scrutinizing “the 

exercise of editorial control and judgment” by candidate-owned press groups, even though “[i]t

has yet to be demonstrated how governmental regulation of this crucial process can be exercised 

consistent with First Amendment guarantees of a free press as they have evolved to this time.”14

9

 Indeed, our predecessors have signaled their own discomfort with the dubious constitutionality of this 

regulatory scheme. In a prior enforcement case from 1996, the Commission determined that the press exemption was 

inapplicable to opinion columns written by then presidential candidate Steve Forbes and published in Forbes

magazine, a publication owned and controlled by Mr. Forbes. See Factual & Legal Analysis (Dec. 11, 1996), MUR 

4305 (Forbes for President, et al.). The Commission found probable cause to believe that publication of the columns 

was an unlawful in-kind corporate contribution to Steve Forbes’s campaign and, after failing to reach a conciliation 

agreement, proceeded to file suit against Mr. Forbes. However, a majority of Commissioners subsequently voted to 

withdraw the lawsuit because there was “a substantial possibility that the defendants would eventually prevail” in 

court “both because of doubtful application of the [Act’s] statutory language and because of overriding constitutional 

concerns.” Forbes SOR at 11. 

10 See Mills v. Alabama, 384 U.S. 214, 220 (1966) (holding that “no test of reasonableness can save a [] law 

from invalidation as a violation of the First Amendment when that law makes it a crime for a newspaper editor to do 

no more than urge people to vote one way or another in a publicly held election.”); Lovell, 303 U.S. at 452. 

11 First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784–85 (1978); see also Citizens United v. FEC, 558 

U.S. 310, 341 (2010) (“We find no basis for the proposition that, in the context of political speech, the Government 

may impose restrictions on certain disfavored speakers.”); Buckley v. Valeo, 424 U.S. 1, 48–49 (1976) (per curiam) 

(“[T]he concept that government may restrict the speech of some elements of our society in order to enhance the 

relative voice of others is wholly foreign to the First Amendment”). 

12 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). 

13 See 11 C.F.R. §§ 100.73, 100.132. 

14 Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974). 

MUR766800110
4 

The lack of definitional clarity for key terms in the relevant regulations, such as “bona fide news 

account” and “reasonably equal coverage,” which have no corollary in the Act itself, and the 

growing difficulty in distinguishing news accounts from editorial commentary in today’s media 

landscape further compound the constitutional and prudential concerns surrounding the 

Commission’s construction of the press exemption.15 

The Commission was able to prudently avoid the constitutional questions in this matter. 

We found no reason to believe the Respondents made or accepted unlawful in-kind contributions

through Bloomberg News’s publication of election-related editorials because of the proactive

measures undertaken by Bloomberg News to ensure its editorial and journalistic independence 

from Mike Bloomberg’s presidential campaign. Among other things, Bloomberg News disbanded

its editorial board, divested Mr. Bloomberg of personal control over its operations, and ended the 

publication of unsigned editorial articles. These actions sufficiently preserved the press 

exemption’s applicability in this case.

16 As a result, we did not need to address the press 

exemption’s applicability to commentary and editorials in candidate-owned publications more 

broadly or the difficult First Amendment questions raised by that analysis. 

In future enforcement matters involving candidate-owned media, we will continue to 

conduct a fact-based analysis that limits our jurisdictional inquiry. We will look to, among other 

factors, whether a candidate-owned media entity has affirmatively acted to ensure it does not 

become a conduit for influencing federal elections on behalf of its owner. And we will be wary of 

any efforts to premise legal analysis, as our Office of General Counsel proposed here, upon a lineby-line reading of published articles to determine whether they are unlawful communications.17

A time may come when the Commission must face the dissonance between the First 

Amendment and the press exemption head on. As one Commissioner has written previously, the 

Commission’s longstanding test for applying the press exemption, particularly its requirement that 

only “press entities” qualify for the exemption, is both constitutionally suspect and increasingly 

out of step with how Americans receive and engage with political news today.18 Once again, we 

are compelled to express our concerns with how the Commission has sought to construe the Act’s

15 Other Commissioners have also questioned the press exemption’s compatibility with the First Amendment, 

both in general and in relation to its treatment of candidate-owned media. See, e.g., Forbes SOR at 9 (noting that a 

“publisher does not lose the protections of the First Amendment for freedom of the press just because its owner 

becomes a candidate.”); Additional Statement of Reasons of Commissioner Mason at 6 (Feb. 14, 2000), MUR 4689 

(Robert K. Dornan, et al.) (“It is difficult to imagine an assertion more contrary to the First Amendment than the claim 

that the FEC, a federal agency, has the authority to control the news media’s choice of formats, hosts, commentators 

and editorial policies in addressing public policy issues.”). 

16 See Certification (Jan. 26, 2023), MURs 7668, 7669, & 7685 (Bloomberg News, et al.); Factual & Legal 

Analysis at 13–14 (Feb. 6, 2023), MURs 7668, 7669, & 7685 (Bloomberg News, et al.). 

17 First General Counsel’s Report at 26–30 (Sept. 21, 2022), MURs 7668, 7669, & 7685 (Bloomberg News, et 

al.). While this approach was ultimately rejected by the Commission, it is precisely the type of invasive governmental 

review openly courted by the current regulation. 

18 See Statement of Reasons of Commissioner Sean J. Cooksey at 4 (Apr. 22, 2022), MUR 7789 (Courier 

Newsroom, et al.) (“[I]n addition to its constitutional problems, the ‘press entity’ standard is impractical and difficult 

to apply fairly and consistently. Even if it were conceivable at one time to reasonably distinguish which entities are 

‘press’ and which are not, that taxonomy is surely unworkable today.”). 

MUR766800111
5 

press exemption in a manner that is at odds with the First Amendment’s core guarantees. It has 

become apparent that the Commission needs to reevaluate and reform its regulation of press 

activities to better reflect constitutional precedent and the evolving modes of political speech and 

media communications in this century. 

_________________________________ March 7, 2023 

Sean J. Cooksey Date

Vice Chairman

 

__________________________________ March 7, 2023 

Allen J. Dickerson Date

Commissioner

_________________________________ March 7, 2023 

James E. “Trey” Trainor, III Date

Commissioner

MUR766800112