DISTINGUISHING JOURNALISM FROM POLITICAL INFLUENCE OPERATIONS Rethinking the FEC’s Approach to the Press Exemption

One defining characteristic of contemporary news and information ecosystems is the increasingly blurred line separating legitimate journalism from partisan political influence operations. While the First Amendment limits government interventions on this front, there is one seldom-discussed federal mechanism for bringing greater clarity to the question of whether an entity is operating as a news organization or a political influence operation. The Federal Election Commission (FEC), which regulates House, Senate, and presidential political campaigns, possesses the authority to determine whether an organization represents a legitimate press entity and its activities represent legitimate press functions, or whether it runs political influence operations in the guise of journalism. This “press exemption” represents an important and underutilized mechanism for bringing greater clarity and transparency to contemporary news and information ecosystems. This article utilizes a critical analysis of key FEC press exemption decisions to illustrate how the FEC brings inadequate analytical rigor to its responsibility to administer the press exemption. It describes enhanced analytical approaches that the FEC can employ when making press exemption determinations. Finally, it offers a roadmap for how the FEC can use its authority to address one of the key challenges confronting our news and information ecosystem and undermining an informed electorate.

Duke Scholars

Author Philip Michael Napoli Sanford School of Public Policy