May 26, 2020
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Maine ethics panel pushes to exempt candidate-owned news outlets from campaign finance rules

AUGUSTA, Maine — Maine’s election watchdog agency is trying to clarify that news organizations owned by political candidates and their immediate family members are not subject to the state campaign finance and disclosure requirements that govern candidates, political action committees and other organizations working to influence elections.

A rule recently proposed by Maine Ethics Commission staff would clarify that the cost of producing news at a candidate-owned news organization doesn’t qualify as a campaign expenditure as long as the outlet is considered a news organization under Maine election law and the outlet offers “a pattern of campaign-related news coverage that provides reasonably equal coverage to all opposing candidates.”

The rule proposal comes two months after Donald Sussman, husband of U.S. Rep. Chellie Pingree, who represents Maine’s 1st Congressional District, purchased a majority stake in MaineToday Media, publisher of the Portland Press Herald, Kennebec Journal in Augusta and Waterville Morning Sentinel.

Maine’s election rules long have carried a provision that exempts news organizations from having to file campaign expenditure reports for news and editorial coverage of political candidates, said Jonathan Wayne, executive director of the Maine Ethics Commission. But that exemption hasn’t extended to news organizations owned by candidates and their immediate family members.

“We think it would be helpful to provide some guidance on that,” Wayne said. “I acknowledge this could have application to MaineToday Media, but the commission staff believe that it is an issue that should be clarified for other media as well.”

At the moment, the rule proposal wouldn’t affect MaineToday Media, as Pingree is a candidate for federal, not state, office. MaineToday Media’s interim CEO, Pat Sweeney, said in a statement that the company is reviewing the proposal.

The ethics commission is accepting public comments on the rule proposal through July 6, and commissioners expect to take up the proposal at their July 25 meeting.

The addition to the press exemption is modeled after Federal Election Commission rules that say the cost of producing a “bona fide news account” at an outlet owned by a candidate does not qualify as a campaign expenditure.

In Maine elections, Wayne said, that exemption means news outlets:

• Don’t have to register with the ethics commission as political action committees and file campaign finance reports.

• Don’t have to file expenditure reports if they spend $100 or more independent of any candidate to influence an election.

• Don’t have to carry disclaimers that indicate whether a candidate has authorized the publication and who has funded it.

“The effect of the exemption is to take the publication of a news story or editorial out of campaign finance regulation,” Wayne said.

Suzanne Goucher, president and CEO of the Maine Association of Broadcasters, said the proposed addition to the press exemption rarely would apply to Maine broadcasters. They don’t often editorialize and their owners seldom run for political office, she said.

“It does seem to me like the commission is really splitting hairs,” Goucher said.

The Maine Press Association, the primary trade group for Maine’s newspapers, hasn’t yet discussed the proposed addition to the press exemption, said Mike Dowd, Maine Press Association president and editor-in-chief of the Bangor Daily News. He said the group planned to submit public comments to the ethics commission.

This latest rule proposal follows two earlier rounds of rule proposals that sought to more clearly define a news organization for purposes of campaign finance rules. Those pending proposals would add Internet-based publishers to the existing press exemption.

“This is something the commission staff initiated in order to provide clearer guidance to the public on the press exception,” Wayne said. “We wanted to clarify how the commission would interpret being a periodic publisher of news.”

The definition of a news organization under Maine election rules is the subject of a pending lawsuit in U.S. District Court in which the American Civil Liberties Union of Maine is challenging the Maine Ethics Commission on behalf of the creator of the Cutler Files, a political website that took aim at independent candidate Eliot Cutler during the 2010 gubernatorial election.

ACLU of Maine has argued that the website was a political blog whose contents would have been exempt from campaign finance rules had they been disseminated through a newspaper, television station or other news outlet.

The civil liberties union’s interest in the ethics commission rule has to do with “the rights of bloggers or electronic news producers to be regarded as the press,” said Zachary Heiden, ACLU of Maine’s legal director.

“Now, this rule is also trying to get at the way far other end of the spectrum,” he said. “It’s an interesting dichotomy. They’re trying to craft a rule that’s going to look at both ends of the spectrum of financial means.”

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