No, The New York Times Is Not a “Super PAC”

On November 29, David Harsanyi, Senior Editor at The Federalist, published an article titled, “The New York Times Finally Admits It’s Just A Democrat Super PAC.” This claim was based on the fact that The New York Times tweeted in opposition to the Senate tax bill, encouraging readers to contact Senator Susan Collins (R-ME) to oppose the legislation. It should be noted that Mr. Harsanyi concludes his piece by stating, “this is worth remembering as the board [of The New York Times] turns into the equivalent of a super PAC,” contradicting the headline and conceding that The New York Times did not admit it is a Democratic Super PAC.

However, Mr. Harsanyi also writes that “when (he) was a member of an editorial board, (their) mission…was to offer rigorous, good-faith arguments for whatever point of view we were taking.” We share Mr. Harsanyi’s enthusiasm for rigorous, good-faith arguments, and in that spirit feel compelled to point out that The New York Times’ activities are not activities that a PAC would engage in. To that end, we have provided a brief description of the role of PACs and the distinction between different types of advocacy. A political action committee (PAC) is a type of tax-exempt organization created primarily to fund activities designed to influence the nomination or election of candidates for public office. The three most common types of political organizations are:

• Federal PACs: any political committee registered with the Federal Election Commission (FEC) that makes contributions to or expenditures on behalf of federal candidates or committees.
• State PACs: any political organizations registered with a state election authority to make contributions to or expenditures on behalf of state (and sometimes local) candidates or committees.
• 527 Organizations: a political organization that seeks to influence elections through activities that do not require registration with the FEC or the state election authority.

Mr. Harsanyi’s article posits that The New York Times is acting as a Super PAC. For context, a Federal PAC is defined as “any committee, club, association or other group (1) that makes more than $1,000 in political expenditures or receives more than $1,000 in contributions during a calendar year for the purpose of influencing federal elections and (2) whose major purpose is the nomination or election of federal candidates.” A Super PAC is a type of Federal PAC that may raise unlimited amounts of money and make unlimited expenditures supporting or opposing candidates, but is not permitted to contribute to or coordinate directly with parties or candidates. Thus, Federal PACs, including Super PACs, are created and run with the purpose of influencing elections. Many organizations that may influence elections, such as large corporations or labor unions, are nonetheless not considered PACs because they are not created in order to influence the elections. Put differently, because they were not created to influence elections and because their election-related activities are not their primary purpose, they are not considered PACs. It is also worth noting that the Senate tax bill is considered legislation, and is clearly not a “candidate.”

This leads to the distinction between two types of advocacy. In the 1976 Supreme Court case Buckley v. Valeo, the Supreme Court established two types of advocacy-related communications: advocacy involving political campaigns and advocacy around issues. Advocacy involving political campaigns –communications communications that advocate for the election or defeat of a candidate for federal office – are subject to federal campaign regulations. In contrast with this, advocacy around issues focuses on legislative proposals and governmental actions. Generally, this latter type of advocacy is considered lobbying, an activity that most individuals and organizations can engage in without restriction (restrictions exist for groups like 501(c)(3)s and PACs). Some lobbying activity, such as direct lobbying, may require disclosure.

While there is no universal definition for lobbying, a working definition is any communication intended to introduce, support, oppose, or otherwise influence legislation. The IRS does provide a more clear definition of lobbying that applies to private foundations and public charities that operate under the 501(h) election. Under this definition, lobbying is split up into direct lobbying and grassroots lobbying. Direct lobbying is a communication with a legislator that expresses a view on specific legislation. Grassroots lobbying is a communication directed to the general public that expresses a view on specific legislation and includes a call to action (encouraging them to contact their legislators).

While this definition is not directly applicable to lobbying done by for-profit organizations, it does provide a helpful framework to determine if communications look like lobbying.

The New York Times tweet referenced in Mr. Harsanyi’s article reads, “Contact @SenatorCollins, (202) 224-2523, particularly if you live in Maine, and ask her to oppose the Senate tax bill because it would repeal Obamacare’s individual mandate, driving up the cost of health insurance. #thetaxbillhurts.” This would be considered grassroots lobbying. As this is a tweet, it is a communication with the general public. It refers to a piece of specific legislation, the tax bill, and encourages readers to contact Senator Collins to share their opposition. Accordingly, given that this looks like grassroots lobbying and it does not advocate for or against Senator Collins in any way, this does not represent The New York Times stepping into the role of a Super PAC.

Further, if engaging in grassroots lobbying were enough to transform a news organization into a PAC, then it would certainly follow that any news outlet that expressly supports a candidate (of either party) for public office would more than qualify the outlet as a PAC. Of course, it has been customary for decades for many newspapers and media outlets to endorse candidates on their editorial pages. Neither this activity nor a tweet such as the one published by The New York Times has ever qualified a news outlet as a Super PAC, however, and Mr. Harsanyi’s misuse of the term in an overheated argument does little to clarify the confusing political times we live in.

While we disagree with Mr. Harsanyi’s characterization of lobbying activities as campaigning, we appreciate the opportunity to engage with both The Federalist and other organizations about the various types of tax-exempt organizations and their abilities.