MEMOWNDL 

TO: 

FROM: 

DATE: 

SU 83 JECT: 

Attach 

signed by Vi( 

Scott E, mor 

Office on We 

ec: Vincent J 

. Press Of 

Public In 

FEDERAL ELECTIQN COMMISSION 

WASHINGTON. D.C. 20453 

The Commissioners 

Staff Director 

General Counsel 

MI. DowelLisa Fa. Da 

Acting Commission Secr 

February 24,2000 

Statement of Reasons for MUR 4689 

d is 8 copy of the Statement of Reasons for MUR 4689 

? Chairman Danny bee McDonald and Commissioner 

as. This was received in the Commission Secretary's 

nesdav. February 23.2000 at 5:25 P.m. 

Convery, Jr. 

armation 

ce 

Public Rkcorcls 

I Attachment ~ 

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FE~ERAL ELECTION COMMISSION 

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WASHINGTON. D.C. 20463 

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In the Matter of I 1 

I 3 

Holnorable Robert IK. Dorlman 1 

Dornrn for Congreis and HonorabIe ) 

1 

Saiem Radio Netwo~ks 1 

Premiere Radio Networks ) 

Robert K Doruaq, as treasurer 

MUR 4589 

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STATEMENT OF REASONS 

In MWI. 4689, Commissioners Sandstrom Elliott, Mason and Wold found no reason to 

believe that Robert Dornan and his campaign committee, Dornan for Congress, violated “any 

provision” of the Feperal Election Campaign Act (“FECA” or “the Act”). Without any 

questioning of Mr. Donan or his campaig committee, or, any of the other respondents in this 

matter, our four colleagues summarily rejected allegations that as a federal candidate, Mr. Dornan 

repeatedly and impermissibly accepted free air time 

1998 general election opponent, Loretta Sanchez. During these radio broadcasts, Mr. Doman 

accused Ms. Sanchez of, among other things, breaking campaign promises; distributing campaign 

material which contained “deliberate, 1yng attacks;” betraying her Christian faith; and generally 

setting a bad example for American youth. 

a radio talk show host to attack his likely 

I 

We do not think this matter should have been SQ quickly and easily dismissed. Based on 

Commission preceyct and the need to resolve the many unanswered questions presented here, we 

believe the Commission should have pursued this matter and at least conducted an investigation 

ofthe allegation. 4ccordingly, we agrced with the legal analysis and recommendation of the 

Office of General Counsel to find reason to believe that Mr. Roman and the Dornan for Congress 

Committee may hah violated the Act by accepting prohibited corporate contributions, and, to 

open an investigatibn into the matter. 

I 
In November, 1996, Robert Dornan lost a narrow race to Loretta Sanchez for election to 

the United States House of Representatives from California’s 461h Congressional District. Several 

months iater, in Febrbary, 1997, Mr. Doman announced to a local newspaper that he would run 

again for the House in 1998. The Orange County Register, February 13, 1997 (“Doman to run for 

House again”). At tkis time, Mr. Doman also was engaging in extensive fundraising for his 

candidacy. BetweenlJanuary 1, 1997 and June 30, 1997, Mr. Dornan’s campaign committee 

received over 5630,dOO in receipts. On October 8, 1997, Mr. Doman filed a Statement of 

Candidacy with the Yederal Election Commission as a candidate for the Republican nomination 

for the US. Congress in California’s 461h Congressional District in 1998. 

During this she time period, Mr. Dornan, also appeared as a “guest host” on several radio 

talk shows. These included the Oliver North Show, March 10-14, 1997; the Michael Reagan 

Show, March 31 - Abril4, 1997; and the Alan Keyes Show, around October 15, 1997. It appears 

Mr. Doman hosted approximately 55 hours of radio time for these three shows. From the limited 

record available, it appears most of the air time was spent either promoting himself or attacking Ms. Sanchez. I 

The Federal )?iection Campaign Act prohibits “any corporation whatever” from making 

any contribution or expenditure from corporate treasury funds in connection with a federal 

election and further brohibits any candidate or committee from knowingly accepting any such 

contribution. 2 U.S/C. $441b(b). The Act defines a “contribution or expenditure” to include “any 

direct or indirect pafient, distribution, loan, advance, deposit, or gift of money, or any services. 

or atryfhitig of value . . . to any candidate or campaign committee in connection with” any federal 

elect.ion. 2 U.S.C. §441b(b)(2) (emphasis added). The Commission’s regulations define 

“anything of value”/to include “all in-kind contributions” and further explain that “the provision 

of any goods or services without charge . . . is a contribution.” 11 C.F.R. §100.7(a)(1)(iii)(3)(A). 

The Act, hohever, specifically excludes certain press activities from the definition of 

contribution or expenditure. Qualification for the so-called “’press exemption” is reserved for: 

any hews story. commentary, or editorial distributed through the 

facilities of any broadcasting station, newspaper, magazine, or 

othdr periodical pnblication, unless such facilities are owned or 

conirolled by any political party, political committee, or czndidate. 

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2 U.S.C. $431(9)(B)(i). 

On November 4, 1997, the California Democratic Party filed a complaint with the 

Commission alleging that Mr. Doman “has repeatedly used his position as a guest host on several 

national radio talk !shows to raise funds and to attack Congresswoman Loretta Sanchez.” 

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Complaint at 1. The complaint charged that by using he free &r time to benefit his candidacy, 

Mr. Doman accepted “illegal corporate contributions.” Id. The complaint explained: 

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The value of such time is enormous. The puxhase of air time Is 

one of the major expenses in any campaign. Here, Mr. Doman gets 

unresthed air time to discuss his candidacy and to attack his 

oppodp. This appears to be a completely partisan effort, with no 

attempt on the part afthe stations to make a balanced presentation 

of thelissues by providing a similar opportunity for 

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1 I I Congresswoman Sanchez. 

, Complaint at 3. 

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After a compkehensive review of the materials submitted by respondents (neither 

Mr. Boman nor his qampaign committee filed a response), the Office of General Counsel 

prepared a report for! Commjssion consideration containing a factual and legal analysis of the 

allegations presented in the complaint. Based on the Act and Commission precedent, the General 

Counsel’s Report redommended that the Commission find reason to believe that the Salem Radio 

Network (the entity responsible for the Alan Keyes and Olive: North shows) and the Premiere 

Radio Networks (the Michael Reagan show) and their respective principal officers violated 

2 U.S.C. 4441b by essentially providing free advertising time to Mr. Dornan and his campaign 

committee. The Offjce of General Counsel also recommended that the Commission find reason 

to believe that Mr. Doman and his campaign committee may have violated 2 U.S.C. 8441b by 

accepting these proftibited corporate contributions. Finally, the General Counsel’s Office 

recommended that the Salem Radio Networks (“SW) and Premiere Radio Networks 

(“Premiere”) may have violated section 441d(a) by failing to issue disclaimers during the 

broadcasts of the shows that expressly advocated the election or defeat of clearly identified 

candidates.’ I 

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k motion to:reject the Office of General Counsel’s recommendations passed by a vole of 

I 4-2 with Commissioners Sandstrom Elliott, Mason and Wold voting to support the motion and 

Commissioners Thomas and McDonald voting against. A motion then was made to: I 

I find^ no reason to believe that Salem Radio Networks and its 

officers; Premiere Radio Networks and its officers; ABC Radio 

Nedorks, Inc.; BBC, Inc.; Doman for Congress ad Honorable 

Robb K. Doman, as treasurer; and Honorable Robert K. Dornan, 

as candidate; vkhled any provision of the Federal Election 

Campaign Act as a result of the activities described in the General 

Counsel’s Report dated August 4, 1999. I 

2 U.S.C. 8441d. ThJsection 4416 disclaimer provision requires, inzerulia, the name of the person who paid for the 

expressly advocating qe election or defeat of a clearly identified candidate.” 

,, 

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i communication and a notice as to whether the communication was authorized by a candidate on “communications . ~. 

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This motion also c&ed by a vote of 4-2 with Commissioners Sandstrom, Elliott, Macon, and 

Wold voting affirmatively, and Commissioners Thomas and McDonald dissenting. 

We believe $e actions of Mr. Dornan, Doman for Congress, Salem Radio networks and 

Premiere Radio Networks might well have constituted violations of the Federal Election 

Campaign Act. Theke is little doubt that Mr. Doman received “something of value” when SRN 

and Premiere gave him 55 hours of free nationai radio air time. Although the record in this 

matter is limited, it appears Mr. Dornan repeatedly used the free air time either to promote 

himself or attack his opponent in the 19% election. For example, the Los Angeles Times 

described Mr. Domsl’s hosting the Oliver North show &he week of March 10, 1997, this way: 

“Three hours a day, over five days last week, Doman substituted for North on the nationally 

syndicated radio pr4gram. On day one, Doman spent most ofrhe time discussing his favorite 

subject: Robert Dornan.” Los Angeles Times, March 17, 1997. 

Similarly, two weeks later on the Michael Reagan show, Mr. Dornan again sought to use 

the free time to his political advantage - this time by attacking Ms. Sanchez. Although only a 

few of the Reagan show transcripts were available, they clearly reveal Mr. Dornan charging, 

among other things,’ that: 

* $1~. Sanchez lied ir, her campaign “attacks” on Mr. Doman (“of 

23 mail pieces Sanchez put out, 21 were negative, such as the 

deliberate lying attack which said . . . .”). 

8 $fs. Sanchez consistently had broken her campaign promised 

PTem limits -- she campaigned on it the whole time. She said I 

had been there too iong. She ’broke her promise and vated against 

(em limits.”). 

Vs. Sanchez voted for “infanticide” (“Abortion-Betraying her 

Christian faith, she voted against banning patial birth infanticide. 

She voted big time for infanticide...”). 

Ms. Sanchez sets a bad example for America’s youth (“What kind 

of example is this for young people ... what is it when our opponents 

tell the youth of our nation, ‘tear down your opponent’s signs...”’). ~ 

.S 

General Counsel’9~Distribution of Transcripts at 2,5, and 8 (June 25,1999). 

What else did Mr. Doman say during these broadcasts? Did he ask listencrs to vote for 

him? Or vote agah Congresswoman Sanchez? Did he solicit contributions over the air? We 

simply do not hoiv. The excerpts available come primarily from a small number of transcripts 

placed on the Inte+et. The other infomation comes from newspaper accounts. lfthis very srnall 

sampling is any indication, though, it appears Mr. Dornan spent a considerable amount oftime 

attacking his like14 general election opponent. Recause our four colleagues blocked any 

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investigation into this matter, however, we do not know the full extent of what was said by 

Mr. Doman during his free air time. 

Of course, if h. Dornan was a private citizen at the time of these broadcasts, none of this 

would matter. At the time of these activities, however, it appears Mr. Doman was a candidate for 

election to the House fpom Ms. Sanchez’s Jfjih ConpssionaI District in California. In an 

interview with a loch newspaper the month before he began hosting the Nerth and Reagan radio 

shows, Mr. Doman +tuaiIy announced ne was “rumiing again” and “p~anning a new campaign.” 

Under the headline, “Doman to run for House again,” the February 13, 1947 Orange Courzf~. 

Regisrer reported: 

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Former Rep. Roberr K. Dornan says he is running again. 

The kepublican from Garden Grove said Wednesday that even as 

his lawyers and supporters try to prove that Democrat Rep. Loretta 

Sanchez “stole” the 1996 election from him, ke’splunizlng a new 

cainiaign . 

“I stdrted making calls this morning to ser up the new campaign 

&?and and [lie new slrucwe,” he said. A month ago, Doman 

indicated he was CoAtent to leave Congress and resume a takradio 

career, but news that Sanchez had scored a seat on tile National 

Security Committee was t~o much for him. 

Td voters replaced me, the Chairman of military personnel 

(subcommittee) with an airhead, and she got on National Security,” 

Doman fumed. “I’ni going back ru Congress. 1 feel it in my 

bones.” 

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Ror~ran said he will begin jcnd-raising from scratch because he 

expects the $130,000 left in his campaign fund io be eaten up by 

lawyers and investigators working overtime to investigate his 

charges of voter irregularities. 

The Orange County Regisler, February 13, 1997; see also Roll Call, February 18, 1997 (“Last 

week he [Dornan] /old the Orange County Register that he’s definitely running for the House 

again in 1998.”). i 

At the same time, Mr. Doman was also busy raising campaign funds. The Doman 

Committee’s 19971 midyear campaign report filed with the Commission discloses $632,445 in 

receipts and $628,593 in total disbursements. None of these contributions were designated for 

any purpose other (than as contributions for election expenses. If the Dornan Committee intended 

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that receipts were to be used for some non-election purpose such as an election recount, it should 

have either: (1) established a separate account to receive monies designated within the category of 

“other receipts” or “other disbursement;” .see 2 U.S.C. §$434(b)(2)(5) and (4)(G) and also 11 

C.F.R. §§104.3(a)(3)(x) and (b)(2)(vi); or (2) esrabiished a separate organizational entity for the 

purposes of funding an election recount effort. See, e.g., Advisory Opinion 1978-92 [Transfer 

Binder] Fed. Elec. Camp. Fin. Guide (CCH) 15374. The Doman Committee did neither. 

The public declaration to the Orurigc Corrnt~ Register combined with the large amount of 

campaign funds raised during the first half of 1997 provides a strong basis fsx concluding 

Mr. Dornan was a candidate at the time of even the first two broadcasts. ‘The Act defines 

“candidate” as “an individual who seeks nomination for election, or e!ection, to Federal office.” 

2 U.S.C. $431(2). “[Aln individual shall be deemed to seek nomination for election, or 

election ... if such individual has received contributions segregating in excess of $5,@O@ or has 

made expenditures aggregating in excess of $5,@00.” 2 U.S.C §431(2)(A). It certainly appears 

the statutory definition for candidate was met here.2 At a minirnum, there is no doubt that 

Mr. Doman was a candidate as of October 8, 1997, when he filed a Statement of Candidacy with 

the Commission. Thus, at the very least he was a candidate at the time of the Alan Keyes Show 

which he guest hosted in mid-October, 1997.3 

Our conclusion at the reason to believe stage that Mr. Doman and his campaign 

committee received a prohibited corporate contribution when he hosted approximately 55 hours 

of radio broadcasts is reinforced by Commission precedent exactly on point. In Advisory 

Opinion 1992-37, Randall Terry asked whether he could continue to host a daily radio talk show 

while he was running as a candidate for the United States House of Representatives from the 23‘d 

District of New York. This talk show dealt “with all major contemporary issues, both domestic 

and foreign,” and had a “call-in’’ format “in which the news of the day was discussed.” Zd. 

’ Even if Mr. Dornan was not a “candidate” as defined by the Act, he certainly was subject to the Commission’s 

“testing he waters“ regulation. Undei this regulation, an individual may explore the feasibility of becoming a 

candidate without having to register and report as a candidate even though the individual may have raised or spent 

more than S5.000. 1 I C.F.R. gl00.7(b)( 1). This provision is inapplicable where an individual makes statements that 

refer to himelf as a candidate or when an individual begins to amass campaign funds. 11 C.F.R. 100.7(b)(1). 

Significantly. an individual who is testing the waters may not accept funds from prohibited sources. Id. Accordingly, 

whether a candidate or simply “testing the waters.” Mr. Darnan was prohibited from accepting a prohibited corporate 

contriburion. See 2 U.S.C. $44 I b. ’ The Act further states: “Each candidJte for Federal offce. . shall designate in writing a political commitfee. . .to 

serve as the principal campaign committee of such candidate. Such designation shall be made no later than 15 days 

after becoming a candidate.” 2 U.S.C. $432(e); I1 C.F.R. $101 .l(a). Thr candidate shall make such a designation by 

timely filing a Statement of Candidacy or a letter containing specified information with the Commission. 1 1 C.F.R. 

Given Mr. Doman’s extensive fundraising and his public statement to the Orange Counry Regisrer, there may also 

$8 io I. I(+ 1os.i. 

have been reason to believe that he failed to file a Statement of Candidacy and designate a political committee in a 

timely manner. Despite this compelling evidence and its discussion at the Commission table, Commissioners 

Sandstrons Elliott. Mason, and Wold broadly found “no reason to believe” that Mr. Dornan and his campaign 

COIIUnittee “violated any provision of the Federal Election Campaign Act as a result of the activities described in the 

Gencral Counsel’s report dated August 4, 1999.” MUR 4689, Certification. By finding no reason to believe here, OUT 

colleagues have muddled the candidate registration provisions. 

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The Commission concluded Mr. Terry could continue to work. as a radio talk show host, 

but conditioned its approval on a number of factors, including an assurance the candidate would 

refrain from attacks on his opponents. More specifically, the Cornmission stated: 

The Commission notes your statements that your show does not air 

in the Zrd District. The Commission also notes your 

repiesentations that you do 110: itlierid zo use your show to pronrofe 

your carididmy or raise funds for your candidacy, and that no ads 

raising funds or promoting your candidacy would be run during the 

show. The Conamission interprets your representation to include 8 

comglitment to refrain from at:acks 011 your opporrents, or from 

soliciting funds or airing ads for those purposes. Based zrpori these 

condieions, the Comniissiotl concludes Ilia: you maj~ continue to 

host your show duritig your candidacy withoirt a prohibited 

contribution occurring. 

Id. (emphasis added). 

Under Advisory Opinion 3 992-17, the Doman radio talk show appearances clearly were 

inapproprhte.3 Not only did the talk show run in the district in which Mr. Doman was running 

for electior;, but Mr. Doman also used the talk show to promote his candidacy and engage in 

attacks on his general election opponent.’ We believe if Mr. Doman wanted to use the airwaves 

to p:ORlOlC his candidacy and attack his cpponcnt, his campaign should have paid for that air time 

as would be required of any other The Doman campaign’s failure to do SO resulted in 

the making and acceptance of prohibited corporate contributions. 

’fie COURS have recognized the importance of Comission Advisory Opinion precedent. In a Ninth Circuit decision 

involving the FEC’s application of zhe iaw to a post-election, !oan guarantee, &e coun noted 

Tne FEC has regarded loan guarantees a.nd post election donations as contributions in its 

adviso~y upiniuns. The appellees cannot choore to ignore that isferpretation of the 

reguiarory scheme and urge this Court to substitute its oan consuuctian for that ofthe 

FEC. 

FEC x Ted Haley Congredunal Comnirree. 852 F.2.d 1 1 I I. 11 15 (9” Cir. 198s) (first emphasis added). The D.C. 

Circuit concluded that the Comission’s advisory opinion process is a “prompt means of resolving doubts with 

respect to !he statute’s reach.” Marlin Tractor Ca. v. FEC, 627 F.2d 375,384 (D.C,Cir.), cert. denied, 449 US. 954 

(1980). It is clear that the ”interpretation of FECA by the FEC through its regulation and advisory opinions is 

entitled to due deference and is to be accepted by the court unless demomaably irrational 01: clcarly contrary to the 

plain meaning ofthe statute.” 857. F.2d. at 1 I 15 (enlphasis added), On- would expect that ifCodssion advkory 

opinions are lo be accepted by ihe co~rts, they might also enjoy a degree of acceptance by the Commission itselr. ’ Thio case is very different frcirn MUR 3366. That matter irivolved Bruce Herseheatsoh who, at me time, was both a 

candidate for the United States Senate and worked as a radio commentator. Unlike the Donian mncr, the 

I4erschensohn commentaries contained no reference LO Mr. Herschemohn’s candidacy or hk opponent. Xii fact. the 

only brief reference to Mr. Herschensohn’s candidacy seems to haw been initiated by nhe radio talk show host-not 

Mr. Herschensohn-in an unplanned and unsmctured fashion. Moreover, unlike the Doman matter, 

Mr. Ilerschensohn provided only short commentaries as pan of the larger show. By comparison, Mr. Doman was the 

host and controlled the content for the entire show. 

To our knowledge, none of the other candida!es for the 46’ district were given a similar OppGKhlnity to host any of 

the radio shows hosted bj Mr. Doman. This case is thus materially distinguishable from Advisory Opinion, 1998-17, 

7 
In defending their conclusion that the Doman campaign did not violate “any” provision of 

the Federal Election Campaign Act, Commissioners Sandstrom, Elliott, Mason and Wold argue 

the so-called “inedia exemption” rescues this prohibited activity. Ln Advisory Opinion 1992-37. 

however, the Comrnission specifically considered and rejected the applicability of the media 

exemption to a radio talk show host broadcast. &I alternative draft before the Commission, 

Agenda Document #92-13S-A, had proposed that “the media exemption is applicable to [the 

Randall Terry] show.” Id. at 6. In view of the applicability of the press exemption, the 

alternative draft concluded that “the continued operation of your show would not constitute a 

contribution or expenditure under the Act.” id. at 7. The alternative draft hrther stated that 

“[ylou may endorse candidates and make statements opposing candidates, including references to 

or solicitations for your own candidacy.” Id. At its meeting of October 22, 1992, however, the 

Comrnission discussed the applicabi!ity of the media exemption, rejected this alternative analysis, 

and directed the Office of General Counsel to circulate a new draft deleting the media exemption 

analysis. As a result, under Advisury Opinion 1992-37, a federal candidate acting as a talk show 

host may not use the media exemption to shield campaign-related activities, Le., solicitation of 

contribstions, promotion of candidacy, and attacks on opponents, from regulation by the Act. 

laterestingly, the media itself takes an even more restrictive view regarding candidatehost 

appearances. Unlike Advisory Opinion i992-37 which would allow a candidate to act as a host 

so long as the candidate does not engage in obvious campaign activities, the broadcast media 

apparently believes even a1 Wowing a candidate to host a broadcast, without campaign activity, 

falls outside accepted journalistic practices and the aedia exemption. Earlier this year, “CNN 

abruptly scrapped plans. . .for Vice President Gore to sit in as guest host of ‘Larry King Live’ 

after Republicans and many of its own journalists loudly complained.” kVashi?zgfon Posf, May 7, 

1999. CNN had invited the Vice President to guest host a show to discuss the shootings in 

Littleton, Colorado. 

CNN’s broadcast plans foi the Vice President generated “[a] wide range of critics [who] 

contended that the network was handing the leading Democratic presidential candidate an hour of 

free air time, unfeltered by questions, just as the 2000 White House campaign was heating up.” 

Id. Apparently, a number of CNN’s “own journalists loudly complained“ about the propriety of 

having a federal candidate “host’” a program. 16. These critics included CNN White House 

Correspondent John King who said that the Vice President’s appearance as a broadcast host 

“raises questions about our objectivity. If we are going to give him an hour, how can we defend 

not giving every other candidate the same opportunity.” id. Similarly, Tom Rosenstiel, heaa of 

the Project for Excellence in Journalism, maintained that CNN’s plan for the Vice President to 

act as a broadcast host was inappropria:e. In his view, CNN was “giving an unfair advantage to a 

czndidate for president by lending him thcir credibiliiy, thzir anchor chair, their air time.” Id. 

Fed. Elec. Camp. Fin. Guide (CC1.i) ‘E 6270. In that opinion. a cable operator wds allowed to provide free broadcast 

time 10 federal candidates so long as time was mde available to uN candidates. 

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Nor were journalists a!one in objecting to the propriety of a political candidate acting as a 

broadcast host. Republican National Committee Chairman Jim Nicholson faxed a letter to Larry 

King “vigorously protesting him huving u candidate fgr the presidency hosr his show and have a 

one hour reign on a very popular naticnal television show.” Aflunfa Journal and Constifurion, 

May 7, 1999 (emphasis added). Chairmian Nicholson wrote that allowing a political candidate to 

serve as a broadcast host: 

raises serious concerns. . , bowing you as I do, i feel certain you 

will not be comfortable if your 6ne propam is lamed into a 

contribution of‘ free air he t3 the “Gore for President Campaign.” 

And that is precisely what l fear is happening on CNN. 

The criticism directed at CNN recognizes the essential difference between having a 

federal candidate host a progam as opposed to a federal candidate being a guest on a program. In 

the former situation, it is the media which controls the format, asks the questions, and establishes 

program content. In the latter situation, however, it is the federal candidate who exercises full 

control over the entire broadcast, the air time and how it is used. 

Indeed, it appears CNN itsell recognized this crucial distinction between a federal 

candidate appearing as a guest as opposed to a host or a program. Just hours before broadcast, 

CNN changed Its mind and instead scheduled the Vice President ta appear as a guest and not a 

host. The producer for “Larry King Lire” explained that “upon further reflection, we decided it 

was too close to the oncomi.ig political season and felt it wouid be more important to move the 

Vice President YO the guest ‘s seal.” Id. (emphasis added). Likewise, Larry King explained that 

“after taking a long hard look at the political calendar, we decided it was too close to the 2000 

election to have a presidentiai contendei as an incwviewer, not interviewee.” Bopline, May 7, 

1999 (emphasis added). King announced that “the Vice President has graciously agreed to give 

me back n2.y microphone. ” Id. (emphasis added). 

If one were to analogize a radio or television broadcast to a newspaper, it would be as if 

the entire newspaper were simply handed over to the candidate with the instruction: “Go ahead 

and do whatever you want.” Wiih such control, a federal candidate could make all the editorial 

decisions-normally made by the media-2nd exercise complete control over the content of the 

front page, which favorable or unfavorable news stories to run, the content of those stories, as 

well as authority over editorials and commentary. Obviously, this is not the way independent 

’ Similarly, a Rhode Island talk show host plans to form aa exploratory committee for the United States Senate in 

2000 2nd continue to host her talk show-’% plan that immedia1ely drew cries of foul” horn Republican and 

Democratic candidates and leaders. Providwce Jciumul Bullcrin. August 18, 1999. Wanvick Mayor Lincoln Chafee 

stated chat “it’s an unfair advantage-no doubt about it . . , The rest of us have to pay for air tirne.” Id. Likewise, 

Rhode Island Democratic State Chairman William Lynch said, “l’mnot siiying that [she] would try to use (the show] 

to her advantage. . . Bur it’s impossible to avoid.” kf. 

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newspapers are run. Similarly, where a fcderal candidale exercises total and complete control 

over a radio or television broadcast, it is no longer a new media broadcast, bad rather a candidate 

broadcast and outside the media exemption. In fact, the media exemption specifically does not 

apply where “facilities are owned or conrrolled by orz~ political party, political committee, or 

cartdidate.” 2 U.S.C. 431 (9)(B)(i) (emphasis added).R 

What if Mr. Doman solicited contiibutions for his campaign while “guest hosting” a talk 

show? Or, what if Mr. Doman spen three continuous hours as “host” explaining why he should 

be elected to Congress? In our vicw, such campaign activity would go well beyond what is 

considered to be normal exempt media activity. What Nr Dornan said on the air, however, 

apparently made little difference to our colleagues as they refused to authorize an investigation to 

get these facts. It seems they would read the media exemption more broadly than Advisory 

Opinion 1992-37 and far more broadly than the approach taken by the media itself regarding 

‘‘Larry King Live.” We disagree and would find reason to believe, baed on the limited factual 

record tJore us, that Mr. Dornan engaged in campaign activity as a radio host which extended 

well beyond the usual and noimal editorializing Contemplated by the media exemption. 

We also disagree with the argument made by several Commissioners that this 

impermissible activity is somehow excusable because it occurred during a non-election year. At 

the outset. we note that the appearance Qf Vice President Gore on Larry King Live” which 

provoked such an outrage amongst journalists arid certain political party leaders was May 6, 

1999, a non-eleuion year. The dates of Mr. Doman’s talk show appearances were March 10-14, 

1997. March 31-April 4, 1997, and araund October 15. 1997. If it was outside appropriate media 

practice to have Vice President Gore host a radio show because it was “too close to the 2000 

election.” then Mr. Doman’s appearances simi!arly werc too close to the 1998 congressional 

election. 

More importantly, the Commission has never adopted an election yeahon-election year 

ale suggesting that a campaign does not begin until an election year. To the. contrary, both the 

Act and the Commission’s Regulations recognize that activity occurring in a non-election year 

will have m effect on the election year. For example, the limitations on contributions to 

candidates apply on a “per election” basis. 2 U.S.C. 441a(a)( I)(A), (2)(A); 11 C.F.R. $1 IO.I(b). 

indeed, it would be a bizarre interpretation of section 441a or the corporate prohibitions of 

section 441b to suggcst that they do not apply to non-election year activity. 

With respect to non-election year activity, we think the law recognizes that it is common 

for a great deal of House campaign activity to occur in the year before the general election. For 

instance, in the non-election year of 1997, candidates for the House of Representatives reported 

S 136.2 million in receipts and S73.2 million in disbursements. Federal EZection Conmission 

* Under the Commission’s regulalions. Xlhc facility IS so owned or controlled, the cost for a news story is not a 

cantribtition if tile news siory (it represents 3 bonujick news account communicated in a publication of general 

circulation or on a licensed broadcasting facility, aed (ii) is pan of a general pattern of campaign-relatcd news 

BCCOUII!~ which give reasonably equal coverage to all opposing candidates in the circulation or the listening area. 

11 C.F.R. $$100.7(b)!Z). IOO.S(b)(Z). 

10 
Press Release. at 1 (March 6, 1998). In 1997 alone, the Doman campaign coxmiltee reported 

receipts of $1,498,294 and disbursements of $1,337,060. Thus, one cannot plausibly argue that 

non-election year activity-especially that of the candidate aid the candidate’s own campaign 

committee-has no direct or indirect connection to an elecdi.on and! should fall outside the 

jurisdiction ofthe Act. 

HV. 

We disagree with the decision of Commissioners Sandstrom, Elliott, Mason and Wold to 

find no reason to believe that Mr. Doman and his campaign committee violated “any provision of 

the Federal Election Campaign Act.”9 Such a broad, bidet finding is not only rare at this very 

early stage in the enforcement process, bur it is particularly inappropriate in the instant matter 

where the violation seems so plainly established. Clearly, Mr. Doman and his campaign received 

something of value from a corporate entily wher, it used free air time to promalte Mr. Doman and 

to attack his 1998 general election opponent. 

Nor Is this campaign activity saved by the media exemption. In view ofMr. Doman’s 

control over the format and content of the show, this went well beyond normal editorializing. 

The radio talk shows were nothing more than a vehicle to promote Mr. Domain’s candidacy. 

Based on the statute and direct Commission precedent, there is reason to believe that the 

provision of free air time to Robert Doman and his campaign was made in violation of 2 U.S.C. 

4441b. 

Finally, the position taken by our colleagues in absolving Mr. Doman raises several 

unanswered questions. Could a radio or teIevision network turn over its news programming the 

week before an election to a federal candidate who uses the time to promote his candidacy, solicit 

contributions, and trash his general election opponent? Does it make a difference if the federal 

candidate/taIk show host only solicits contributions and berates his opponent during a nonelection year? By not even wanting to ask any questions or conducting the barest investigation in 

MUR 4689, it appears that the four Commissioners undoubtedly would answer in the affirmative 

As a bloc, Commissioners Sandstrom Elliott, Mason and Wold have voted not to pursue a number of significant 

mtiers. See e.g.. MUR 4689 (voted no reason to believe against Doman for Congress); Federal Election 

Commission v. Forbes (voted IO withdraw FEC case filed agammt Forbes for President Committee); Fedmu/ EIecrion 

Commission I,. Chrkticn Coulition (voted not to appeal district court decision favorable to !he Christian Coalition); 

Right 10 Lye Duchess County v. Federal Election Commission (Commissioners Sandstrom, Elliott and Mason voted 

not to appeal district court decision favorable to Right to Life Duchess Cuunty); MUR 1378 (dth Commissioner 

Sandstrom abstaining. Commissioners Ellion. Mason and Wold \*ortd against recommendations th2t NRSC had 

violated g441a(d) in sponsoring anti-Max Baucus ads); see 0130 Membership Regulations (voted to approve a new 

definition of member (1 1 C.F.R. $$lOO.S. 1 14.1(e>) which seriously vierkens the corporate prohibitions found at 

2 U.S.C. 0341b). 

9 
to the latter question and quile possibly also yes to the more absolutist position found in the 

former. Thus, they would aIlow Mr. Doman fo host a show and spend free air time promoting his 

candidacy and attacking his opponent when, at the same time, the media itse!f insists that it falls 

outside traditional media practice even to allow the Vice President to host a one-hour discussion 

of the Littleton, Colorado skootings that does not mention politics or campaign opponents. This 

incongruous result alone suggests the enor of our colleagues' approach. 

Scott E. Thomas 

Commissioner