FCDERAL. ELECTION COMMISSION 

Washington, DC 20463 

! 

i 

This was 

MEMO RAND UM 

received in the Commission Secretary's Office on 

TO: ~ The Commission 

~ Staff Director 

' General Counsel 

FROM: W. DoveNeneshe Ferebee-Vines 

Acting Secretary of the Commission 

~ 

~ 

DATE: 1 February 14,2000 

SUBJECT: ~ Additional Statement of Reasons for MUR 4689 

GC: Vincent. 

Press Of 

Public in 

Public RI 

Attachments 

Convery. Jr. 

lrrnation 

:ords 

ct? 
In the Matter of I 

Robert K. Dornan et. al. 

~ 

i\.fL% 4689 

Additional Statement of Reasons 

Commissioner David M. Mason .~ ... 

,.:~ 

.- 

: ... 

.: 

~. 

"' 

.._ 

. 

-. .. 

". .. . .. : 

.._ 

Introduction 

While in domplete agreement with the joint statement I signed with my colleagues 

Commissioners Elliott, Sandstrom and Wold, I write this additional statement to 

emphasize my view that this matter (invoking former Congressman Robert K. Dornan's 

employment as a guest host for several radio talk shows) did not constitute a close call. 

The media exemdtion, 2 USC § 43 1(9)(B)(i). so clearly applies that pursuing this matter 

would not have been substanda!ly justified. The First General Counsel's Report (GC 

Report) proceedsion the basis of fundamental methodological errors, in part, due to the 

misapplication of Commission advisory opinions, which are themselves confusing if not 

ill-founded. These errors caused the General Counsel to recommend proceeding with an 

investigation that11 believe is prohibited by the con, wuent limitations on this 

Commission's jutisdiction imposed by the FECA's media exemption and the First 

Amendment to tde Constitution. 

Because the media exemption, when applicable, prohibits any inquiry into t,he 

content of the brqadcasts at issue, there is no reason, contrary to the General Counsel's 

argument, to conduct an investigation to discover precisely what was said during the 

broadcasts, see GC Report at 23, or to fix precisely when Doman may have become a 

candidate within the meaning of Section 43 l(2). Id. at 23-24. Indeed, discussion of 

these issues was unnecessary to the disposition of the matter, and our inquiry into the 

circumstances of hiring Doman as a guest host, GC Repm at 14, or into any connection 

the broadcasts miy have had wi:h an election is prohibited under judicial rulings 

regarding the FEFA's media exemption. See. e.g., Render '.r Digest Associntiori v. FEC, 

509 F. Supp. 1210, 1215 ({%Si). 

1 
I 

I i. The FECA‘s Media Exemption I 

1 The text ofthe media exemption commands a broad reading -- “my news story, 

commentary or edIitoria1 distributed through the facilities of any broadcasting station” 

shall not be considered an experd’ I tture Fcgulaled by the FECA -- that includes but a single 

exception -- “unless such Yacilitiss are owned or controlled by any political party, political 

commirtee, or canbidate.” 2 USC 4 33 1(9)(Bjji~) (.emphasis added).’ By clear 

implication there +re no exceptions other than that regaiding ownership or control. 

’/. , 

.. . .. . 

... ~ 

i ’” 

.i 

.. 

:I 

. 

., : . 

;~i 

:.i 

.. 

... 

., 

,.... 

. . 

The legisl4tive history also supports a broad reading of the media exemption: 

[I]/ is not the intent of the Congress in the present legislation to limit or 

bujden iii miy wz,v the first amendment freedoms of the press and of 

asspciation. Thus [the media exemption] assures the ictgettererl right of the 

newspapers, TV networks, and other media to cover and comment on 

poiiticai campaigns. 

H.R. Rep. No. 934 1239, 93d Cong.. 2d Sess. 4 (1 974) (emphasis added); niso cited in 

FEC v. MCFL, 47i9 US 238, 250 (1986); Austin 11. Michigan Chamber of Commerce 494 

US 652, 668 (1990) jconstruirig a “similar [state] exemption”); FEC v. Phillips 

Publishing, 517 FI Supp., 1305, 1312 (D. D.C. 1981) (similarly adding emphasis so as to 

apply a “broad” cdnstruction). 

Norable inlboth reported judicial opinioris hearing principally on the FECA’s 

media exemption (Readers Digest and Pliiilips) is the extension of the exemption beyond 

the pages of the publications involved into promotional activities such as direct mail 

subscription solicitations ana publicity-seeking video tapes. The Pliillips court appears to 

acknowledge that ;“the questioned communication is not a news story, commentary or 

editorial,” 5 17 F. Supp. at 13 10, but nonetheless follows Readers Digest in extending 

rrotection of the Gedia exemption to prornotiorial activities “in its capacity as the 

publisher of a nen$letter.” id. at 13 13. The Rcucfers Digest court contrasts such 

“legitimate press &nctions” with conjectural anonyr:lous election day distribution of 

charges against a {andidate “in a maniier unrelated to the sale of its newspapers.” 509 F. 

Supp. at 1214. ~ 

In direct contrast to this expansive reading commanded by the courts, the General 

Counsel attempts Io invert the “press capacity” analysis to restrict application of the 

media exemption and to extend jurisdiction to thc substance of rommunications made 

during the radio b!oadcasts, r$.hich appear to he the core media function of the radio 

broadcasters (Saldm Radio Networks and Prt-mierc Radio Networks) responsible for the 

programs at issue. GC Repori at 19-2 1. 

’ See First General C~uiisel’s Repoit in MUR 3453 et. al. at 3 and First General Counsel’s Report in MUR 

1S63 at 2 for dcscript/ons of the Commission’s broad interpretation of the nicdia exemption. ’ I’his provision is ssstmially reiterated in parai!t.l fashion in the Commission’s regulations at 11 CFR § 5 

I OO.S(b)(Z) (espenditure) and 1 OO.:(b)(Z) (contribuiion). 
j_:. 

,_: 

i_ 

... 

2 . 

i, . 

o he radio programs at issue were clearly *&in a continuing se~es:” MCFL, 479 US 

at 251T3 produced /*th.rough the faciiities of t!ie regular [programs],” id. at 50, “by a siaff 

which prepared . .I. pre.+ious [and] subsequent [programs],” id., following a loose but 

standard fOI?Tka;, atid “distributed to the [progarn’s] regular audience,” id., at regularly 

scheduled times. (n RfCFLI the Coun concluded that “it is precisely such [actors that in 

combination pernh the distinction of campaign flyers from regular publica:ions.’s .u. at 

251. Seleciing a &est host for such regularly-scheduled programming does riot take the 

shows out ofthe ryalni of regular media functions. The radio networks presumably havc ;I 

contractual obfigation to provide a specified type and amount of programming to radio 

station subscribers; see GC Report at 1 1; Response ofABC, Iiic., nfidavir afFri.rrtik L. 

Rophael, Vice President at para. 4, and routinely use guest hosts when regular hosts are 

unavailable. Kesporise ofSnleni Rorlio Network at 2, and Deciriration of Greg R. 

Atiriersori. Pressi&. Indeed, the selection of hosts, authors and commentators is 

quintessentially a hedia function: broadcasters accept programming from independent 

producers, magaziaes and newspapers accept articles from frieeiance authors, and 

newspapers select bpinion articles from their own staff, syndicates and individual 

”I 

submissions. ~ 

The FECA’s media exempiion does not protect any activity by a media 

corporation, but it hoes apply to material “distributed through the facilities of any 

broadcasting statidn ’I That the programs at issue were distributed through the facilities 

of Salem, Premiere and various individual radio broadcasting stations is uncontested. GC 

Report at 10- 1 1. 

I’ 

i 

, 

The princidal issue in Reilclers ’ Digest and Piiillips was how far he,vorid the 

normal pages of a publication the media exemption extends. Under these precedents, thc 

radio netw0rk.s could have promoted the programs at issuc by distributing video tapes 

reenacting alleged ivoter fraud in Dornan’s I996 election, purchasing newspaper ads 

shortly before the election criticizing Dornan’s opponent and warning readers not to vote 

before listening to lhe radio programs at issue, and engaging in a direct mail campaign 

promoting Dornanrs guest host appearances, see P,hillips, 5 17 F. Supp. at 13 I 1 - 13 17, and 

still have enjoyed tiic protection ofthe media exemption. Since the programs at issue 

were in the ordinady course of the radio networks’ broadcast operations, GC Report at 10- 

11, it is beyond question that the media exeniption alipiies. 

I--.- 

rhough the appeal wbs vacated 3s moot due lo the Commission’s abantlonment of its investigation, the 

disrricr court opinion $1 FEC 1’. Md/iitie!dic~ Cablevision /tic., No. 94- ISZO-.\.fLiJ. slip. op. at 13 (D. Kan. 

Aug. 16, 19953, helpfully stimnwrized case precedents regarding rhc inudia exemption as applying “a.liere a 

news story, coninmcrd~ or editorial is published by a press entiy in the orci:nary course crfa continuing 

series of pubiications.‘\ 

1- 

3 I 

I 
The Two-Stage Process for Mediz Exemption Inquiries 

The focuslofthe statute en facilities and ofthe courts on press functions or 

capacity are desigh to exclude any inquiry or consideration of the substance of a 

comniuraication in determining whether the media exeniption applies. See, e.g., Respome 

oj.4~~. bit. at 54. 'ivttiie this re, ctriction is clear from the statute, courts have mandated 

a Iwo-stage structura! approach to protect the media from inquiries into the. substance of 

or motivation for !heir editorial content when the media exemption may apply. Courts 

have insisted that the Commission restrict its initial inquiry to whether the media 

exemption applies. Readers Digest, 509 F. Supp. at 1214-1215; Phillips, 517 F. Supp. at 

1312-1313. OnlyiaRer concluding that the media exemption does not apply may the 

commission commence an inquiry under its otherwise applicable "in connection with" or 

"purpose of influencing" standards. 

I 

.... 

I i 

.. 

.... -. 

. .. 

:_:i 

.. ^ 

... 

. ~. 

.. 

.. ... 

This two-stage process was mandated because the media exemption represents a 

fundamental linii(ation on the jurisdiction of this agency. As the Rerider's Digest court 

expressed it: ~ 

! 

freedom e)- the press is substantially eroded by investigation of the press, 

even if le& action is not taker) following the Investigation. Those 

concerns are particularly acute where a governmental entity is 

investigating the press in connection with the dissemination of political 

matter. Ttese factors support the interpretation of the statutury exemption 

as barringieven investigztion ofpress activities which fall within the 

exemption. 1503 F. Supp. at 1214.1 

I agree with the Genera! Counsel that the radio networks involved are qualified 

media entities, that the subject broadcasts were distributed throtigh the facilities of 

various broadcasting stations, and that wither Salem nor Premiere are owned or 

controlled by a pdlitical party or candidate. GCKeporr at 20. Contrary to the General 

Counsel's readind of Commission precedeill (proposed factual and legal analysis to 

Salem at 17), I find it beyoiid dispute that talk radio programs of the kind at issue 

constitute commehtaries within the meaning of the FECA's media exemption: and 

equally indisputakle {hat the production and distribution of such programs represent 

actions as a media entity. This should have ended the matter. 

' This conclusion is cbnsislent with Advisory Opinion 1932-44. in which the Commission observed that 

"commentary" \vas hroad in scope: 

I 

Although thd statute and rtplations do not define "commentary," the Commission is of the view 

that conmenary camm be tinijted to the broadcaster. The exniption already includes the terni 

"editorial" ihich applies specifically lo the hroadcaster's point of view. In the opinion of'the 

Cornmissiod. "comrncntary" was intended to allow third persons access to the media to discuss 

issues. The ~(~~ILIIz and regulations do not define the issues permitted to he discussed or thc fomiar 

in which the) are to he piesenfed under the "commentary" exemption nor do they set a time limit 

;IS to the len&tli of the comnicrtlciry. 
Order of Analysis i 

.. 

.. .: 

.. 

. : 

ii >‘ 

.. .. 

.. . 

As a thresdold matter, the General Counsel’s Report reverses the order of analysis 

required by Reoricr ’s Digest and Phiilips. The “analysis” section of the report (Part C, 

pp. E 1-21) begins’with a six-page dimmion of “purpose of influencing“ (numbered ‘I) 

and then proceeds 10 a four-page discussion ofthe media exemption (numbered 2). This 

is far more than a question ofediting; the inversion reveals a fundamental misconception 

that the degree or nature of the relationship of a broadcast to a canipaign has anything 

whatsoever to do \#ikh whether the media cxemption applies. This mode of analysis arid 

inquiry flies directly in the face of Reader’s Digest: 

until and unless the press exemption were found inapplicable the FEC is 

barred fro4 investigating the substance ofthe complaint. No inquiry may 

be addressed to sources of information, research, motivation, connection 

with the cdnpaign, etc. Indeed all such investigation is permanently 

barred by the statute unless ir is shown that the press exemption is not 

applicable. 1 ~I- 309 F. Supp. at !215.] 

The General Counsel proceeds precisely in opposite fashion, ending the “purpose of 

influencing” discussion with the conclusion that 

! 

i 

Given the nature and purposes ofthese programs, it is unlikely, as next 

discussed, that the aforernentioned instances of express advocacy could be 

exempted &der the press exemption. [GC Repor1 at 171 

In other words, the^ General Counsel would grant or wiT.hhold the media exemption based 

on the Commission’s judgment as to the purpose ofa program. Because the exemption is 

intended to protectlprograiiiming which othcnvise might be determined to be for the 

purpose of in fluending an election, the General Counsel’s nielhodology would render the 

exemption a complete nullity. 

I 

I 

Stripped to iits esscntials, General Counsel’s argument is: (1) that candidatecontrolled appearahces are generally campaign related, GC Report at 14-1 5; (2) that 

”neither SRN nor $’remiere too!{ any affirmative steps to prevent Doman . . . from 

engaging in any election re!ated activity on the shows,” id. at 10; and, therefore, (3) the 

media exemption is not applicable. Id. at 21. 

I Prohibited Inquiries 

Given the j/idicial command that inquiry into “connection with the campaign” is 

“pem?anmtly barred by the statute unless it is shown that the press exemption is not 

applicable.” Renrle)s Digesf 503 F. Supp. at I21 5 (thus removing slep (1 ) above), the 

General Counsel’s argument can be further distilled to the startling assertion that 

candidate appearadces in the niedia are not protected by the media exemption unless they 

comport with FEClapproved fonnats and editorial policics, including "affirmative stcps 

5 
:.. 

to enscre that viexvers do not conclude that the airing of the programs or material 

constitutes an endbssement.” GC Report at 19. The G.eneral Counsel admits that 

candidates may serve as hosts ofradio programs in some circumstances, GCReport at 11- 

13, concluding that “the fact that the host is a candidate is not by itself dispositive” and 

urging examinatibn of “all circumsiances ... in order to determine the pu.rpose of the 

communication.” ild. at 14. Elnderlinjng this focus on motivation (purpose), the General 

Counsel proposes to advance an investigation by an inquiry into the radio networks’ 

editorial policies. GC Meporr at 20 n.22,23. 

It is difficult to imagine an assertion more contrary to the First Amendment than 

the claim that the FEC, a federa! agency, has the authority to control the news media’s 

choice of forrnats,~ hosts, commentators and editorial policies in addressing public policy 

issues. Yet, the G:eneral Counsel appears to contend that the FEC has the authority to 

approve or prohibit candidate appearances in the media based on what candidates say, id 

at 13. and that the~cornmission has the authority to require the media to censor or edit 

candidates to comply with the Commission’s mliiigs. Zd. at 20. (See further discussion 

ofthe purported basis for this authority in advisory opinions ir?frc.) It is equally difficult 

to fathom why tliq General Counsel believes it is appropriate under any circumstances for 

this agency to inqhire into the editorial policies of what are, uncontestedly, legitimate 

media entities (“press entities as set forth in the cxemption,” GC Report at 20).5 

I 

’The medid exemption would clearly allow a brodcaster to air a Dornan campaign 

rally replete with express advocacy, to bracket the broadcast with favorable commentary, 

to follow it with ah editorial endorsing Doman, and to cap it off with an appeal for 

listeners to contri6ute funds to Doman. See, cg., A0 1980-109. Thus, the relationship 

of a broadcast to 4 campaign (e.g. whether it includes express advocacy or constitutes an 

endorsement) canlhave no bearing on whether the media exemption applies. It was the 

obligation of the General Counsel in this matter to determine whether the media 

exemption applied without refereme to any connec.tion with the election. By inverting 

the stages of the inandated two-stage inquiry under the media exemption, proposing 

indefensible govebnment-approval requirements on media formats. reaching an indefinite 

conclusion (“the Shows may not be protected by the ‘press exemption”’ GC .Report at 

21), and proposing to investigate media editorial policies, the General Counsel failed to 

presenl even a plabsible argumen! that the radio networks’ broadcast of radio programs 

was anything othdr than a protected inedia function. 

I 

Given the Idirectivcs of Recider‘s Digest and Piidlips, it would be helpful for the 

General Counsel $0 clarify in future cases bearing on the media exemption whether he is 

recommending reason to believe for the limited purpose of discovering whether the media 

exemption applies, or whether he has concluded that the media exemption does not apply 

in addition to the wiighty First Amendment concenis forbidding such inquiries, it is unclear how any 

inquiry into a tadio si?tion’s editorial policies would help establish whethrr or not ccrmin broadcasts were 

aithin the scope of its media functions. The FEC would either have to conclude thiit the editorial poticics 

thenselves \wre so deiicicnt as IO disqualify the station as a lcgiiirnatc media entity or to nqpe that the 

station had Fdiled to i;Ollow its own polic:es and IO impose P governmcnt sanction for the failure. 

5 

I G 
:. i 

,/ 

. .> ... 

.. 

.!L 

i: 

:.> 

... . 

;:: 

.... 

.. . .. - 

and is recommending a more complete investigation. In this instance, the General 

Ccunsel was not drecise, srating that there was “reason to believe that SKY and 

Premiere” were G4dot, acting in their [press] capacities,” that they “may have” given free 

time to a Federal dandidate, and that Doinan’s appearances ‘‘may not be protected by the 

‘press exemption.”’ id. at 2 1, However, the discussion of the “purpose of influencing” 

standard and express advocacy along with the proposal io seek transcripts of the programs 

at issue can only b$ read as a rejection of the media exemption, for surely that exemption 

canno1 be held to fit or fail based 011 the content of3 communication. 

14. Counsel’s Arguments Against the Media Exemption 

The GenerbI Counsel advances a number of arguments and authorities against 

application ofthe media exemption to the progams at issue. None overcome the weight 

of a proper interpretatio:: and direct applicaiiorr of the media exemption. En addition, 

each ofthe proffeted arguments are deficient on their own grounds. 

Free Advertising ~ 

i 

The General Counsel argues that Doman’s appearances are “akin to free 

advertising time” kd, therel‘ore, “wilhin the realm of mere in-kind contributions.” GC 

Report at 21. I agree that the distinction between advertising and editorial content or 

regular programming may be useful in construing the scope of the media exemption. In 

this c.ase, despite \Iviggle-words such as din to and within rhe reoh oJ; the Domanhosted shows clearly represented regular programming of the broadcasters, id at 10- 1 1, 

and cannot fairly (r even reasonably be described as advertising. Of particular note is the 

General Counsel’s own description of both radio networks’ business operations as 

exchange or barte<-based. The radio networks provide programming (including the 

programs which Goman hosted) “in exchaage for c.oinineicia1 air time,” which the 

networks then “resell[] to advertisers.” Id at I I.. If the networks made the commercial 

time, which they rbutinely receive in exchange for programming, available to a campaign 

without charge, an’ in-kind contribution would clearly result. I find it equally clear that 

the programming {vhich generates advertising income is a “legitimate press function.” 

Recrciers Liiggcst, 599 F. Supp. at 1214. 

In addition^ the Conimission has already somcwhat eroded the distinction between i advertising and regular prograniming in Advisory Opinion 1‘395- 17, While that opinion 

was predicated on icqual access, there is no equal access requirement in the FECA’s 

media exemp!ion’(and, therefore, we cannot use the specific condition proffered and 

approved in A0 lQ98-17 to limit or encumber the media exemption with regard to other 

During Conuiiission’discussion a question was raised about whether some standard akin to the FCC’s ti 

Fairness Docnine or equal-tinx requirmmcnts might apply iii his matter. The FEC.4’5 media esrnrption is 

not conditioned in an$ way on fairness or equal access. To the cs!cn! that special considerations may apply 

10 broadcast media. tltose issues are within !he jurisdiction of the FCC, nor of this Agency: “the ‘equal 

opportunity’ rule undc!r cornrnunications law, 47 USC 5 3 I5(a). ordinarily rcsolves disputes like this.” 

Slatenient of Kcasons loFConimissioners Thomas and McGarry in MI!R 3366. 
i: : 

,i 

,. . .. . 

.. 

... : .:: 

.. . 

1’. 

i,. 

... . 

... 

.. 

: 

‘ -. 

;_ .

.,:: 

media entities. (Sde further discussion of the attempt to cite advisory opinions as limiting 

the scope of the rnbdia exemption i@z.) 

Programming ConLol 

~ 

The General Counsel argues that the media exemption is inapplicable in this 

matter because “SRN and Premiere did not retain control over tbe context in which 

Doman’s canipaigk discussions were used.” id. at 21. Having concluded that neither of 

the networks are “controlled, in whole or In part, by any political party, conirnittee or 

candidate,” id., I db not read the General Counsel as arguing that “control” for parposes 

of the FECA’s mebia exemption c!.anges from program to program and hour to hour 

based on the pro+n content, format and personilel. 

confuse or confrate [he analysis of whether a media enFity is owned or controlled by a 

party or candidate !with the inquiry into whcther a corporation is acting in its media 

capacity in distributing spec,ific material: these are consistently stated as separate 

questions in court brecedents arid tile Commission’s awn documents. see Readers 

Digesr, 509 F. Sudp. at 1214-15. 

7 The Commission should not 

The “control over the context” conclusion appears to be derived from a purpose of 

influencing analysis. This analysis commences with citations to advisory opinions that 

fail even to mentiq\n the media exemption while approving candidate-hosted broadcasts. 

GG Report at 12. The analysis then shifts to advisory opinions addressing newsletters 

published by candidates or political cornmiltees (for which the media exemption is not 

applicable), concl4ding that “By utinlogy the media activity of a candidate host is held to 

a different standard than the media activit.y cfa third party host or commentator 

discussing or interhewing a candidate.” id. at 13 (emphasis added). The report then 

analyzes Doman’s! appearances pursuant to a “purpose of influencing” 

14- 17. In other w4rds, the General Counsel. would trcat programs hosted by candidates as 

if they were owned or controlled by the candidate. In his matter, however, the programs 

were clearly owneb (copyrighted) arid distributed by radio broadcasters who chose to hire 

a politicaliy prominent host. 

Id. at 

Assuming thar this “control over the context” concept is intended as a test of 

whether an entity is acting in its media capacity, sec i+oposal F‘uctzrcrl urd Legal 

Atiuljsis to S(lle)?i ~rrx7dcrrstbrg at 17, it should be rejected. The fact that Dornnn’s 

commentaries during the broadcasts were not scripted. edited or censored by the radio 

networks is irrelev~ant. The normal editorial function of a radio network in relation to talk 

radio programs is to select a host. Networks do not normally require those hosts to work 

’ In fact, it is prcciselj issues such 3s content. format and personnel into which courts have prohibited the 

Commission from inqiiring prior to a determination that :he media exemption does not apply. See Recider’s 

Digesr, 509 F. Supp. at 1214-15, arid Phillip. 517 F. Supp. at 1313-14. ContToi ofa facility a k. in to 

ownership requires an’onwin” direction of operations extending to various operations of the media entity, 

similar IO the position ofpublisher for a print publication. 

esemption before that~exemptiori :s even analyzed. 

1s P 

As noted above. this l :mode ofanalysis represents an implicit bl;t unmistakable rejection of the media 
't. ._* 

.. . 

i .. .; 

,.r 

,. 

. 

.. 

>i 

.. 

.. . 

from scripts, have, topics pre-approved, or to subject themselves to real-time editorial 

control. In this respect, Dornan functioned in the same fashion as any other talk radio 

host or guest host.' If it is permissible at all for radio broadcasters to allow candidates on 

the air (as it clearly is), I do not see how this Commission could claim any authority to 

require broadcasters to censor candidates' cornments. 

The selecti(or. of Doman as a guest host was weli within the reasonable editorial 

judgnenl of the rddio networks. Doman worked as a radio commentator prior to his 

entry into politics,9 and contemplated a peimanent return to the field during the very 

braadcasts at issue." However, even if Domaii had no prior experience in radio, it would 

be inappropriate dr the Conmission to second guess a broadcaster's editorial judgment 

irk choosing a host~fer a regularly scheduied program. Under the two-stage process 

mandated by the cburts for this agency's investigations of media entities, unless we have 

de!emiimed that the media. exemption is inapplicable "No inquiry may be addressed to . . . motivation, connehtion with the campaign,, ctc." Reaifer 'S Digest, 509 F. supp. at I 2 I 5. 

Content Limitations in Advisory Opinions 

The General Counsel argues that the Commission, through the advisory opinion 

process, has lirnitea application of the media exeniption when candidates or political 

committees are involved based on a variety of Factors specific to individual programs and 

which appear to b{ purely editorial decisions, including: "control over the means of 

presentation," the hianner in which campaign material is used, and affirmative steps to 

ensure that viewers do not conclude that programs constitute endorsements." GC Repor! 

at 29. Each of the (?pinions cited for these limiting factors (1 996-41, 1996-48 and 1996- 

16) approved the 4roposed broadcasts. Thus, the General Counsel is arguing tha.t 

programs which fe'ature candidares but which f%l to adhere to FEC-approved formats are 

not eligible for thc(n1edia exemption. Taking n factual stntement (such as an intent to 

pWi& WtlP ace95 6f Io ZV61d cndorscmems) iitcluCirxj in a?) amisixy opiniim 

represents a gross 4buse of the advisory opinion process. Facts presented hy one entity in 

an advisory opinion request should not be he!d as binding on different entities in different 

situations. See Stafment of Reasons of Vice Chaiiman Wold and Commissioners Elliott, 

submission and thin citing that v~hii~ary factual proffcr a2 limitirig Ihe niedia generally 

" GC Report, Attach. 3; at 2., Response of Salem Radio Network at 3, and anached swom declaration of 

Greg R. Anderson, Prelsident. 

lo Id. at 13. 

" The most troubling of the proposed AO-derived restriciioos. affirmative steps to avoid the impression of 

an endorsement from 40 1996-48. was clearly never intended to be generally applicable. Most notably, that 

opinion addressed !he jebroadcast of campaign commercials, subject of a specific restriction at 

44la(a)(7)(B)(ii). Furher, as noted in :he First General Counsel's Report in MUR 4863 (at 9, n. 4): 

Applied strictly. fhk language could be rezd to mean that an othensisc exempt conmmentary that 

explicitly or implicitly endorsed a candidate could not contain a rebroadcast of an endorsed 

candidate's advertisement for the purposes of commenting on it. However, such il reading would 

wrench A@ 1996f4Y from its contest. I 

Esen if we accept the amazing claim tliar the Conimission has any authority io place conditions or 

limitations 011 a inedia bn!ity's political cowrap or endorsctnents, constniing AO 1996-48 to place 

conditions on candidate appearances generally would wrench the opinion from its contest. 

I 9 
I .. 

‘i. 

. : 

.. 

.. 

, ;.. 

,_i 

: 

Mason and Sandstrom in Clinton and Dole Audits. In any case, advisory opinions cannot 

be used to suppod an interpretation plainly in conflict with the statute. The cited factors 

are not useful either in determining whether a media entity is owned or controlled by a 

candidate or in dejermining whether particular programming or articles are within normal 

media functions. 

Even mor4 troubling are citations to advisory opinions involving candidate 

appearances in the media which themselves Fail even to men!ion the media exemption. 

(GC Repopr at 17-113 citing AOs 1977-42, 1992-5 and 1992-37). By definition ihcse 

opinions are of no’ use in determining whether the media exemption applies to she 

programming at ijsue in this (or any otiier) matter. ~t is difficult to discern why the 

Commission avoided even mentioning the media exemption in the cited opinion.^ (or in 

similar AOs 19Sli37 and 1994-1.5), wt;.ich plainly iwolved hroxkast activity. Some of 

the AO requests +sed issues related to funding or production by unions, corporations or 

non-media entities; others presented questions of candidate control far more obvious than 

this matter. Again, each cited opinion approved the proposed broadcasts. One might 

argue (though theie opinions did not) that having concluded that the proposed programs 

were not for the purpose of influencing any election an analysis of the media exemption 

was unnecessary. IHowever, that mode of analysis is csplieitly prohibited by Rearfers ‘ 

Digesl and Phillips, which command that the esemption be analyzed prior to any inquiry 

into “purpose” wqen the media exemption is erguably applic.ahie. 

I 

~ 

This niattdr shows the wisdom ofthe c,ourts’ reasoning, for even ifthe various 

advisory opinions~cited are not used in an attempt to place editorial restrictions on 

broadcasting stations, hey are clearly invoked as speech restrictions 011 candidates 

themselves. Candidates may appear in the media, say the opinions as cited, as long as 

they do not say a&hing about their campaigns or anything uncomplimcntary about their 

opponents Id. at 1). While such restrictions might be endorsed by some reformers as 

having the potentila1 to improve political discourse, they are hardly consistent with the 

First Amendment or with the nature of politics. 

Reaching the summit of inappropriate citations arc the General Counsel’s 

references to opinlons involving newsletters ?ublished by candidates or political 

committees (1 99O,-j and 1988-22, GC Xep,por~ at 13). Since candidate-owned publications 

MI outside the media exemption, opinions addressing them can have no bearing on the 

elucidate what might constitute legitimate media functions. Since both of the cited 

opinions present ownership and control of the publications as undisputed facts, they are 

of no value in determining whether the programs at issue in this matter were owned or 

controlled (within the meaning of the media exemption) by a candidate (assuming the 

General Counsel is even disputing the issue). 

application of the I :exemption to other publications or broadcasters, nor would they 

General Counsel urges some so:^ of content test, perhaps applying excliisjvely to 

candidate appearances ir? the media. I understood the General Counsel to coiltend, in the 

course of Comn&ion discussion of this Matter, that the media exemption might not 
i~ 

.. 

.. 

. .. 

,i 

.. .. . “5 

>. 

i: 

.. 

.. . 

apply, for instance, if a broadcaster or publisher opened its pages or facilities to a 

candidate who then made so1icit;llions for his campaign. There is, however, no express 

advocacy or solicitation limitation to the media exemption.j2 In fact, it is plain that one 

purpose of the media exemption is to permit explicit endorsements of candidates by the 

media. Having defermined that the talk slrows at issue were within the ordinary course of 

the radio networks’ broadcasting functions. the Commission has no authority to inquire 

into what was sa& or by whom. CJ GC Repure at 23 (discussing discovery of progam 

transcripts and stition policies). The Commission has no authority to condition candidate 

appearances or1 b<odcasts to Commission-specified format lirriitatioris or content 

controis. ~ 

111. Express Advocacy arid the “Campaign-related” Test 

While not’directly relevant to my analysis of this matter, I feel it necessary to 

espress my strong disagreernent with two additional features of the Gensml Cotrnscl ’.s 

Report: its invocation ofa definition of express advocacy derived from Fi‘ltrgntch (at 17) 

and its reliance on a “campaign-related” content analysis (at 12). 

The. P”Wf..~ opinion is nicrely the latest in an unbroken string ofjudicial rebukes to 

this agency’s tend:entious efforts to redefine the Supreme Court’s express advocacy 

d~ctrine.’~ 1 belidve that the rationale presented in F1o-pfch, 807 F 2‘ld 557, is itself 

---1---- , ’’ This position is fully consistent with previous Commission interpretations in this regard. For instance, in 

Advisory Opinion 1980-109. the Commission held that a publication’s editorial endorsement arid 

solicitation of contributions for a Federal candidatc was protected by the media esemption as long as the 

publication did not adt as ii condui: bu! irisfructcd readers to send contributions directly 10 the campaign. In 

Advisory Opinion 1982-4;4, the Conlniission approved a broadcasting station’s provision of two-hour 

blocks of free time toitlie Democratic and Republican National Committees when at least one of the 

programs incli:ded in^ express solicitation of finids for rhe committee arid to support that party’s candidates, 

concluding that “the distribution of free time to both political parties is within the broadcaster‘s legitimate 

broadcast function an?, therefore, within thc purview of the media exemption.” This position was even 

extended in .4dvisorylCpinion 1998-17 to free advertising time, given assurances of equal access in that 

instance. 

‘’ Rtrcklcy v. I’nleo, 4p4 U.S. I. SO (1976); FEC 13, M~~ssociirtseris Cifixtisfiw Lfi, Inc., 479 US. 238, 248- 

49 (1086); A’orrh (irrolirri~ Right To L+, /tic. 11. Dnrhft, 168 F.3d 705, 712-13 (4th Cir. 1999); Virgitrin 

Soc :I! For I-lrrmnn Lff, />IC. 1’. Co/drvdf. 152 F. 3d 268, 270 (4th Cir. 1998); FEC v. Clrri.sfiuu Acfion 

hk’hvork. ftic., I10 F.3d 1049, 105 1 (4th Cir. 1997); lotm Righi to L(/k> Comnr., Iiic. v. IYiNicrms, 187 F.3d 

963, 968-70 (Sth Cir. 1999); Broic.t~rinrrsilrc.cr P;:tro/is rlli/;.ctiti,g Cfime v. BukIiwtt, 137 F.3d 503, 505- 

06 (7‘h Cir. 1998); M!iw Rigkt To Liji. Cbr,itti.. /tic. 1’. F€C+ 914 F. Supp. 8, 12 (D. Me. 1996), aff’d per 

curiam. 9s F.3d 1 (Is; CI:. 1996) (“[Wje al%nn for subsrantially the reasons set fonh in the district court 

opinion.”): Fnircher 11 FEC, 929 F.2d 468. 472 (1st Cir. 1991); FC‘C I,. Ccwd Long /s/n~rt/ Tux Reform 

/nit>iediutt?!v C‘ownr.. 916 F.2d 45, 53 (2d Cir. 1980) (cn banc); Floridrr Righi To L@, hc. I,. A,forihom, No. 

98-770-CIV-ORL-I9~, slip op. at 10-17 (M.D. Fla. Dec. 15, 1909); Perry v. Bartlett No. 29S-CV-43- 

BR(2j. slip op. at (E.?. N.C. 1999); Kansans for Lifr. Irtc. I). Gactic. 38 F. Supp.2d 928 (D. Knn. 1999); 

Right IO /~fi ofMich.i hc. I,. Milier, 23 F. Supp.?d 766 (W.D. Mich. 1998/; flurtrtecl f[~reiii/roo[/,~~/i~t~es 

cf,lfic:/t.. /nc. I:. jiiil/er. 21 F. Supp.2ci 740 (ED. Micli. 190s) (same); i,i.rmotti Rislri 10 ~[fi, /trc. 1%. Sorrel/, 

19 F. Supp.2d 204. 2\2-t6 (D. Vt. 199s); High 7’o!.$e of’Dirrcht!ss C‘oziqy, Inc. I,. FEC, 6 F. Supp.213 248 

(S.D. N.S. 1998); C/&ofi 12. FC‘C, 927 F. Supp. 493,496 (D. Me. 1996). nffd on other grounds, I14 F.3d 

I309 (I SI Cir. 1997); ~EC v. ~/JPi.V/iNtJ ..lrrioti A’cnwwk, 894 F. supp. 946 (w.D. ~a. I 995), affd per 

I 

I 

I 

I 

11 
contrary to the Subreme Court’s holdings in Buckley and MCFL But part (b) of the 

commission’s ex@s advocacy regulation is far more expansive than even the Fzrrgutch 

opinion. First, the Conimission’s regulation omits what is arguably the mosf. critical of 

thee steps outlinc~ in Furgatch ’3 proffered test: the requirement for an explicit call. io 

action. Nothing “kxpress” or “explicit” is required under part (b), it covers statements 

which merely “endourage[] actions.” Second, part (b) is cast as a “reasonable person” 

test, generally im$yiiing a jury determination of 8 commoniy accepted meaning. The 

Atrgutch opinion,^ however, holds tha: a statement must have “no other reasonabie 

interpretation,” “[o]nly one plausible meaning,” and excludes “any reasonable alternative 

reading” 807 F 2”: at 864. Furgatck requires “no ambiguity,” Id at 865, clearly a 

different test than bvhat a reasonable person might take a statement to mean. Especially in 

the context of Bu&ey, the Fiirgatch phrase rnust be read as more akin to a “beyond a 

reasonable doubt”) standard than to the “reasonable person” test embodied in part (b) of 

our regulation. Mbreover. presence or absence of express advocacy is “a pure question of 

law,” Chrisritrn Cbaiitiotr, 52 F. Sup. Znd at 62 nrrd ccrses cited therein, determined by 

judges and not by la jury as a reasonable person test might imply. 

The GC-R&orf in this matter is even less clear than $lOO.22(b), slating in the text 

only that “speech should be read as a whole,” even if there are no express words or 

phrases, though a ‘footnote does add an element not explicit in the regulation, noting that 

“an exhortation thlough some form7 of [unambiguous] call to action’’ is required. (at 17, n. 

17). The radio excerpts cited (at I5 and 16), howcver, focus on the 1996 election, 

Sanchez’s perfo4ance in office, and n challenge to the 1996 results brought in the House 

of Representatives, failing to support the conclusory analysis of express advocacy as to 

any future election. 

The General Counsel also analyzed the conteiit of available program transcripts 

pursuant to a “cainpaign-related‘’ standard derived from several advisory opinions (GC 

h’ep;vi at [2-{3). For reasons nearly identical to those detailed in rejecting the 

“electioneering message” standard in the Statement of Reasons of Vice Chairman Wold 

and Commissiondrs Elliott; Mason and Sandstrom in the Clinton and Dole audits, 1 

conclude that the (hmnission may not use “campaign-rclateil” as a substantive standard 

and it should not he used as a shorthand phrase for describing various statutory provisions 

oftheFECA. 1 

curiam, 92 F.3d 117d (4th Cir. 1996): FECv. Sutvivrtl Edirc. Firrid, hc.. 1994 Wt 9658, ar *3 (S.D. N.Y, 

Jan. 12, 1994). afrd in pan and rev’d in part on orlier grounds, 64 F.3d 285 (Zd Cir. 1995); FEC v. 

Lblorucio Rtpiiblicor; Fed Cmip~tgr! Cortirc.. S39 F. Supp. 1448, 1456 (5. Colo. 1993). rev’d, 59 F.3d 

1615 (101h Cir. 1995). vacated and rcnianded on other grounds. 116 S. Ct. 2309 (19961; !I.i.sr Vir~iriiw~s 

For &fe, hc. v. Sttitif~, 919 F. Snpp. 954. 959 (S.D. W.Va. 1996); FEC 13. MW, 713 F. Supp. 428 (1989); 

FLC v. AFSCME 47i1 F. Supp. 315, 317 (D. D.C. 1979): Usrerhttr.q I,. Peca, 1999 WL 517849, at *IS17 

(rex July29. 1999);(Sf0/~ I*. froto. 326A.2d 1297, 1310-1 1 (Conn. 1987). 
Conclusion ~ 

I 

... 

i : 

_.i 

.. -. 

.... .. 

- .. . , ::. 

The niediai exemption is not rendered inapplicable simply because the media 

entity makes time lor space mailable to a candidate. (In fact, the exemption exists 

precisely to protedt such appearances.) It is comnionplace for newspapers to open their 

op ed pages to caddidates to discuss important public is~ues.’~ Various publications 

publish election ghides, sometimes including unedited statements of candidates (usually 

subject 10 length rbtrictions). If such directly election-related material is protected by the 

media exemption (as it beyond doubt is), how can the types of broadcasts at issue here, 

which occurred lohg before the election and of uncertain relation to it, fail to be 

protected? If candidate appearances on broadcast media are protected by the exemption, 

this agency has nd authority to inquire into the details ofthe editorial judgment of who 

was invited or what conditions were placed upon Dornan’s comments. 

Kegardlesd of the complexities of Doman’s election challenge and candidacy status, and despite I the plethora of arguments for imposing conditions and limitations on 

the FECA’s media exemption. this case is sinipie and straightforward. Salem and 

Premiere are medik entities within the meaning of the FBCA’s media exemption. Neither 

are owned or cont~olled by a candidate or political party. The production of radio talk 

shows is one, if not the principal, core element of their media functions. The production 

and distribution ob the programs at issue was part of these normal media functions. 

Under Reader. j: Dlgest and Fliilhps, these firidings end our inquiry. 

i 

It would have been inappropriate for the Commission to pursue an investigation of 

these matters. Indeed, it is unfortunate that their resolution took more than a cursory 

review by the Office of General Counsel. The length of the General Counsel’s Report 

(and ofthis statem)ent) only demonstrate the lengths to which It would be necessary to go 

to conjure a vialation of the FECA out of the clear facts and simple law at issue in the 

matter. ~ 

~ I Commissioner 

See, e.g., “George $J. Bush. the Betrayer, Troubles the Republican Soul,” by Gary Bauer in the October il 

7. 1999 New York Times. The article’s byline explicitly identifies Bauer as *‘a Republican candidate for 

President.” Because the FECA’s media eseniption does not differentiate between print and broadcast 

media. any stanilard proposed to apply to radio broadcasters would apply equally to newspapers.