December 30, 2013

Last Week at the FEC: Accusations of Partisanship and the Press Exemption Take Center Stage

Holland & Knight Political Law Blog
Andrew H. Emerson

Last week the Federal Election Commission did not meet, but made public two campaign finance enforcement matters that were resolved through the Commission's alternative dispute resolution (ADR) program, as well as a Statement of Reasons authored by the Commission's Republican members regarding a dismissal of MUR 6703, a complaint brought by a Libertarian candidate who alleged that he was wrongly excluded from a televised debate in the 6th District of Massachusetts during the last general election.

ADR Resolutions

The Commission published the results of ADR 649 and ADR 653, both of which were decided on December 17, 2013.

ADR 649 dealt with the American Postal Workers Union Committee on Political Action's (APWU COPA) failure to report expenses associated with communications with its members it mailed in October 2012. The Committee mistakenly amended its 12 Day Pre-General Report to include these expenditures as debt and agreed to file an additional amendment removing that debt during the ADR process. The Commission failed, by a vote of 2-4, to approve a settlement agreement and then exercised its prosecutorial discretion to close the file and terminate proceedings without assessing any penalty.

In ADR 653, the Commission's Reports Analysis/Audit Division (RAD) referred Edwin Peacock for Congress to ADR for failing to disclose all of its financial activity after the Committee amended its 2012 July Quarterly Report to disclose additional disbursements of $205,953.05.  The Committee advised the RAD that this disbursement was due to a clerical error related to repaying a loan made to the Committee by Mr. Peacock.  The Commission subsequently reviewed and approved the proposed settlement agreement, which included final termination of the Committee, by a 4-2 vote.

MUR 6703 and the Press Exemption

 

Republican and Democrat Commissioners voted unanimously to dismiss a complaint brought by Mr. Daniel Fishman, a former Libertarian candidate for Congress in the 6th District of Massachusetts, but split on whether the Press Exemption, found at 2. U.S.C § 431(9)(B)(i), should have barred it from investigation the subject matter of the complaint.

In his complaint against WCBV-TV, a Hearst Stations, Inc., television station, Mr. Fishman alleged that he was wrongly excluded from a televised debate and that, as a result, the station had made an impermissible corporate contribution to the campaigns of Mr. Richard Tisei and Representative John Tierney. The Commission's General Counsel investigated and recommended that the Commission find no reason to believe that WCVB-TV had made an impermissible contribution because it properly excluded Mr. Fishman from participating in the debate based on the type of objective, pre-established, criteria outlined in the Commission's regulations at 11 C.F.R. §110.13. While the Commission unanimously agreed that the station had met these criteria, the three Republican Commissioner's argued that they should not have reached that issue at all. 

Instead, in their Statement of Reasons, they argued that, because the debate was held on On the Record, regularly scheduled public affairs and news program, Mr. Fishman's exclusion was an exercise of journalistic and editorial discretion and the Commission "lack[ed] subject matter jurisdiction and [was] barred from investigating the subject matter of the complaint." 

Notably, the Republican Commissioners statement also argued that this action was part of what they called a "troubling trend" in which the Commission has inconsistently applied this exemption in favor of Democrat-leaning news coverage. They suggested that this alleged inconsistency was consistent with their fear that "[g]overnment officials cannot be trusted to regulate journalists fairly and without bias." 

Meeting Schedule

 

The Commission is not scheduled to meet again until 10:00 a.m. on January 16, 2014, agenda documents for this meetings have not yet been made public.

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