Express Advocacy and the 24-Hour Media

September 20, 2010

When does a television network endorsing a candidate go over the line? According to the Democratic Governors Association (DGA), Fox News stepped over that line in late August when John Kasich, Ohio Republican gubernatorial candidate, asked for contributions to his campaign. During his interview, the network showed the link to the candidate’s website below his name (see the video here).

The DGA filed a complaint on September 2 with the Ohio Elections Commission, alleging that Fox made a contribution in the name of an unincorporated business (Ohio Rev. Code §§ 3517.10(I)(5)) and did not identify the source of the political communication (3517.20(A)(2) and (B)(1)).

In laymen’s terms, Democrats are angry that Kasich received free political advertising on a TV network. Their complaint raises an interesting point: What counts as free political advertising? According to the DGA’s complaint, the link Fox provided of Kasich’s website makes the 1 minute and 30 seconds Kasich was on The O’Reilly Factor a political ad. Giving it the title of a political ad attaches certain responsibilities, including a prohibition on “donating” free political advertising, and adding a “paid for by” disclaimer.

This complaint feels specious. After all, other opinion shows found on both Fox and MSNBC — such as Countdown with Keith Obermann, Glenn Beck, Hannity, and Rachel Maddow — frequently go over this “line” when interviewing candidates they clearly support. Political ads and websites are frequently shown on these programs, if only to mock them.

DGA argues, however, that Fox is the only station that has violated these laws.  DGA’s Executive Director, Nathan Daschle, stated that before filing the complaint, DGA talked to other networks and they said that “they have policies against putting up campaign websites like Fox did.” The DGA emphasized that “people don’t take it as far as Fox does: [this is part of a] pattern of activities Fox has taken to elect Republicans.”

The main issue behind this complaint is whether the showing of the website link constitutes “express advocacy,” as defined by the U.S. Supreme Court in Buckley v. Valeo. In Buckley, the Court stated that “express advocacy” was shown through “communications that expressly advocate the election or defeat of a clearly identified candidate,” as opposed to “issue advocacy,” where a candidate is mentioned only in reference to a particular issue.

The importance of this distinction is that express advocacy, a.k.a. specific candidate advocacy can be regulated under federal law. In Buckley, the Supreme Court listed examples of words that constitute express advocacy, including “vote for,” “elect,” “defeat,” “support,” “vote against,” “reject,” “Smith for Congress” and “cast your ballot for.” None of those words were present on Fox, either in written or oral form. In West Virginians for Life, Inc. v. Smith — a U.S. District Court Case from the Southern District of West Virginia — the Court held that scorecards, voter guides, or other analysis of a candidate’s positions or votes that is published or distributed within 60 days of an election do not work towards “the purpose of advocating or opposing the nomination, election or defeat of a candidate,” which would be illegal under West Virginia law.

It is possible, and perhaps likely, that the reasoning in West Virginians for Life could be extended to include showing a candidate’s website. After all, their website is essentially a “voter guide,” highlighting a candidate’s position on issues, and, incidentally, providing a method of raising money for the candidate on the internet.

As long as opinion shows such as The O’Reilly Factor don’t purport themselves to be unbiased, I appreciate being able to avoid the “dance around the candidate” party. It seems silly to allow TV show hosts to invite on air whatever candidates they support, to make fun of any candidate they don’t support, to show campaign ads that make them angry or amused, to insult candidates or a particular political party, but not allow them to show a candidate’s website on the bottom of the screen.

If one examines the DGA complaint, it seems to state that all “express advocacy” should be banned. However, this statute simply states that express advocacy is, in short “a communication that contains express words advocating the election or defeat of a candidate.” Using that definition, all of the actions listed above that routinely occur on television could be defined as “express advocacy.”

If the Kasich interview had aired during a news briefing instead of an opinion show, maybe I would be upset. Perhaps if it had occurred on, for example, Fox Report with Shepard Smith, the complaint would be legitimate. But not O’Reilly. Honestly, I think there are better things for Democrats to focus their energy on right now.

Amelia Vance is a student at William and Mary School of Law and an editor at Stateofelections.com.

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