King Makers?: Talk Radio, the Media Exemption, and Its Impact on the Washington Political Landscape

• Publication year: 2009
• Citation: Vol. 33 No. 01

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 33, No. 1FALL 2009

King Makers?: Talk Radio, the Media Exemption, and Its Impact on the Washington Political Landscape

Joshua M. Duffy(fn*)

The First Amendment protects five freedoms [those] of religion, speech, press, assembly and petition. All are precious, but why is the political class so piously careful to exempt the press the journalists who cover the political class from restrictions the political class writes for others? The question answers itself.(fn1)

I. Introduction

Political talk radio is a lucrative and influential business. Rush Limbaugh, the most powerful voice in talk radio(fn2) signed an eight-year contract extension in 2008 for a total value of about $400 million.(fn3) Lim-baugh's weekly listeners number somewhere between 14 and 20 million.(fn4) Limbaugh was so influential in the Republican congressional elections of 1994, in which the Republicans took control of the House of Representatives for the first time in 54 years, that the congressional Republicans made him an honorary member of the freshman class.(fn5)

Limbaugh, and other radio talk show hosts like him throughout the country, exercise their influence in each political season. For instance, in the 2008 presidential primaries, Limbaugh designed a radio campaign to encourage Republicans to vote for Hillary Clinton in an effort to prolong the bitter primary contest between Clinton and Barack Obama.(fn6) Although the effect of Operation Chaos, as Limbaugh named this campaign, was difficult to measure, Senator John Kerry accused Limbaugh of "tampering with the [Indiana] primary" and causing Obama's defeat in the primary.(fn7) Since President Obama's election, Limbaugh has continued to speak both for and against a number of political issues.(fn8) For example, Limbaugh endorsed the President's selection of Hillary Clinton as Secretary of State and called it "a brilliant stroke by Obama."(fn9)

Some have argued that because of its influence upon the electorate and upon particular campaigns, such radio commentary should fall within applicable campaign finance regulations.(fn10) They argue that if this type of commentary is not regulated as a form of campaign contribution or expenditure, media corporations could become king makers, providing their favored candidates and ballot measure advocates with unlimited access to the airwaves.(fn11)

The ability to provide an unlimited and undocumented platform for selected issues or candidates would seem to be contrary to the policies behind campaign finance regulations. Such regulations have admirable goals: reducing the cost of political campaigns; equalizing the ability of lesser-funded candidates to be heard; and reducing the possibilities for corruption and the appearance of corruption.(fn12) In spite of these laudable policies, however, opponents of campaign finance regulations have warned that such laws are subject to abuse and may have the result of chilling or otherwise limiting socially useful and constitutionally protected political speech.(fn13)

It is here, in the conflict between the competing policies of the First Amendment and campaign finance regulations, that the media exemption exists, protecting talk radio from the reach of those regulations.(fn14) As the name suggests, the media exemption, or press exemption, exempts press and media entities from campaign finance regulations on contributions and expenditures.(fn15)

The conflict between the protection of the press and the goals of campaign finance regulations reached a crescendo in Washington State during the 2006 election cycle, culminating with the Washington State Supreme Court 2007 decision in San Juan Island v. No New Gas Tax.(fn16) The Supreme Court held that there is no limit on the extent to which talk radio hosts may advocate or speak against a particular candidate or issue and that their influence is not subject to any campaign finance restrictions.(fn17) However, the Federal Elections Commission (FEC), the Washington State Public Disclosure Commission (PDC), and the United States Supreme Court have each taken positions regarding the application of the media exemption that are seemingly at odds with aspects of the court's ruling.

This Comment argues that despite the holding of the No New Gas Tax court, Washington's version of the media exemption should be narrowed in its application to talk show hosts, allowing it to more fully realize the goals of campaign finance regulations. Although it is difficult to draw a line that balances the competing interests of First Amendment protection and campaign finance regulations, it would be possible to narrow the media exemption so that First Amendment rights are protected, while also better achieving the goals of campaign finance reform. This Comment does not suggest that the individual conduct of a radio talk show host should force the removal of the shield of the media exemption and mandate that the broadcasting station disclose such conduct as an in-kind contribution or expenditure of a political campaign, subject to the same limits and restrictions as other contributions. Rather, this Comment argues that talk show hosts who do not equally present both sides of campaign issues should file a report with the Washington State Public Disclosure Commission showing the duration and value of the air time provided. This approach would protect the purpose of campaign finance disclosures by revealing the equivalent amount of money an opponent would have to spend to buy air time to promote their views or candidacy, while also protecting free speech interests.(fn18)

Part II discusses the legislative history of federal and Washington State campaign finance laws and the media exemption. Part III examines the media exemption and its application by the Federal Elections Commission. Part IV examines Washington State's application of the media exemption. Part V examines the ramifications of the decision in No New Gas Tax on the media exemption and its application to the conduct of radio talk show hosts. Finally, the argument is made that the media exemption could be narrowed to more effectively achieve the policy objectives of campaign finance regulations while preserving the First Amendment protections of the press.

II. Legislative History of Federal and Washington State Campaign Finance Law and the Media Exemption

Section A of this part looks to the history of campaign finance legislation to illustrate how the desire for disclosure of campaign contributions and expenditures and the desire to limit the influence of money shaped the current campaign regulatory system. Section B examines the media exemption in federal and Washington State campaign finance regulations. Finally, Section C examines the manner in which the media exemption spans the gap between the policy objectives of campaign finance regulations and the protections of the First Amendment.

The purpose of this part is not to detail each phase of the evolutionary process of Washington State and federal campaign finance law. Rather, the purpose is to provide a framework through which to better understand how campaign finance legislation has been an attempt to control the influence of money on the political process and why such regulations are considered necessary. As will be seen, these regulations are often seemingly at odds with constitutional protections of speech and the press.(fn19) The regulation of funds to support a political campaign, according to the United States Supreme Court, is the equivalent of regulating speech.(fn20) It is this tension between the policies behind the regulation of campaign finance and the protection of speech and the press that is at the heart of the media exemption.

A. A Brief History of Federal Campaign Finance Legislation

Although modern campaign finance legislation is often considered to have started with the 1971 Federal Election Campaign Act (FECA), campaign finance restrictions have existed in the United States since the nineteenth century.(fn21) The first federal campaign finance legislation was a narrow 1867 law that prohibited federal officers from requesting contributions from Navy Yard workers.(fn22) Prior to 1971, Congress enacted multiple laws that sought broader regulation of federal campaign financing.(fn23) The policies behind these laws included a desire to limit contributions to ensure that certain groups did not have a disproportionate influence on elections, a desire to prohibit certain sources of funds for campaign purposes, a desire to control spending, and a desire to require public disclosure of campaign finances to deter abuse and to educate the electorate.(fn24)

The campaign finance provisions enacted before 1971, however, were largely ineffective at achieving their policy objectives.(fn25) Not only did the provisions fail to provide an adequate administrative framework to ensure compliance, but the provisions also contained a number of specific flaws that allowed campaigns to avoid the intended regulatory effect.(fn26) Congress, reacting to the evasion of the campaign finance and disclosure requirements that had accompanied earlier regulations, passed the more stringent disclosure provisions of the FECA in 1971.(fn27)

The FECA of 1971 initiated fundamental changes in federal campaign finance laws, requiring full disclosure of campaign contributions and expenditures and limiting spending on media...