[EL] Fox News Debate Vote

[Smith, Brad]

 Classic inability of the news to get basic FEC stuff right.

No one voted to "punish" Fox News, though 2 commissioners voted to authorize an investigation and a third refused to dismiss as no reason to investigate. Also, the Fox report calls it a "secret" vote, which I suppose is true, but only in the sense that all FEC votes on enforcement matters are taken in closed session, and remain "secret" until publicly released.

Anyway, the tally was released this morning.

First, one of the Democrats moved to find "Reason to Believe" that Fox had violated the law and to open an investigation. (Which is what the Commission's General Counsel recommended.) That failed 2-4, with the 3 Rs and Commish Weintraub (D) voting no.

Commissioner Weintraub then moved to dismiss as a matter of prosecutorial discretion. That failed 1-5, she alone voting in favor.

Then one of the Republicans moved to dismiss with a finding of "No Reason to Believe" the law had been violated. That failed 3-3, with all 3 Democrats voting against the motion to dismiss.

Then they voted 6-0 simply to close the file.

So there you have it. Commissioner Weintraub did vote to dismiss and did vote against finding "reason to believe," but she was not willing to find "no reason to believe." That's not real assuring to those who favor robust freedom for the press, since it indicates a belief by half the Commission that such decisions are subject to regulation and may violate FECA.  No vote got so far as addressing "punishment," though it's long been said that at the FEC, the process is the punishment.


Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Daniel Tokaji [dtokaji at gmail.com]
Sent: Thursday, June 30, 2016 10:38 AM
To: law-election at uci.edu
Subject: [EL] ELB News & Commentary 6/30/16


FEC Split on Vote to “Punish” Fox News?<http://electionlawblog.org/?p=83949>
Posted on June 29, 2016 7:45 pm<http://electionlawblog.org/?p=83949> by Dan Tokaji<http://electionlawblog.org/?author=5>

Fox News<http://www.foxnews.com/politics/2016/06/29/fec-democrats-voted-to-punish-fox-news-over-debate-changes.html>:  “Democratic members of the Federal Election Commission, in a decision to be made public on Thursday, voted last month to punish Fox News over criteria changes for the network’s first Republican presidential primary debate – but were blocked by Republican commissioners.”

Update:  Commissioner Ellen Weintraub emailed the following: “The story is inaccurate. As the record will show when the file goes public tomorrow, I did not vote to punish Fox News in any way. To the contrary, I voted to dismiss the complaint.”

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--
Daniel Tokaji
Charles W. Ebersold & Florence Whitcomb Ebersold Professor of Constitutional Law
The Ohio State University | Moritz College of Law | 614.292.6566
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