[EL] Fox News Debate Vote

Thu Jun 30 12:22:00 PDT 2016

Boy, this FEC stuff *is* hard.

When I noted the vote was 2-4 against finding "reason to believe," ("RTB") I failed to note that the motion actually went further--according to the publicly available certification, it included a recommendation to enter into pre-RTB conciliation with Fox--i.e., meaning look to negotiate a fine against Fox (the FEC has long used this type of civil plea-bargaining where it believes a violation has occurred, and that a further investigation would yield little new information.

So actually, it probably is fair to say that two FEC Commissioners voted to "punish" Fox News.

And the question is... why did Commissioner Weintraub not agree to dismiss the matter, after the vote to enter into conciliation with Fox failed? As I noted in the post below, her vote on the motion to dismiss with no finding of a violation would strongly suggest that she does agree that such regulation of the press is within the FEC's jurisdiction, and could be subject to penalties, even if she voted as a matter of prosecutorial discretion to dismiss in this case. I wonder what she said at the FEC's discussion when arguing her position?

Essentially, you've got three commissioners who have voted that news organization decisions on what to cover and how are within the FEC's purview and subject to fines under FECA. The fact that one voted to dismiss as prosecutorial discretion under Heckler v. Chaney isn't going to make news folks real comfortable, I don't think.

The vote certification is here: http://eqs.fec.gov/eqsdocsMUR/16044395215.pdf
The general counsel's report recommending an RTB finding and approval of a conciliation agreement, which has gone on-line since my first post, is here: http://eqs.fec.gov/eqsdocsMUR/16044395204.pdf

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 Smith, Brad
Sent: Thursday, June 30, 2016 1:33 PM
To: Daniel Tokaji; law-election at uci.edu
Subject: Re: [EL] Fox News Debate Vote

 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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Posted in campaign finance<http://electionlawblog.org/?cat=10>

--
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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