| Subject: news of the day 10/12/04 |
| From: Rick Hasen |
| Date: 10/12/2004, 7:59 AM |
| To: election-law |
Although
the Supreme Court's order list is not yet posted, reliable sources tell
me that the Court's orders today do not address the pending Texas
re-redistricting case or the Ninth Circuit's felon disenfranchisement
case.
See this
report on the OSU forum on this issue. Chris Geidner comments on
the forum here.
Legal Times offers this report
on lawyers lining up for potential post-election challenges.
Yesterday I posted these comments, and I have received a number of angry e-mails from Democratic supporters. I can understand why the supporters are angry---it is indeed highly unusual for a broadcast station to air what is essentially a commentary against one candidate. But that doesn't make it illegal. Federal election law grants an exemption for the media to broadcast bona fide news stories and commentaries, so long as the station is not controlled or owned by a political party or candidate (this provision got Steve Forbes in trouble back in 1996, when his commentaries ran in Forbes magazine while he was running for president).
It also appears that the provisions don't violate federal communications law provisions guaranteeing equal time. See this Los Angeles Times report.
Now, one can argue that being unfair and unbalanced violates the public interest provisions of federal communications law. That may work as a long-run strategy, but it won't keep the documentary off the air. Nor should it. If a liberal-owned television station wished to broadcast Fahrenheit 9/11 in the next few weeks, should that be illegal?
According to press reports, the DNC is planning to file a complaint with the FEC alleging that showing the ad is an illegal in-kind contribution. The media exemption I discussed earlier applies to an independent action; it does not exempt contributions. So if the Democrats could show Sinclair coordination with the Bush campaign or the RNC, there could be a basis for a complaint. But so far I have seen no evidence of coordination.
So what are disaffected Democrats to do? Josh Marshall suggests a
shareholder derivative suit or a
boycott of Sinclair's advertisers. But running to the FEC or FCC is
unlikely to affect policy.
UPDATE: Don't miss Bob Bauer's comments
in which he tries to thread a very thin needle.
This
L.A. Times article chronicles the effects of California's
bipartisan gerrymander on the lack of competitive house elections.
See here.
It includes some interesting figures on post-BRCA fundraising that I
learned from David Magleby's excellent presentation at the USC
conference on Election 2004 held on Friday.
-- Rick Hasen Professor of Law and William M. Rains Fellow Loyola Law School 919 South Albany Street Los Angeles, CA 90015-1211 (213)736-1466 (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlawblog.org