As I replied to Keith privately this morning, the question seems to
invoke two bodies of law, federal campaign finance laws administered by
the FEC and federal communication law administered by the FCC. I don't
think the activity described violates provisions of either body of law.
Federal campaign finance law contains an exemption for "news, editorial,
or commentary" distributed by a bona fide media entity (so long as it's
not owned or controlled by a candidate or political committee). This
so-called media-exemption has been interpreted by the FEC to exempt from
coverage of campaign finance laws even explicit endorsements for
specific candidates. Indeed, endorsements are common practice in the
newspaper industry. A local TV station broadcast of poll results-even
bad poll results-would likely fall within this "media exemption." For
more information, see pg. 44 of our "Campaign Finance Guide" here:
http://www.campaignlegalcenter.org/attachments/1223.pdf.
With regard to communication law, the first legal doctrine that springs
to mind is the "equal opportunity" doctrine . . . but it only applies
when a broadcaster allows a candidate to use its facilities. "Facility
use" includes any identifiable positive showing by voice, likeness or
physical appearance of or by a candidate on any programming carried by
that media outlet. The mere mention of a candidate's name and polling
numbers wouldn't seem to trigger the "equal opportunity" doctrine. For
more information, see our "Campaign Media Guide" here:
http://www.campaignlegalcenter.org/attachments/1121.pdf.
PSR
__________________________________________
Paul Seamus Ryan
FEC Program Director & Associate Legal Counsel
The Campaign Legal Center
1640 Rhode Island Ave., NW, Ste. 650
Washington, DC 20036
Office Phone: (202) 736-2200 ext. 13
Mobile Phone: (202) 262-7315
Fax: (202) 736-2222
Web site: www.campaignlegalcenter.org
CLC Blog: www.clcblog.org
__________________________________________
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-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Volokh,
Eugene
Sent: Thursday, June 08, 2006 2:40 PM
To: election-law@majordomo.lls.edu
Subject: RE: Query: Rules Governing TV Surveys
How is this a campaign contribution rather than an independent
expenditure, unless the poll was coordinated with one of the campaigns
(unlikely, given that the initial inquiry said the poll was conducted by
a local TV station)?
I have to say that it seems pretty outrageous to me that the law
could ban "unfair" polls, or decide which candidates are "quality" and
must be included and which are not "quality" and may be excluded; that
seems like a quintessential judgment call for speakers to make. That's
even so given the looser standards applicable to broadcasters, it seems
to me.
Eugene
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
richard@shepardlawoffice.com
Sent: Thursday, June 08, 2006 10:10 AM
To: rkgaddie@ou.edu; election-law@majordomo.lls.edu
Subject: RE: Query: Rules Governing TV Surveys
I think the poll may represent an over limit campaign
contribution to candidates "a" and "b", particularly if the
TV station broadcasts the results as a verity.
Richard Shepard, Attorney at Law
Shepard Law Office, Inc.
818 S. Yakima Ave., #200
Tacoma, WA 98405
253-383-2235
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu]On Behalf Of
rkgaddie@ou.edu
Sent: Thursday, June 08, 2006 5:18 AM
To: election-law@majordomo.lls.edu
Subject: Query: Rules Governing TV Surveys
I had an inquiry from a political campaign regarding the
rules governing the conduct of surveys and the broadcast of
results. One of our local television affiliates contracted
SurveyUSA to perform a poll of potential voters for a primary
in an open congressional seat. There are six candidates for
the seat, including five "quality" candidates. However,
SUSA, in conducting the robocall survey, presented
respondents with three options:
(1) candidate "a"
(2) candidate "b"
(3) "others".
79% of respondents picked either "1" or "2". Now, the
problem is that internal polling for multiple campaigns
(using better pollsters tha SUSA) show a much tighter race
and a more even spread of the vote. One candidate has lawyer
telling her/him that this poll, by not presenting all
legitimate alternatives and then being broadcast, constitutes
a legal violation by the station. Bad polls are not illegal,
and this is a bad poll, but is there a legal issue here?
_____________________________
Ronald Keith Gaddie
Professor of Political Science
The University of Oklahoma
455 West Lindsey Street, Room 222
Norman, OK 73019-2001
Phone 405-325-4989
Fax 405-325-0718
E-mail: rkgaddie@ou.edu
http://faculty-staff.ou.edu/G/Ronald.K.Gaddie-1