The fiery Maddow had some company. Mark Everson, a former 2016 Republican presidential candidate, filed a complaint with the Federal Election Commission regarding just how Fox News managed that Aug. 6 session, which was made famous by Donald Trump’s clash with Fox News host Megyn Kelly over his treatment of women. Remember the setup? Given the enormity of the Republican field, Fox News split the candidates into two tranches — a main card and a JV card. To make the lesser debate, Fox News initially set a bar of 1 percent of a certain polling average, though it later changed that threshold to allow “all declared candidates whose names are consistently being offered to respondents in major national polls, as recognized by Fox News.” The adjustment brought more candidates into the fold.
Everson didn’t make the cut. His Aug. 3 complaint claimed violation of two points in federal regulations (11 C.F.R. § 110.13) relating to the production of debates:
b. Debate structure. The structure of debates…is left to the discretion of the staging organizations(s), provided that…the staging organization(s) does not structure the debates to promote or advance one candidate over another.c. Criteria for candidate selection. For all debates, staging organization(s) must use pre-established objective criteria to determine which candidates may participate in a debate.
Claiming that Fox News “plainly failed in its responsibilities to the candidates and ultimately the American public in the design and implementation of the August 6th debate,” Everson asked that the FEC intervene against Fox News and rule that he should be included in the debate. In so complaining, Everson was not exactly seizing the GOP field’s small-government portfolio. The appeal for instant FEC action didn’t prompt instant FEC action.
It prompted eventual FEC inaction. News of the complaint’s fate surfaced last night, via, for example, the Washington Examiner: “Fox targeted by FEC Dems in first-ever vote to punish debate sponsorship.” And this at Fox News itself: “FEC Democrats voted to punish Fox News over debate changes.”
So just what happened here? Based on Everson’s complaint and the factual record, commissioners considered three separate motions on the Everson-Fox News proceeding. The first motion proposed a finding that Fox News had violated the law — a finding that would have resulted in enforcement actions against the network. That motion failed by a 4-2 margin — with FEC commissioners Ann Ravel (a Democrat) and Steven Walther (an independent who caucuses with the commission’s Democrats) in the Fox-News-screwed-up minority. Next came a motion from Democratic Commissioner Ellen Weintraub, which credited Fox News with doing the best it could with an unruly GOP roster. “The field included an unanticipated number of viable candidates with only negligible room to differentiate among reasonable contenders,” argued the motion. “In the face of these difficulties, as Respondent notes, it sought to broaden rather than restrict participation in its debates, an event that was the subject of exceptional public interest. In the proper ordering of its priorities and limited resources, the Commission dismisses this allegation.”
That motion failed by a vote of 5-1.
A third motion followed. This was a broad proposal that would have found no wrongdoing by Fox News as well as affirming that the FEC has no business whatsoever mucking around in debate logistics. It drew a 3-3 stalemate, as Weintraub voted with Ravel and Walther against the three Republicans on the commission. The deadlock means that no action will be taken against Fox News. In a so-called statement of reasons, the three Republican commissioners — Lee Goodman, Matthew Petersen and Caroline Hunter — wrote in part, “This matter raises a broader question: If, as the Federal Communications Commission and a bipartisan majority of the Commission previously concluded, a news organization’s sponsorship of a candidate debate is news coverage, then can the Commission ever lawfully punish a news organization for hosting a candidate debate based only on the Commission’s disagreement with the news organization’s selection of candidates to participate in the debate or the structure of the debate? We think not.”
In explaining her vote against the final motion, Weintraub tells the Erik Wemple Blog: “It was an attempt to state that the regulation was invalid,” says the commissioner, noting that she wasn’t prepared to go that far. “These duly promulgated regulations are designed to ensure fairness in candidate debates and broadcasters are running these debates….People want these debates to be staged on a fair basis. It’s conceivable that somebody could violate these rules…It hasn’t happened yet.”
Speaking of history, the commission in 2002 rejected a complaint against the Boston Globe and WBZ-TV for excluding a candidate from a debate. In that proceeding, the FEC determined that the so-called “media exemption” under the Federal Election Campaign Act (FECA) protected these news organizations. That exemption essentially declares that “any news story, commentary or editorial distributed through the facilities of any broadcasting station” is not an expenditure subject to regulation under the law, unless the media outlet is “owned or controlled by any political party, political committee, or candidate.” Furthermore, the commission found in the Boston Globe-WBZ case that there was “no indication” that the debate organizers hadn’t followed “pre-established, objective criteria” in putting on the event.
The FEC played an historic role in presidential debate history, when it ruled in 1980 that the Nashua Telegraph’s plan to host a primary debate limited to candidates Ronald Reagan and George H.W. Bush would violate regulations. So Reagan’s campaign paid for the event, and the candidate famously reacted when his audio was cut off: “I am paying for this microphone.”
Republican Commissioner Lee Goodman senses a problematic drift in the thinking of the FEC. Back in 2014, he wrote a Wall Street Journal op-ed ripping the commission’s decision in a case involving Boston TV station WCVB, which hosted a 2012 debate between a Democrat and a Republican vying for a congressional seat, and drew a complaint from an excluded candidate. Goodman:
WCVB invoked the First Amendment and the campaign act’s press exemption. When the FEC considered the matter in November 2013, the staff recommended that the agency disregard both. The FEC proceeded to sit in judgment of the news directors’ editorial criteria for choosing the candidates to appear to debate on the station’s Sunday morning program. Ultimately the FEC decided that the editorial criteria were sufficiently objective and thus the station had not made an unlawful corporate contribution. It dismissed the case.
The dismissal, argued Goodman, shouldn’t please anyone who cares about the First Amendment. “A decision to approve implies the power to disapprove,” wrote Goodman.
Approving and disapproving is a job that’s outlined in the commission’s regulations, counters Democratic Commissioner Ann Ravel. In a chat with the Erik Wemple Blog, Ravel defends her vote to find Fox News in violation of those regulations. “There have to be pre-established, objective criteria,” says Ravel. “Changing the standards in the last moment was the subject of a complaint to the commission and we responded to it in our view, in a nonpartisan way, in a way that was consistent with the clear law, so my role in the commission is not to apply constitutional principles because I’m not on the Supreme Court. If I were, I’d be happy to do so. We’re a regulatory agency and our role is to follow the law and apply the law.”
On the topic of Fox News’s alleged missteps vis-a-vis FEC regulations, Ravel cited a finding from the agency’s general counsel: That Fox News “abandoned a firm numerical standard in favor of a less precise measure…only after it had become apparent that the numerical test would exclude certain high-level participants.” Summing up, Ravel said, “In other words, [Fox News] altered its criteria to a pre-chosen set of participants and that’s exactly what our rule is — that there be an objective and clear standard.” Any penalty applied to Fox News would have been small, Ravel notes — perhaps “conciliation” discussions and/or a “de minimis” monetary penalty of $5,000. “It’s important for the public to have faith that the FEC is doing its job and looking at matters fairly,” says Ravel. Stuart Gerson, a member of the firm Epstein Becker & Green who represented Fox News in the proceedings, told the Erik Wemple Blog, “The Democratic-appointed commissioners were behaving in a partisan way.” Though Gerson says he doesn’t “like to see these things challenged in court…I am quite confident that had this been litigated, that the court would not uphold an enforcement decision by the FEC.”
With profits in the neighborhood of $1.5 billion, Fox News fears nothing in four-figure packages. But democracy can’t stomach the threat of even a “de minimis” governmental sanction against a news organization over how it chooses to structure a debate. It should be none of their business. It is, however, the public’s business, as the public proved quite convincingly last summer. Maddow wasn’t the only one to speak up about how Fox News and CNN were managing their debates. Hordes of other journalists did so as well. It was a hot topic on social media. And, of course, marginalized candidates raised hell on this front as well. They squawked about their placement on the stage; they lobbied the news organizations to include them; they tweeted. In concert, all these forces acted with greater force than a handful of appointed commissioners.
That said, the proceedings do carry an important lesson for the cable-news networks — it’s one thing to merely broadcast debates, as the TV networks will do in the fall when the Commission on Presidential Debates handles the organizing. It’s quite another, solemn charge to make cutoff decisions about who does and who does not get onto the stage. Everson tells the Erik Wemple Blog that if he’d been able to get on “that JV stage,” he might have been able to secure some traction on his issues. Though CNN manages to over-hype these moments by serially saying “the stakes have never been higher,” the stakes are, in fact, reasonably high.
Based on Everson’s pronouncements on this affair, it’s hard to say whether he was more frustrated by his exclusion from the debate or the letter that came from the FEC months and months later, part of which read like this:
The Federal Elections Commission has considered the allegations contained in your complaint dated August 3, 2015, but there was an insufficient number of votes to find reason to believe that Fox News Network LLC (“Fox News”) violated the Federal Election Campaign Act of 1971, as amended (“the Act”). There was also an insufficient number of votes to dismiss the complaint pursuant to Heckler v. Chaney, and the Commission was equally divided as to whether to find no reason to believe Fox News violated the Act. Accordingly, on May 24, 2016, the Commission closed its file on the matter.
“Makes no sense at all,” says Everson, who laments the FEC’s timeline on the matter: “It’s too late.”