Does Fox News coverage = GOP campaign contribution?

››› ››› ERIC BOEHLERT

What Fox News is doing today goes so far beyond broadcasting an editorial voice, skating so close to GOP campaign management, that it should no longer enjoy an FEC media exemption. Fox News ought to be regulated.

With its open and aggressive cheerleading -- not to mention on-air fundraising -- for Massachusetts Republican Scott Brown last week, Fox News crossed yet another threshold in its unabashed transformation into a purely political entity. Now completely turning its back on producing any semblance of independent journalism, Fox News eagerly flaunts its role as GOP kingmaker.

That relentlessly partisan approach continues to raise fundamental questions about what role Fox News plays in our political culture and, thanks to its shameless GOP boosterism, whether the cable channel and its programming should fall under the jurisdiction of the Federal Election Commission. Meaning, does Fox News' gung-ho GOP campaign coverage double as a contribution to the Republican Party, a contribution that should be regulated?

The Commission defines "contribution" to include any gift of money or "anything of value" made for the express purpose of influencing a federal election. A key Commission exemption for decades, though, has been granted to the news media, since they have been seen as "neutral" and not controlled by political interests. Therefore their editorial product could not be considered a "contribution" or "expenditure" to any campaign.

The exemption was created, in the words of the Commission, to ensure "the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns," which makes perfect sense, since there's nothing wrong with newspapers endorsing candidates or columnists berating incumbents. The exception has allowed journalists (and more recently bloggers) to report and pontificate about campaigns without having to worry about federal finance laws and whether their editorial efforts cross the line into candidate contributions.

That approach worked well because for decades there has been both a spoken and unspoken understanding among professional journalists as to what kind of guidelines and standards ought to be upheld in the pursuit of the news. That was especially true of cable and network news broadcasters, who wield so much influence in our TV-centric culture.

As former Federal Communications Commission chairman Reed Hundt once wrote:

Part of this tradition is that broadcasters do not show propaganda for any candidate, no matter how much a station owner may personally favor one or dislike the other. Broadcasters understand that they have a special and conditional role in public discourse... Virtually all broadcasters understand and honor it.

But as we've been stressing for the past year, the radically transformed Fox News no longer plays by any discernable rules. I mean, allowing one candidate, on the eve of a special election, to repeatedly raise funds on the air? That's unthinkable in any other newsroom in America. Yet that's the platform Fox News opened to Scott Brown in his quest to defeat Martha Coakley in Massachusetts last week. That is, when Fox News wasn't regularly smearing Coakley.

So the question must now be raised: Is Fox News' relentlessly one-sided coverage the equivalent of a massive campaign contribution to the GOP? And based on some recent regulatory language used by the FEC, the answer might just be "yes."

This type of issue has been raised in the past. For instance, in 2004, the National Republican Congressional Committee filed a complaint with the FEC accusing two co-hosts at Los Angeles' KFI-AM of "criminal behavior," claiming they were attacking Republican Congressman David Dreier while endorsing his Democratic opponent.

Following that same 2004 campaign season, the conservative Center for Individual Freedom filed a complaint with the FEC, claiming that CBS's controversial report on President Bush's service in the Texas Air National Guard (i.e. Memogate) constituted an "illegal expenditure" on CBS's part to Sen. John Kerry's campaign because the network knowingly aired a false broadcast intended to curtail Bush's re-election bid.

The Commission swatted those complaints away because for decades it has given a wide berth to who qualifies for the media exemption, specifically allowing outlets to remain eligible "without regard to whether programming is biased or balanced," insisting that approach falls within "legitimate press function."

Frankly, I think most people -- and certainly most journalists -- would prefer to keep federal authorities out of newsrooms. They'd prefer not to have the government involved in making editorial judgments in terms of who's a journalist and who is not. (One of the beauties of journalism has always been that no higher authority makes that call.) And honestly, prior to Fox News' relentless, and unapologetic, partisan campaign on behalf of Scott Brown, I had always sort of shrugged off the suggestion that any form of biased news coverage or punditocracy doubled as a "contribution" or should be regulated by the government.

And I certainly didn't think much when conservative writers last year raised the dark specter of the Obama administration unleashing the FEC on Fox News, and alleged that that's why the White House criticized Murdoch's channel and labeled it illegitimate -- so the FEC could swoop in to "stifle speech" the government doesn't like. (I don't see any evidence that that's the case.)

But now I'm having second thoughts, simply because of how dramatically Fox News has ramped up its obvious pro-GOP campaign coverage just within the last couple of months. Recall that in November, Fox News pushed a handful of Republican and conservative candidates in New Jersey, Virginia, and New York. The openly one-sided coverage, in which Fox News hosts and analysts urged viewers to donate, volunteer, and vote for the featured candidates, ran counter to every conceivable journalism doctrine. (Surprise!)

Honestly, the November coverage paled in comparison to last week's Fox News GOP orgy, where the cable outlet pushed Brown's candidacy incessantly -- as well as exclusively -- and then celebrated his win just as fanatically.

If Fox News made such a huge leap between last November and this January, imagine what Fox News' programming will look like this coming autumn, when the entire House of Representatives is up for re-election, as is one-third of the Senate. In other words, the Brown production was merely a (tame?) preview of what's to come. Fox News obviously liked what it saw with the Brown victory, and if it's not already collectively drunk with kingmaking power, it will soon become completely inebriated, and its relentless pro-Brown campaign will likely look reserved come November. And the "contributions" will be almost too many to count.

Which brings us back to the point Media Matters has been stressing for months, and which the serious media elites have been slow to acknowledge: Fox News is the Opposition Party. Period. And that's why Fox News ought to no longer qualify for the FEC's media exemption. That's why Fox News' cheerleading-on-steroids for Republican candidates obliterates all previous guidelines set by the Commission.

Note that in March 2006, the FEC moved to include bloggers, and others doing online activism, to be part of the established media exemption. Even though individual blog sites might be uniformly partisan, that didn't mean their content represented an expenditure to the bloggers' favorite candidates or political party. The FEC used its standard criteria and ruled that because blogs were "neutral," meaning they were not controlled or owned by a political entity, they shouldn't be subject to federal campaign finance regulation.

So, because Fox News is "neutral" and is not owned by a political entity (although you could certainly argue it's controlled by the GOP), then it has free reign in terms of the media exemption, and is free to transform itself into GOP Central and the FEC shouldn't say boo, right? Case closed, correct?

Not quite.

Let's look at the case of the recent start-up company Melothe Inc., which petitioned the FEC for a press exemption. Melothe described itself as a Web-based TV station that would go inside the campaigns of Democratic candidates and provide Web video and programming that would be of special interest to Democrats and progressives.

But Melothe did not qualify for the exemption, as explained in a November 13, 2008, memorandum, signed by FEC's general counsel. Even though the FEC and the courts have used a very liberal definition of "press entity" for the exemption, the Commission ruled that Melothe did not qualify because it would essentially be indistinguishable from the interests of its chosen candidates.

Sound familiar?

See if the highlighted passages below from the FEC memo remind you of a certain "fair and balanced" cable channel:

Melothe, Inc. proposes to work with the campaigns of only Democratic candidates and, potentially, only one candidate of that party. The commission recognizes that lack of objectivity is news and commentary does not automatically disqualify an entity from coming within the press exemption. ... Here, however, the featured campaign's message would be indistinguishable from that of Melothe, Inc. itself, indicating it would function not as a press entity but a press arm of the candidate's campaign.

More:

Melothe, Inc.'s proposal, however, further indicates that Melothe, Inc. intends to engage in core campaign activities that are not legitimate press functions. Melothe, Inc envisions that program hosts, interviewers and news anchors will regularly solicit contributions, with links to the candidate's contribution page appearing on the screen during programming. ... In these respects Melothe, Inc. would be functioning not as a press entity but as a fundraising arm of its chosen campaign.

The FEC's conclusion:

Here, the Commission finds that the purpose of the venture would be to actively participate in the chosen campaign's activities, to promote the chosen candidate and the campaign's message, and to solicit money and support on behalf of that candidate. This purpose and function cannot be viewed as normal business activity of a press entity.

If you weren't already aware, Fox News pretty much did all those things on behalf of Scott Brown.

The FEC made the correct, sensible decision in 2006 when it extended its media exemption to include bloggers, even though many of them broadcast a proud partisan voice online. There's nothing wrong with a strong editorial voice. What Fox News is doing today, however, goes so far beyond broadcasting an editorial voice, skating so close to GOP campaign management, that it should no longer enjoy the distinction of a media exemption.

Indeed, with its radical transformation into a purely political entity, Fox News has changed the rules governing politics and the press. It's time for the FEC to recognize that, look at Fox News with a fresh set of eyes, and act accordingly.

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