Frog-Marching Sean Hannity

Is the FEC going to arrest Sean Hannity? Here's a novel idea. Let's read the law.

It's official. We've now entered the Fox haters' Silly Season. It's not enough for the haters to lie about what airs on Fox News. Now, in a stunning affirmation of the First Amendment, they want to criminalize free speech! And it will come as no surprise to anyone that this attempt at censorship has its origin in the newshounds (another fine product of the Outfoxed gang).

Follow. On September 19, deborah (surprise!) reports what she heard not on Fox News, purportedly the hounds' subject matter, but on Sean Hannity's radio show:
Hannity proclaimed that he wanted to contribute to Pirro's campaign asking her, "What's the maximum I can give?" Then Hannity praising Pirro asked his audience to contribute to Pirro's campaign. Hannity made sure everyone heard her web address and asked Pirro to spell her name for the listeners.

This, of course, set off the kennel-dwellers like a match to gasoline:
  • I don't believe it's an FCC violation but it may very well be an FEC (Federal Election Commission) violation.
  • Sean Hannity just gave Pirro's campaign thousands of dollars worth of illegal corporate contributions by advertising her site's address.
  • I just made an inquiry at the FEC about Hannity and Pirro's little stunt today.
  • Hannity broke the law

No, we're not making these up. Try to count the number of times you've seen or heard a candidate's website given out when he has been interviewed. (Even leaving out all of Larry King's free promotions for Ross Perot!) But this gets better. Fast forward to October 13, when blogger "Radamisto" claims:
I finally got a response: "Dear Mr. J... federal law and Commission regulations prohibit a corporation from making any contribution or expenditure in connection with a federal election (see the Federal Election Campaign Act, or "the Act"- 2 U.S.C. 441b(a). This prohibition includes facilitating the making of a contribution or expenditure through the use of corporate resources or facilities... It would seem possible that using the corporate resources of a commercial radio station to urge that contributions be made to a federal candidate could be considered 'facilitating'."... I looked at the brochure and I think we can go after Hannity, ABC Radio and the local stations.

The kennel erupted over this "news":
  • First Vannity then [Fox], they are Doomed!
  • We should contact as many blogs as possible to turn the heat up.
  • Hannity violating the law: no surprise.
  • Having a friend who just happens to be a notary public I'm filing Monday morning if I can find out where he actually broadcast from.
  • I emailed Media Matters with this new info. Perhaps they will update their site.

And yes, Media Matters does have an article on Hannity's radio comments. Even though they have presumably been given this earth-shattering "new info", they haven't yet made any note of it on their website. But the story has still spread through the internet; even reliable bloggers have cited it.

We thought we'd try something a little different, something that neither the anti-Fox terriers nor "Radamisto" bothered to do. (Not to mention the intern or whoever from the FEC that sent the "it's possible" response.) We looked at the applicable law.

With many federal matters, issues are complex and couched in a labyrinthine crazy-quilt of obscure, vague, and conflicting statutes. Not so here. Thanks to a little item called the First Amendment, lawmakers are usually very careful to avoid anything that infringes unnecessarily on unfettered expression.

You can read the full text of 2 USC 441b, but it boils down to what the FEC email said: no contributions or expenditures by a corporation on behalf of a federal candidate, including the facilitating of such contributions or expenditures.

Now every first-year law student is taught not to overlook what is often the most important portion of any statute: the definitions. How important are definitions? As an example, it's the definitions section of the Identities Act that gives the legal criteria for a CIA agent to be "covert" under the law (assigned overseas within the past five years). If the facts at hand don't fit the definition, you're not covered by the law.

So we decided to check the definitions that apply to this statute. What we found was most interesting, and in no way imprecise:

The term “contribution” includes—
(i) any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office...

So far, so good for the Hannity haters. But...

The term “contribution” does not include—
...any payment made or obligation incurred by a corporation or a labor organization which, under section 441b (b) of this title, would not constitute an expenditure by such corporation or labor organization

So we have to scroll down to 441b (b), where we find:

The term “expenditure” does not include—
(i) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate

So it's not a contribution if it's not an expenditure, and it's not an expenditure if it's a radio broadcast of commentary or opinion. We don't claim any special expertise in corporate law, but you don't have to be a John Roberts to interpret a statute as unambiguous as this one. The First Amendment still lives.

posted: Sun - October 16, 2005 at 12:52 PM       j$p  send