Democratic presidential hopeful Sen. John Kerry last week sent a letter to Federal Election Commission Chairman Ellen Weintraub urging her to prevent what he characterized as the National Rifle Association's attempt to "hijack the airwaves and use their special-interest millions to fund a steady stream of NRA-TV."
Kerry was responding to the news that the NRA is looking into buying a TV or radio station. In an interview with AP, NRA Executive Vice President Wayne LaPierre said the organization was looking to get a media exemption from campaign-finance-spending limits, which were upheld last week by the Supreme Court. "We're looking at bringing a court case that we're as legitimate a media outlet as Disney or Viacom or Time Warner," he said.
Since there is currently no petition for an advisory opinion from the NRA or complaint against it, there is no immediate action the FEC could take, said a commission source. Weintraub had yet to receive the letter at press time, although it had been posted on the Kerry campaign Web site.
The spending limits prevent the NRA and other corporately funded groups from buying ads endorsing, opposing or otherwise targeting specific candidates in the 30 days before a primary and 60 days before a general election. The media exemption makes an exception for "any cost incurred in covering or carrying a news story, commentary or editorial" on a broadcast, cable or print outlet.
NRA Public Affairs Director Andrew Arulanandam confirmed that the association was considering the purchase of a media outlet and seeking the exemption and that it was leaving a number of options open, which could include buying more than one radio or TV station and programming it with the association's views. "We don't want to be censored and shut down during the most critical periods before an election," he said.
Arulanandam said NRA's legal department is mulling the question of whether the exemption would allow it to air only news and commentary on an outlet it owned or would allow it to buy time on other media to air its views during the election run-up blackout period.
FEC spokesman Ian Stinton said he does not believe that the exemption would extend to such ads. In addition to filing a suit, NRA could seek the advisory opinion—which it has not—or conclude that it is exempt and act on that assumption, "and, if someone complained, the commissioners would then have to look at it and decide whether or not to take enforcement action," he said.
Kerry, a war veteran and longtime gun-control advocate, left no doubt where he stands on an NRA media exemption in any form. "There is nothing more disturbing than imagining a democracy where the media becomes a wholly owned subsidiary of the NRA's right-wing extremism," Kerry wrote.
If the NRA qualified for the exemption, he said, "instead of following campaign-finance laws like the rest of America, the NRA would be able to take the millions it receives from the gun lobby and broadcast anything it wants for as long it wants-all under the heading of 'news.'"
Said Arulanandam, "This seems like a political stunt to breathe any life into his flailing campaign."
At least one Constitutional scholar believes that NRA ought to be exempt. Yale constitutional law professor Bruce Ackerman told NPR's All Things Considered
last week, "We cannot impose ideological tests on news organizations. There's Pat Robertson, who has a Christian television network. That is his fundamental Constitutional right. It is a core American freedom." He said he believes the exemption should cover news formats, not commercial speech, but said that, so long as it was a news format, "we would be crossing a dramatic line if we refused the National Rifle Association the right to broadcast its messages."
First Amendment attorney Robert Corn-Revere agrees that the exemption appears to apply to what a company airs on its own outlets. "For instance," he said, "I don't think the New York Times Co. could buy time on someone else's network to engage in electioneering communications and then claim that, because they are a media company, none of the rules apply to them." As to whether the NRA should get the exemption, he said, "the law creates the exemption and it doesn't limit who can take advantage of it."
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.