It seems Mr. Mayberry is the owner, editor and publisher of a couple of periodicals in Arkansas, where he is running for Congress. He asked the FEC whether he could continue to report news and continuing running his signed editorial columns that may include support for his candidacy.
After a lengthy discussion of the law regarding public communications and coordinated expenditures, the FEC concluded:
...opinion columns in the Periodicals containing a byline with your name and photograph... would meet the "120 Day public communication" content standard. Conversely, opinion columns in the Periodicals that do not bear a byline with your name or photograph and do no contain any other reference to a clearly identified Federal Candidate or to a political party would not meet this content standard.
Essentially, what the FEC is saying is that because Mayberry owns and controls the publications, he cannot use those facilities to promote his candidacy because doing so would be equivalent to a corporate contribution by the newspaper company. But this opinion raises more questions than it answers for the public at large.
First, on a business strucutre level, what if the publishing company was not incorporated as it is in this case? What if Mayberry owned the publishing company as an unincorporated sole proprietorship or even a partnership. Under current law, any candidate for office may use as much of his personal resources on his candidacy as he chooses. If he owns the publishing company and it is not a corporation, would Mayberry be able to publish his opinion columns? By definition this would not be a corporate contribution.
Further on these lines, the law does not provide a media exemption to any publication that is owned or controlled by a political party, committee or candidate. Traditionally, the control test referred to ownership type matters. Thus a shareholder with 50.1% of the voting stock would have control even through there may be many other owners, but those other owners do not have control. So what if Mayberry were a minority shareholder in a corporation or simply an employee with editorial control? Would he still be prohibited from publishing his columns in support of his candidacy? This advisory opinion seems to implicity make that point.
When first reading this opinoin, I came away with the thought, what if Mayberry just didn't sign his name or used a pseudonym (Publius comes to mind), would his editorials then be permitted? But it would seem that he still couldn't mention his candidacy because they would still mention a clearly identified candidate for Federal office. But that left me with a particularly bitter taste in my mouth.
Here is a gentleman attempting to be elected to Congress prohibited from using his employment to achieve those means. If Mayberry signed his name, people would be clearly able to understand his motivations. But if it is anonymous, then the public assumption would be that the editors/publishers wrote the editorial. To find out who they are, one need only turn the page to the masthead to find out who the editor/publisher is. Thus Mayberry can't put his name on a commentary, but if it is anonymous his name appears somewhere else.
Finally, what makes Mayberry's plan to use his publication to promote his candidacy any different than the New York Times, Washington Post or any other newspaper and magazine in the country who make endorsements for candidates? Mayberry would be endorsing his candidacy, and I might add, being much more upfront about it. But the mainstream media routine promotes, attackes, supports or opposes candidacies all the time. Why are their efforts not considered a corporate contribution and Mayberry's activities are?
This advisory opinion results in a bizzre treatment of a candidate when the activities he is proposing would much more clearly aligned with his interest. But the same activities undertaken by another media organziation, whose motives are not necessarily as clear, receive an exemption.
The disparate treatment makes no sense and this advisory opinion makes no sense.
Parked in the OTB Traffic Jam
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