CNN Response to Libertarian FEC Complaint Does Not Refute Basis of the Alleged Violation; Libertarian Dikeman Expects the largest ever FEC Complaint Against CNN and Beto for Texas to Go Nowhere
CNN’s SVP of Legal provided a response to our letter asking them to remedy the CNN/O’Rourke McAllen event that is the subject of our FEC complaint. In our complaint, we allege and recite facts and provide evidence that i) CNN has in this unique situation deviated in a step-out from its normal practice of coverage, and ii) without a second candidate in the debate, cannot qualify as a staged multi-candidate event, leaving its event as a prohibited corporate campaign contribution under FECA. CNN’s letter does not refute either of these two facts, instead citing an unrelated 2009 FEC case with different facts and appears to misquote the facts of that case in their response. Beto for Texas has not responded.
More recently than 2009, Libertarian National Committee has successfully pursued this same strategy in several prior instances, wherein debate hosts reversed themselves and invited the Libertarian candidate to participate, and that in those cases where the host goes ahead and has the debate, despite being notified that it violates the law, the LNC has pursued legal action. We believe the facts in this particular instance are unique, unprecedented and compelling.
To date no CNN journalist has seen fit to return our tweets, calls or emails on any topic. CNN has not covered, and the attached from their SVP - Legal is the sole contact or mention, CNN has ever had with our campaign, despite coverage from the other major networks.
Why Libertarian Dikeman Expects Material Campaign Finance Complaint Against CNN and Beto for Texas to Go Nowhere
And why we filed it anyway. And why you should care.
At this time there are currently four Commissioners seated at the Federal Election Commission when there should be six. There are two Republicans, one Democrat, one Independent and two vacant seats. These existing vacancies are part and parcel of the recurring and troubling pattern of partisan failure of the Executive Branch and US Senate to make and confirm appointments.
"Commissioners are appointed by the President and confirmed by the Senate. By law, no more than three Commissioners can represent the same political party, and at least four votes are required for any official Commission action. This structure was created to encourage nonpartisan decisions." - FEC.gov
Enforcement action based our complaint, given the current number of Commissioners, would at this time require a unanimous vote of the Commission. "Erin Chlopak, senior legal counsel of campaign finance for the Campaign Legal Center, said the lack of members on the FEC makes it hard to see how this complaint can go through. The FEC is normally made up of six commissioners, with no more than three from either political party. However, the commission only has four members, with two seats open. "You would need a unanimous vote right now," Chlopak said. "This doesn't strike me as something that would make it past the first stage." - Dallas Morning News
We were made aware of this likely outcome by Oliver Hall, Special Counsel for the Libertarian National Committee, who has advised us. We were also made aware that the only recourse if we chose to, is appeal in the Federal District Court in Washington, DC, and that must wait until the FEC makes a determination, which given the normal timeline we understand the FEC is likely to make well after the election.
Do we believe our complaint has merit? Of course we do. Do we believe the act of raising a compliant is somehow un-Libertarian, effectively asking the Federal government to enforce what some view as a free speech issue? Whether this question creates a Libertarian paradox or not, the rules are for everyone and no one should be above the law. Do we believe that organizations like CNN should play by the same rules that Dallas Morning News, KSEN5 and others do? No question. When Republican Ted Cruz pulled out of the second planned debate with Democrat Beto O’Rourke in Houston, the hosts chose to cancel the debate. Inviting Libertarian Neal Dikeman instead of Republican Ted Cruz would have been an alternative solution but that wasn’t the decision made. While disappointed that Dikeman was not invited, we raised no complaint because there appeared to be no egregious flaunting of existing law. Are we concerned that the decision-making capability of the Federal Election Commission may be currently hamstrung through no fault of their own? FEC enforcement action based on our complaint would right now potentially impact a marquee Democratic candidate right before an election, with each Commissioner having an effective veto because of the vacancies.
Below is a summary of the current situation.
Neal Dikeman for Senate raised a complaint to the FEC that a CNN-sponsored debate / town hall planned in McAllen, TX on October 18 would be a prohibited campaign contribution by a corporation. The critical issues in our complaint are i) corporations cannot make political contributions under FECA, and news organizations ii) can host debates but such debates are required to include at least two candidates and meet other tests, or iii) the news coverage “is part of a general pattern of campaign-related news account that give reasonably equal coverage to all opposing candidates in the circulation or listening area”.
Given CNN’s McAllen event is now for a single Senate candidate it no longer qualifies as a staged multi-candidate debate, and the highly unique level of coverage and format of this promoted, hour-long prime time national town hall, significantly deviates in a step-out from its normal patterns of coverage, and features a single candidate.
CNN has not directly contested our concern that this a step-out from normal practice, the core of our complaint, and has tacitly admitted it cannot qualify as a debate, and instead tries to assert that we are not relevant to be included. Unfortunately for CNN, our lack of inclusion was not the basis of our complaint, as it appeared to be in the case they cite, the step-out is. Our inclusion is simply one of several possible remedies we suggested they consider.
As we stated when we filed the complaint, Money should not drive politics. Corporations should not fund politicians. In an age where every candidate and party complains of media bias, and trust in our news institutions continues to erode, where does the news stop and politics begin?