Challenging the Newspaper Exemption Act
A group of politically savvy citizens in Kentucky have brought complaints against various corporate newspapers in Kentucky for endorsing Paul Patton for governor in 1999. The group, from various counties in Kentucky, began asking whether provisions in Kentucky law exempted corporate newspapers and broadcasters from Kentucky Revised Statutes prohibiting corporate donations to campaigns prior to the 1999 gubenatorial campaign. An opinion was sought from the Kentucky Attorney General's Office over a month before the election. His office refused and said it was already under investigation. An attorney with the Kentucky Registry of Election Finance, a senior researcher with the Legislative Research Commission and several state legislators were also unable to quote an exemption and thought there were none. A request for an advisory opinion from the Kentucky Registry was also filed in hopes of resolving the issue prior to the election.
Nonetheless, several corporate newspapers in Kentucky "expressly" endorsed Paul Patton for Govenor. At least five complaints were lodged with the Kentucky Registry claiming that newspaper endorsements are a thing of value and are contrary to laws prohibiting corporate donations, a law forbidding any contributions within 28 days of the election and of exceeding $1000 limitation imposed on in-kind donations. The complainants claim the endorsement is an in-kind donation because, if reporters talked with the governor or his campaign prior to printing the endorsement, that constitutes co-ordination. Individuals are free to spend unlimited amounts of money as "Independent Expenditures" providing they do not first interview a candidate or his campaign, print and distribute copies of the candidates handbills etc. In the sarcastic words of one complainant, so long as the candidate is not allowed to see and possibly refute or correct what his supporters, who are not volunteers or officers of his campaign, want to say in support of his campaign and the non-affiliated supporters/voters have not talked with the candidate to determine if they really agree with the nuances of the candidates positions. Somehow candidates and voters seem to have lost the right of free association "assembly" to petition the goverment for peaceful change. And is'nt that what campaigns are?
The Kentucky Registry was to complete it's deliberations in late February or early March. However, the complaints apparently had too much legitimacy. Deliberations were put off while a $125,000 legal consultant was hired to work with the legistlature and members of the Kentucky Registry to write a "house cleaning bill", HB750, that would incorporate the verbiage of the Federal Newspaper Exemption Act (2 USC 431 (9)(B)(i)). Complainants spoke eloquently against adoption of the bill before the state legislature. Although House Bill 750 narrowly passed in the house, it was readily defeated in the State Senate. It is an insult to Kentucky voters that the state registry and attorney genreal sought relief from expost facto and unconstitutional legislation.
In 1974, Congress passed the Newspaper Exemption Act 2 USC 431 (9)(B)(i), an ordinary law, that illegally creates two-tier freedom of political speech and the press: Citizens and grassroots organizations are limited (9) (A) The term "expenditure" includes - (i) any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office, and (ii) a written contract, promise, or agreement to make an expenditure. and corporate publishers and broadcasters are unlmited (B) 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; A loophole exists If you can get the editor at the newspaper or a talk show host on the radio to publish or broadcast your political comments for or against an issue or candidate. Then you enjoy the same exemption from campaign finance law as does the "Corporate Free Press". They have become the filters and gatekeepers of free political speech. This reminds me of high-school civics classes that warned of the dangers of state authorized newspapers and communist propaganda. The Newspaper Exemption Act is not what the founding fathers had in mind:
- "USC 431(9)(B)(i) makes a distinction where there is no real difference: the media is extremely powerful by any measure, a "special interest" by any definition, and heavily engaged in the "issue advocacy" and "independent expenditure" realms of political persuasion that most editorial boards find so objectionable when anyone other than a media outlet engages in it. To illustrate the absurdity of this special exemption the media enjoys, I frequently cite as an example the fact that if the RNC bought NBC from GE the FEC would regulate the evening news and, under the McCain-Feingold "reform" bill, Tom Brokaw could not mention a candidate 60 days before an election. This is patently absurd.
Had the Senate debate on the McCain-Feingold bill advanced to the point of amendments, among the first I offered would have been one to delete section 431(9)(B)(i). Whenever the opportunity presents itself in the future, I look forward to doing just that. I believe it would be an enlightening discussion. Indeed, the issue was frequently raised during the floor debates in 1997 and 1998 and helped to crystallize for Senators and the C-SPAN viewing audience that the campaign finance debate is, indeed, a discussion of core constitutional freedom." Excerpt from Mitch McConnell's July 8, 1998 letter to his constituent Richard Lewis.
- Newspapers and broadcasters inherited freedom of speech and the press from the people and not the other way around! When the Constitution was adopted on March 4, 1789 its guarantees applied only to U.S. Citizens "living beings". It was not until 1886, ninety-seven years later that the Supreme Court decreed, without hearing arguments, that "corporations" would henceforth have the same rights as a person.
- The newspapers replies to the complaints, forwarded to the complainants by the registry, claim the protection of the 1st Amendment of the United States Constitution. Obviously they did not read it:
Amendment 1 - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. The only freedom granted by the 1st Amendment is that the US Congress will write no laws abridging the enumerated freedoms! The US Congress has acted illegally!
- State Constitutions and laws guarantee our freedoms
Amendment 10 - Rights of States under Constitution.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
3. Resolved, That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people;" and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states, or to the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; excerpt from the Kentucky Resolutions of 1798 and 1799 [The Original Draft Prepared By Thomas Jefferson (who was at the time Vice-President)]
The freedom listed below has never been amended as it is found in the inviolable section of Kentucky's Bill of Rights:
Bill Of Rights Of The Kentucky Constitution
Fourth: The right of freely communicating their thoughts and opinions.
Section 8: Printing presses shall be free to every person who undertakes to examine the proceedings of the General assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.
- "The fact is Congress can no more dictate how a group of citizens can participate in our democracy than we can limit newspapers, television or radio stations or magazines. By limiting what other groups can say about us as candidates, we are encroaching on their freedoms and increasing the overall impact the press can have on elections. One need only look at the editorial page of the newspaper in my own district to see the complete lack of objectivity one editor can have. Considering the circulation of one newspaper, the broadcast capability of one radio station, the ability of the media to convey a message and impact an election is enormous. Limiting the First Amendment rights of a portion of the population while protecting those of the media is dangerous.
In Congress, we have an obligation to protect our democracy. This is not about headlines and winning the public relations war. It's about the system of government we will leave our children.
Oppose legislation that assaults the Constitution. Oppose Hutchison. Oppose Shays-Meehan." Content of June 25. 1998 letter from Congresswoman Northup to her colleagues and Richard Lewis
Testimony of John M. Riley presented before committee on March 1, 2000
Thank you, Members of the Committee, Chairman, and Co-Chairmen for the opportunity this morning to address you regarding the proposed legislation known as House Bill 750.
My name is John Riley, of Lyndon Kentucky and Mr. Chairman I come before you today because of my deep concerns for issues of importance not only on my own behalf, but also on behalf of all citizens of this great commonwealth.
House Bill 750 addresses many aspects of the process and conduct of our most precious liberties---The privilege and blessing of our being able to vote-- to vote for you and others whom we have confidence and respect to properly advise and govern us, the citizens of Kentucky.
We as citizens must be able to trust our elected leaders and have confidence that you and the other elected representatives take seriously and adhere to the words in which you uttered in the more than century old and important oath of office.
That oath binds you to the anchor of our liberty and freedom, that which is known as the Kentucky Constitution.
The Constitution is the authority that we as citizens give you as our representatives to see that all aspects of those constitutional principles are protected and defended. It is the duty to all citizens to defend our constitution.
When one reviews the contents of House Bill 750 and applies some of the outstanding and prominent principles in the current Kentucky Constitution, there should be grave concern and reason for ponder.
Section 1 of the constitution guarantees certain rights as INHERENT and INALIENABLE, the rights of enjoying and defending our lives and liberties, the right of worship, the right of our safety and happiness, the right of freely communicating our thoughts and opinions, as well as
other precious and inalienable rights.
Section 2 is brief yet crystal clear in saying "absolute and arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority."
Section 3 states: "All men, when they form a social compact, are equal and no grant of exclusive, separate public emoluments [advantages] or privileges shall be made to any man or set of men except in consideration of public services;" it further states "And every grant
of a franchise, privilege or exemption, shall remain subject to revocation, alteration, or amendment.
Section 4 states, "All power is inherent in the PEOPLE, and all free governments are founded on THEIR authority and instituted for their safety and happiness, and the protection of their property.
Section 6 states, "All elections shall be free and equal.
Section 8 states, "Printing presses shall be free to every Person who undertakes to examine the proceedings of the General Assembly or any branch of government, and NO LAW shall ever be made to restrain the right thereof. Every PERSON may freely and fully speak, write and print
on any subject, being responsible for the abuse of that liberty."
These are all sound and solidly grounded constitutional principles that are clear and explicit in their language and direction.
No proposed law or legislation before this committee which is contrary to these and other constitutional principles should ever be given serious thought or consideration.
House Bill 750 contains language which is in direct conflict with our constitutional principles.
The framers of our constitution went further. Other important sections are very specific and explicit in their direction and intent.
Section 28 for example - "No person or collection of persons, being of one of those departments (legislative, executive or judicial) shall exercise any power properly belonging to either of the others, except in the instances herein expressly directed or permitted." House Bill 750 contains language which rests sole enforcement power with the Registry of Election Finance and is in conflict with Section 28 of the constitution.
Five score and ten years ago during the constitutional convention which led to our present 1891 Kentucky Constitution, according to Informational Bulletin No. 137 (revised) December 1994 , it is interesting to note on page 20:
"Politically, two forces were struggling for control of public policy. The large corporations, particularly the railroad interests, sought every possible advantage..."
"The voters generally believed that big business was taking control of their government. This sentiment was not peculiar to Kentucky and was, in fact, responsible for pressuring Congress to enact the Interstate Commerce and the Sherman Anti-Trust Acts."
"Most of the delegates believed that the most important responsibility before them was to limit the nearly unrestrained power of the legislative branch and impose checks upon it that would benefit the citizenship. The delegates were also determined to put shackles on the influence of railroads and other large corporations." Emphasis added.
Thus, section 150 of the 1891 Kentucky Constitution states:
"Every person shall be disqualified from holding any office of trust or profit for the term for which he shall have been elected who shall be convicted of having given, or consented to the giving, offer or promise of any money or other thing of value, to procure his election, or to influence the vote of any voter at such election; and if any corporation shall, directly or indirectly, offer, promise or give, or shall authorize, directly or indirectly, any person to offer, promise or give any money or any thing of value to influence the result of any election in this State, or the vote of any voter authorized to vote therein, or who shall afterward reimburse or compensate, in any manner whatever, any person who shall have offered, promised or given any money or other thing of value to influence the result of any election or the vote of any such voter, such corporation, if organized under the laws of this Commonwealth, shall, on conviction thereof, forfeit its charter and all rights, privileges and immunities thereunder; ....." Emphasis added.
Certain newspapers, incorporated in the state of Kentucky, have somehow over time claimed rights superior to the rights of individuals and ordinary citizens who are eligible and registered to vote.
Under current election law in the state of Kentucky (KRS 121 and 121A) specifically KRS 121.150(24) states:
"No slate of candidates shall accept any contribution during the twenty-eight (28) days immediately preceding a primary or regular election except as provided in KRS121A.030(5)."
However, within the same 28 day period, certain newspapers in this state have repeatedly and deliberately engaged in the practice of "endorsing" candidates for public office. What they call an "endorsement" is nothing less than a politically motivated advertisement as defined by current law which expressly advocates election or defeat of a candidate. The value of such an "endorsement" is tremendous.
It gains even greater value when the political views and activities of the unendorsed candidates are hidden or ignored by the same newspaper over a period of months leading up to the election.
In-other-words the newspaper can gather information regarding a political contest between candidates and choose to report favorably on candidate "A" while reporting unfavorably or ignoring candidate "B". Thus, it censors the information that the general public receives. The ability to give a biased and unbalanced view of whether a candidate is or is not electable, qualified, or holds popular or unpopular views is an immense power.
Ignorance of this power is inexcusable.
Abuse of power in the election of our public officials was specifically addressed in the writing of our constitution. It was not tolerated then and should not be tolerated now. Our elected and appointed officials are sworn under oath to uphold the Constitution of Kentucky and the laws derived thereunder.
I ask and pray that this committee consider the following:
Section 195 of the 1891 Kentucky Constitution states:
"The Commonwealth, in the exercise of the right of eminent domain, shall have and retain the same powers to take the property and franchises of incorporated companies for public use which it has and retains to take the property of individuals, and the exercise of the police powers of this Commonwealth shall never be abridged nor so construed as to permit corporations to conduct their business in such manner as to infringe upon the equal rights of individuals."
The framers of our constitution were absolute in their language and instruction as to what is not acceptable with regard to the influence of corporations on our electoral process. KRS 121.025 reaffirms the language and states:
"No corporation authorized to do business in this state or in another state, ...., shall contribute, either directly or indirectly, any money, service, or other thing of value towards the nomination or election of any state, county, city or district officer in this state, ...."
During previous elections and specifically the 1999 election the Courier Journal (a Gannett Corporation newspaper) and others engaged in the practice of selectively reporting the news and information about the political views and activities of the various candidates. Thus, a biased view over a period of time was developed of the views, proposals, qualifications, and general campaign activities of the candidates. This bias was deliberate and well planned and continued up to election day.
Their bias also had a major impact on the level of interest in the entire election process. This is evidenced in an article printed in the October 25th 1999 issue of the Courier Journal regarding KET sponsored debates. In that article Donna Moore (Executive Producer of KET Public-Affairs Programming) "said KET decided to have only one forum this year because "there clearly was not a lot of interest" She said that was based on "viewer interest" which the network measured by media coverage of the race."
In fact in another editorial which appeared in the Courier Journal on Wednesday, October 6, 1999 titled "Debatable Fun" the Courier Journal was arguing in favor of a position taken by KET to hold only one (1) debate forum.
They stated that "...one debate is more than enough."
At the same time the Courier Journal will argue that uninhibited and unrestricted political debate should be protected. What they really mean is that they should not be limited or inhibited and should be allowed to continue their self serving dis-service to the voters of Kentucky. They apparently do not see a need to abide by the current laws or the Kentucky Constitution.
This also is evidenced in the language of House Bill 750.
On Sunday October 24th, 1999 the Courier Journal printed and distributed an editorial endorsement that expressly advocated for the election of candidates.
Again on Sunday October 31st and again on Tuesday November 1st (election day) 1999 the Courier Journal printed their "Endorsement Checklist" which they highlight and put a check mark by the names of those candidates they had endorsed. (Another express advocacy advertisement.)
David Hawpe, the editorial director of the Courier Journal, was quoted in a recent article written by Linda Raymond (Courier Journal Sunday, November 7, 1999) regarding editorial endorsements published by his newspaper saying:
"We believe in the ends that we advocate:".... "We believe in the election of the people we endorse. We are, in fact, urging action."
His position appears to imply that the means justify the ends. Nothing could be further from the truth in this case. For one thing, the Courier Journal and Gannett must obey the Kentucky Constitution and the laws that are enacted under the authority of the Constitution.
"We are, in fact, urging action."
The above quote proves that the Courier Journal (Gannett) and their employees are taking themselves out of the news reporting business and placing themselves squarely into the political arena. They have, in fact, become a political entity which is demanding special and superior rights over and above the rights of individual citizens or any other political entity.
The Courier Journal (Gannett) can "make or break" a candidate for public office simply by engaging in biased "news reporting". However, that power is simply not good enough for them. They also want to print and distribute (inkind) election material expressly advocating the election or defeat of a candidate without being accountable to any of the election laws that ordinary citizens or political entities must abide by. They are claiming superior rights!
The Kentucky Constitution, Section 205 states:
"The General Assembly shall, by general laws, provide for the revocation or forfeiture of the charters of all corporations guilty of abuse or misuse of their corporate powers, privileges or franchises, or whenever said corporations become detrimental to the interest and welfare of the commonwealth or its citizens."
The Courier Journal (Gannett) does operate as a corporation in the state of Kentucky. The corporation crossed the line by their biased "news reporting" and then it effectively thumbed its nose at the Kentucky Constitution and Kentucky law when it published editorial endorsements expressly advocating the election of candidates for public office.
Their disdain for our constitutional principles and their disregard for the law is further evidenced by their deafening and deliberate silence on this very subject.
The Courier Journal apparently does not trust the voters of this state to make the proper decisions when they go into the voting booth. Nor do they trust the people to be knowledgeable regarding the Kentucky Constitution and how it applies or does not apply to them.
Instead of reporting the news, providing the candidates the forum to express their views, and educating the public about the issues and arguments that the candidates raised, the Courier Journal chooses to "filter" the news, ignore the issues and arguments raised by unendorsed candidates, ignore the unpopular views by their endorsed candidates and proceed to tell (or influence) the voters who to vote for. Thus, express advocacy for the election or defeat of a candidate. This was done in violation of the laws which were authorized by the Kentucky Constitution.
In other words, they are claiming superior rights over individual citizens.
The Courier Journal argues that it is their "First Amendment" right to do so. However, the Courier Journal is unquestionably wrong. The First Amendment to the United States Constitution reads as follows:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Emphasis added.
"Congress shall make no law...." If no law was to be made then the wording would have been "No law shall be made...." instead the wording is quite clear "Congress shall make no law.." However, the Tenth Amendment states:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Therefore, the power to regulate the private and/or corporate use of the printing press was "reserved to the States respectively".
The framers of the Kentucky Constitution made a very conscious decision to specifically limit the power of corporations with regard to our election of public officers. (Refer to Kentucky Constitution, Section 150 as previously quoted.)
Therefore, I request this committee move to cease any further consideration of this legislation (House Bill 750) and instead move to issue a directive to the Registry of Election Finance. This directive should call for the Registry to conclude the investigation of what they have already accepted and acknowledged as serious and legitimate complaints. It should further direct the Registry to immediately refer these violations to the proper authority for prosecution.
It more than raises my brow and suspicions when those appointed officials that are charged with enforcing and upholding the Kentucky Constitution and subsequent laws thereunder, are actively and publicly supporting legislation to change the laws while delaying the investigation and prosecution of violations of those same laws.
This committee should not and must not be a party to this behavior.
The ethical complexion of any person engaged in suppression or delay of action on the knowledge of violations of law, while advocating the change of those same laws, should be examined with a keen eye.
I request the written text of this presentation and testimony be entered into the public record.
I thank this committee for your interest in my concerns and for your attention. I would be glad to answer any questions and if none I again thank you.
1st and 4th, 1999 be entered into the public record.