Is Air America an Illegal Campaign Committee?

Air America, the liberal talk radio network, recently declared its bankruptcy.  Unremarked upon, however, is the prospect that Air America was merely "circumvention" of the campaign finance laws.  And, if we accept the premises of major campaign finance "reform" organizations, perhaps not even legal circumvention, at that.  As CCP Chairman Brad Smith and SUNY-Binghamton Professor John Lott note in this column in today’s Washington Times, "there is no way that … wealthy Democratic donors could have legally given such large sums directly to Democrats. But Air America provided a vehicle for their multimillion-dollar political campaigns." 

The Federal Election Campaign Act exempts periodicals and broadcast stations from its coverage, but only if they are not owned or controlled by a political party, a candidate, or a political committee.  A "political committee," in turn, is defined as any combination of two or more people that makes $1000 in expenditures, or takes in $1000 in contributions, for the purpose of influencing a federal election.  "Expenditures," under the Act, have long been defined – pursuant to the Supreme Court’s decision in Buckley v. Valeo – as explicit advocacy of the election or defeat of a candidate, using phrases such as "vote for," "vote against," "defeat," "elect" and the like.  There is no doubt that Air America regularly broadcast such exhortations.  But that can’t make it a political committee, can it – or it would also turn CBS, NBC, and every other network and most stations into political committees, thus depriving them of the press exemption. 

This does not end the inquiry, however.  What about contributions?  The FEC now employs an inquiry of questionable constitutionality based on its reading of a Second Circuit Court opinion (something we will have more to say about in the future).  Nonetheless, Air America investors put millions of dollars into the network.  Did they do so for the purpose of influencing federal elections?  Here it gets a bit dicier.  We know what many people affiliated with Air America were thinking.  As Air America talk jock Al Franken put it, ""I’m doing this because I want to use my energies to get Bush unelected."  But why did investors give?  Air America was, at least in theory, a for-profit enterprise.  So if the purpose was to make money – or at least if that was a purpose – can they claim the press exemption?  Or must it be the primary purpose.  What if investors knew they were likely to lose their shirts, but were sold on the investments as a way to defeat George Bush and Republicans?  

Earlier this month, two regulatory advocacy organizations, the Campaign Legal Center and Democracy 21 filed complaints against various non-profit organizations, alleging that they were political committees because they were "operated ”primarily” for the purpose of influencing candidate elections."  But if "primary purpose" is decisive, and Air America’s primary purpose was to elect Democrats (with profit as a secondary motive), then under this theory, Air America would be a political committee, and therefore its broadcasts would not be entitled to the press exemption from campaign finance law.  Given statements such as that of Mr. Franken, quoted above, can we really know Air America’s primary purpose without an investigation by the Federal Election Commission?  As Smith and Lott note, Air America’s business model – including asking listeners to make donations to keep the station on the air – is not your typical for-profit business model.

Mind you, we wouldn’t much care for a result that led the government to shut down future Air Americas.  (And its worth knowing that within a week of Air America declaring bankruptcy, its founders announced plans to launch another liberal talk network).  But campaign finance regulation is reaching a dangerous point.  The arguments presented by the so-called reform organizations have no real stopping point, and the leading pro-regulatory organizations and individuals have been conspicuous in their silence about San Juan County v. No New Gas Tax, the case from Washington state in which talk radio editorials have been held, by lower courts, to be regulated by the state’s campaign finance laws.  (CCP has filed an amicus brief in that case on the side of the radio station and its hosts, which can be found via the link). 

The First Amendment exists for all of us, and if it doesn’t exist for a small businessman who wants to contribute  $10,000 to help his favored candidate get elected, there is no particular reason it should exist for the multi-millionaires who funded Air America.  And eventually, we might point out, there is no reason for it to exist for the lobbyists who run the major "reform" organizations, the political scientists who shill for them, or the big foundations that provide their funding.