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Home / Blogs / Last Blog on Earth
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Friday, Sep 16, 2011 - Last Blog on Earth | News

Labor Council used non-existent law to pressure KUSI

Spokesperson still says someone should investigate CPR campaign's involvement in TV special

By Dave Maass
On Wednesday, lawyers for San Diego County's top labor organization sent a letter to KUSI, demanding that the local TV station attach a political disclosure to its televised news special on a pension-reform ballot initiative. The San Diego and Imperial Counties Labor Council alleged that a failure to do so would violate state, local and federal regulations since KUSI openly advocates for citizens to sign the petition to get the "Comprehensive Pension Reform" measure on the ballot. The letter called the program an "in-kind contribution."

Read the letter.

However, the laws it cited don't seem to exist.

The Labor Council's letter surprised me in two ways. First, there's the First Amendment issue and the right for the press to publish what it wants without hindrance. After all, CityBeat openly supported last year's union-supported sales tax measure, Proposition D, with a "Yes on D" cover design. We also used our cover to encourage North County voters to "flush" San Diego County Supervisor Bill Horn, an enemy of the labor movement, down the toilet. The Labor Council didn't call those in-kind contributions. That's because they're examples of a legitimate function of a free press.

The second thing that shocked me was the Labor Council's legal argument. Just that morning I published a piece that noted that the Federal Communications Commission, which regulates broadcasters, had repealed the rule that would have required equal time or balanced coverage on ballot measures. I cited California media and political law expert Tracy Western, CEO for the Center for Government Studies, who said it was unusual for a TV station to dedicate a program to petition circulation, but there was nothing illegal about it.

So, what gives?

In the letter, the Labor Council writes (emphasis is in the original):
The San Diego Municipal Election Campaign Control Ordinance (S.D.M.C. 27.2901 et seq.) and the California Political Reform Act (the "Act") (Cal. Gov. Code 81000 et seq.) impose numerous disclosure and reporting obligations upon person and entities who engage in activities to support or oppose ballot measures. Under state and local law, a broadcast that supports the qualification of a ballot measure triggers these disclosure and reporting requirements.

So, I looked at the municipal code. Not only does it not contain this provision, it actually includes language that completely contradicts the claim (underlining added): 
Expenditure means a payment, a forgiveness of a loan, a payment of a loan by a third party, or an enforceable promise to make a payment, unless it is clear from the circumstances that it is not made for political purposes. An expenditure is made on the date the payment is made or on the date consideration, if any, is received, whichever is earlier. An expenditure does not include a payment for member communications, nor does it include costs incurred for communications advocating the nomination, election, or defeat of a candidate or the qualification, passage, or defeat of a measure by a federally regulated broadcast outlet or by a regularly published newspaper, magazine, or periodical of general circulation that routinely carries news, articles, or commentary of general interest.

That's pretty clear: It is not a political expenditure when a broadcast station advocates for the qualification of a ballot measure.

The same language is contained in the California Fair Political Practices Commission's regulations [updated]:
[T]he term “contribution” does not include:

8) A payment made by any broadcasting station (including a cable television operator, programmer or producer), website, or a regularly published newspaper, magazine or other periodical of general circulation, including any Internet or electronic publication, that routinely carries news and commentary of general interest, for the cost of covering or carrying a news story, commentary or editorial.

I called Labor Council political director Evan McLaughlin and challenged him to identify the part in the law that justified their letter. He could not cite a law, though he briefly mentioned case law, but would not name a judicial opinion or decision. We had a fairly heated argument that ended with McLaughlin conceding that the law does exempt broadcasters.

"I agree with you that there is an exemption and I agree with you that's what the law says in the municipal code," he said. "What is still in question is whether this was done in advocacy of the campaign or whether it was controlled completely and became an instrument of the campaign."

McLaughlin says that the Labor Council believes there was extraordinary coordination between KUSI and the ballot-measure campaign to the extent that the entire program should be considered a campaign ad. He says he believes the campaign dictates the show's script, and, therefore, the cameras and staff time, by the Labor Council's logic, should be considered a donation to the campaign.

KUSI staff, in both interviews with CityBeat and a journalism expert, maintained that this was an independently generated news program, a form of advocacy journalism that while in support of the measure, sought to present multiples point of views. KUSI's claim is supported by the segment published online in advance of the program. Even McLaughlin's boss, Labor Council CEO Lorena Gonzalez, said of the pre-broadcast news clip on Twitter, "That has to be the most balanced presentation Ive [sic] ever seen on KUSI."

But that clip was not representative of the program over all (watch it here) and McLaughlin says he believes KUSI should be investigated, though the Labor Council needs to review the entire program, which aired last night, before making a decision to proceed with a formal complaint. However, he says, the letter achieved it's goal of publicly challenging KUSI's credibility.

"We just want to have a fair debate," he said.

Here's where I get riled up:

It's perfectly valid to question the relationship between the ballot campaign and KUSI. McLaughlin brought up several valid points regarding the quality of KUSI's journalism. However, there's nothing illegal about doing crappy, biased reporting.

I think it's utter bullshit for anyone to cite a made-up law to pressure a news organization to alter its content. I'm not a fan of KUSI's style of journalism or its political positions, but they're still the press. If the Republican Party sent CityBeat a letter threatening legal action because we were about to endorse a candidate or a measure they opposed, I'd know exactly what to call it.

Media intimidation.

 
 
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