Radio hosts’ on-air backing must be reported as campaign donation

Thursday, July 7, 2005

OLYMPIA, Wash. — In a decision some critics said could threaten press rights, a Washington state judge ruled last week that two radio hosts’ on-air comments promoting an anti-gas-tax initiative should be considered in-kind campaign contributions.

Thurston County Superior Judge Christopher Wickham on July 1 ordered sponsors of Initiative 912 to report the value of comments by KVI Radio talk-show hosts John Carlson and Kirby Wilbur.

Lawyers for, which is sponsoring the initiative, said the ruling would have a chilling effect on political commentary and editorials in the news media. They said an appeal was possible.

“This is an extremely important ruling that has very significant implications across the country for the First Amendment,” said Mark Lamb, one of two lawyers who represented I-912 sponsors, as quoted by The Olympian.

Executives at KVI and Fisher Broadcasting, its parent company, were aghast at the ruling. They said Carlson and Wilbur were doing only what political commentators and newspaper editorial pages do across America — discussing issues and recommending action.

“Each host is entitled to his own opinion on the issues of the day,” said Dennis Kelly, a top official at Fisher Broadcasting. “We don’t agree with the premise of the ruling. If the judge’s ruling holds, it will have a chilling effect on talk and news shows across America. It was a really unwise ruling.”

Fisher’s vice president and general manager, Rob Dunlop, said that even if the hosts had crossed a line into direct campaign work, a notion he rejected, the station would have no way to quantify the commercial value.

I-912 campaign manager, political consultant Brett Bader, called the ruling “dangerous and unenforceable.” Shortly before close of business on July 1, he complied with the ruling by estimating that the in-kind help was worth $20,000 to the campaign — $10,000 apiece for the two hosts during May. But he made it clear he didn’t accept that even a penny was truly reportable.

Carlson said other commentators and newspapers had urged people to oppose the initiative, but weren’t being expected to report it as an in-kind contribution to the opposition camp.

Carlson also said Wickham’s ruling left several unanswered questions.

“If commentary is equated with a commercial, does this mean that editorial endorsements that give out a campaign address and contact information is now a reportable in-kind donation?” Carlson asked, as reported by The Olympian. “Does it mean that a television commentary that vigorously opposes an initiative has to be reported? … At what point does commentary become a commercial?”

The disclosure challenge was brought by prosecutors from Seattle, Auburn, Kent and San Juan County. The opposition campaign, Keep Washington Rolling, said the I-912 forces had “wantonly ignored the state’s campaign-finance reporting law.”

Mike Vaska, an attorney for the opposition campaign, said Carlson and Wilbur had been key organizers and advocates of the initiative, using their shows to drum up support and donations.

In-kind contributions like that have great value to a campaign and must be reported, Vaska said. The judge agreed, ordering the campaign to report the estimated value of the air time and of other resources that directly promoted the initiative and its financing.

Wickham also ordered I-912 sponsors to fully disclose their donors’ identities.

The initiative campaign had raised about $180,000 by May 30, including about $70,000 via the Internet, but had been unable to nail down every donor’s street address because PayPal or credit card companies don’t allow that disclosure, lawyers told the court.

The campaign has tracked down about 75% of the wayward addresses and has always reported the donors’ e-mail addresses, which should be adequate, said attorney C. Chip Goss.

Public Disclosure Commission Director Vicki Rippie said the commission doesn’t view e-mail as an adequate address for campaign-finance reports.

Wickham acknowledged that online solicitations weren’t possible back when the disclosure requirements were adopted by the voters in 1972. But he said the requirement for street addresses remains — and directed the campaign to comply or forego the contributions.

The campaign said the ruling affects less than $20,000. Bader said the ruling wouldn’t have much impact on the campaign’s finances.

Initiative sponsors must collect about 275,000 signatures by tomorrow in order for I-912 to appear on the November ballot. The measure would let voters decide whether to overturn the Legislature’s decision to boost the state’s gas tax by 9.5 cents over four years.

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