How Fox News Dodged a Complaint of Selectively Promoting GOP Candidates

The FEC investigated the network after an uninvited candidate claimed it was improperly and illegally promoting some politicians.
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The record-setting Fox News Republican presidential debate is sparking a larger conversation about freedom of the press, following an investigation by the Federal Election Commission into whether "last minute" changes to debate eligibility criteria constituted an illegal political contribution.

After more than eight months of deliberation, the FEC found there wasn't enough evidence to prove Fox was guilty of any wrongdoing and its decisions as to which candidates participated in the debate are protected by the First Amendment.

In a statement of reason issued Tuesday, the three Republican commissioners who voted against further investigating the network's actions said this matter forced the FEC "to confront a legal issue it has carefully avoided for 35 years." That issue: how to reconcile the freedom of the press with the commission's regulatory power over debates in light of case law and an FCC determination that hosting debates is news coverage.

"The Commission's debate regulation cannot be used to impose government restrictions on newsroom decisions and to punish, and even censor, American press organizations," states the letter. "Ultimately, Fox News's decision to interview and broadcast 10, or 16, or 17 candidates on one or two debate stages was a wholly legitimate exercise of its editorial and journalistic discretion entitled to the full protection of the press exemption." (Read the full statement here.)

The details of the May 24 vote were posted online Thursday. 

The commission failed to find Fox News Network violated federal code prohibiting corporations from contributing to federal political campaigns. Initially Ann Ravel and Steven Walther voted in favor of the motion, while Lee Goodman, Caroline Hunter, Matthew Petersen and Ellen Weintraub dissented. After some discussion, Weintraub changed her position and the motion failed in a 3-3 vote.

Fox News received a letter in May that there were insufficient votes to find the network violated the act, but was tipped off by Goodman on how commissioners voted before the results were posted. Fox points out that the vote was split along party lines with Republican commissioners voting in the network's favor.

The commission also declined to approve the factual and legal analysis that was recommended in their general counsel's March 30 report, as well as two variations of the analysis with edits made by Goodman's and Wientraub's offices.

The FEC’s general counsel had recommended the commission find reason to believe Fox violated the statutes and enter into “pre-probable cause conciliation” — essentially settlement talks — after finding that Fox “had identified a specific set of candidates that it wanted to include in the second-tier debate, and that it modified its polling criterion to achieve that result.”

The commission ultimately voted unanimously to close the file. 

This all started three days before the debate, when then-candidate Mark Everson submitted a formal complaint to the FEC claiming his exclusion from the event was a result of Fox’s improper candidate promotion.

“It seems that politics, economics, and perhaps even their own cable news poll ratings have trumped best practices and common sense, not to mention FEC regulations,” Everson wrote.

In its reply letter to the FEC, Fox argued that in a field of 130 declared Republican presidential candidates it was obligated to narrow the participants to a manageable number and Everson was a sore loser.

“In order for the debate forum to provide a meaningful opportunity for public discourse, it was indisputably necessary to limit participation,” states the Aug. 20 letter. “Complainant, presumably like each of the other 112 or so candidates who did not qualify, is understandably disappointed that he could not satisfy even the relaxed eligibility criteria affirmatively adopted by Fox News to accommodate a greater number of candidates than originally planned.”

To meet the networks criteria a candidate must have either polled at 1 percent or higher or have been consistently offered to respondents as a choice in major national polls.

Everson claimed the move was to keep candidates Carly Fiorina, George Pataki and Senator Lindsey Graham involved despite low polling numbers and argued if Fox used an online RNC straw poll as criterion the field would have been expanded to 18 and he would have been included.  

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