Access Rights and Write-In Candidates

Recent events in Missouri have brought attention to a little used but important qualification to the rights of candidates for Federal elective office to access broadcasting stations under Section 312(a)(7) of the Communications Act; the requirement that a write-in candidate demonstrate the bona fides of his or her candidacy. In Missouri, Glen Miller, a man with a history leading race hate groups, filed notices with that state's Secretary of State to become a write-in candidate for the U.S. Senate. Based on this act alone, he has demanded that stations across the state carry his spots; spots filled with pure race hatred messages.

Most broadcasters are well schooled in the requirement of mandatory access for Federal candidates and the first reaction of many was that they were required to accept Miller's buys and air the spots. Indeed, even for unpopular messages, including those containing nasty racial and religious slurs, "it is well-settled that Congress has tied broadcasters' hands when it comes to providing candidates with unfettered access to the airwaves." In 1972, the Commission had before it the a challenge by the NAACP advertising by J.B. Stoner, "Chairman of the neo-Nazi National States Rights Party ... a white supremacist candidate ... whose often stated goal is to rid the U.S. of all Blacks and Jews..." Stoner was one of 17 candidates entered in the Democratic primary for U.S. Senator from Georgia. The Commission held that broadcasters could not censor or edit Stoner's ads.

However, there is a key difference between the Stoner case and the Glenn Miller situation. As counsel to the Missouri Broadcasters Association, we have been examining this matter for Missouri broadcasters.

Stoner was an acknowledged candidate on the primary ballot of a major political party and the question of his bona fides as a candidate was not before the Commission. Rather, the challenge was whether a station could censor a candidate's spot. The question of access was not before the Commission. Glenn Miller is claiming to be a write-in candidate and at this time, is not named on any ballot.

Access rights under §312(a)(7) are available only to legally qualified candidates for Federal elective office. With some exceptions not applicable to this situation, FCC rules set out a three-part test for determining whether a person is a legally qualified candidate. Such a candidate is one who:

(1) Has publicly announced his or her intention to run for nomination or office;

(2) Is qualified under the applicable local, State or Federal law to hold the office for which he or she is a candidate; and

(3) Has met the one of the following further qualifications:

1. a. Qualified for a place on the ballot, or
2. b. Publicly committed to seeking election by the write-in method and made a substantial showing that he or she is a bona fide candidate.

As a candidate on the Georgia democratic primary ballot Stoner met alternative (a) of the third prong of the test. In contrast, Glenn Miller, claiming the status of a write-in candidate for U.S. Senate, must make the substantial showing of part (b) of the three-part test, that he is a bona fide candidate and is publicly committed to seeking election.

A substantial showing is demonstrated by substantial activities commonly associated with political campaigning. For statewide office, these activities must have occurred sufficiently across the state to demonstrate a statewide presence.

This is important ? the burden is on the alleged write-in candidate to substantiate the candidacy claim, not the broadcaster. Where the alleged write-in candidate merely furnished conclusions that he had engaged in campaign activities without supplying specific information, the Commission has held that it was reasonable to refuse to sell him time because he had not substantiated his claim that he was a legally qualified candidate at the time of his request. No Missouri broadcasting station has reported that it has received such a submission from Miller.

The Commission has many times stated that it defers to state authorities for the determination of lawful candidacy and candidacy qualifications. The Missouri Broadcasters Association has submitted a request to Missouri Attorney General Chris Koster for an official determination on Glenn Miller's candidacy under Missouri law. The Attorney General's response will better equip Missouri broadcasters to determine whether Miller is a legally qualified candidate for Federal elective office under the second prong of the three part test.

Finally, under the Carter-Mondale case, http://supreme.justia.com/us/453/367/case.html, a question arises whether the campaign for the general election has actually begun, when all other candidates must first be vetted through the primary process, and the Missouri primary is still four months off. Based on filed financial reports at the Federal Election Commission, 11 candidates are still competing in Missouri's primary for the right to be a candidate in the Missouri general election. It is clear, therefore, that the primary is not over and that Missourians do not even yet know who will occupy the field of candidates in the general election, and therefore what will be the actual slate of issues. In Carter-Mondale, the Supreme Court recognized that it was legitimate to question whether it was too early to accept political advertising for a specific election (although it held it was not too early in that case).

The FCC's practice of independently determining -- by examining objective evidence and considering the position of both the candidate and the networks, as well as other factors -- whether a campaign has begun and the obligations imposed by the statute have attached does not improperly involve the FCC in the electoral process or significantly impair broadcasters' editorial discretion. (emphasis added)

Unless Miller demonstrates that he is a bona fide candidate and that the general election campaign has begun, broadcasters do not have to accept his advertising and Section 312 (a)(7) would not apply.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.