Once More, With Feeling: Campaign Finance Doesn’t Supersede the Constitution

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Here we go again, with another use of campaign finance law to manufacture a controversy at the expense of the First Amendment:

Rhode Island Republican gubernatorial candidate Allan Fung promoted his candidacy on an hourlong radio infomercial that’s hosted by a lobbyist for the trucking industry, and campaign records reviewed by The Associated Press show he failed to report the donation of radio air time.

The failure is likely to have violated campaign finance law, according to the good government group Common Cause.

Fung appeared Aug. 4 on the show “Changing Gears,” which is hosted by Chris Maxwell, a registered lobbyist who is CEO of the industry group the Rhode Island Trucking Association, and Michael Collins, of M&D Transportation, a trucking company. The show airs Saturdays on WPRO-AM, one of Rhode Island’s main news radio stations, but the show opens with a disclaimer that makes clear it is paid programming and not news.

The Associated Press can call this an “infomercial,” but that’s misleading.  This is an alternate business model for radio shows, wherein the host pays for a regular period of time and, if he or she desires, covers that expense with advertising.  Infomercials are just extended advertisements for a product.

Appearing on “Changing Gears” is no less covered by the First Amendment than appearing on a radio show with, say, Dan Yorke and cannot be treated differently just because that the hosts aren’t paid directly by the radio station. Paid radio hosts and journalist are not a privileged class deserving of special treatment when it comes to their speech.

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To amplify the point, here’s one of Fung’s primary opponents, Patricia Morgan on Dan Yorke, appearing with a person a chicken costume in order to mock Fung.

In yesterday’s WPRO debate for the Republican candidates, they actually put Allan Fung’s name on an empty chair with a micorophone, which could easily be construed as negative advertising, criticizing the candidate for not appearing in the debate.  This is all well and good (and, for the record, I agree that Fung should have participated in the debate and should be more readily available, generally).

It is not, however, constitutionally different from the hosts of a paid timeslot having on a candidate as a guest.  If somebody would like to argue that reporting the value of airtime is not a limit or restriction on speech, then it should be applied to all forms of media.

For practical and principled reasons, though, the better solution is to stop attempting to corral people’s free speech.  That will include, in part, giving up our belief that people are too dumb to learn how to assess the credibility of their sources of information.



  • Monique Chartier

    Great breakdown of this situation, Justin. On the bigger issue here, I have come to agree that campaign finance laws have gotten too onerous, to the point of hampering people’s First Amendment rights, under the narrowest, most critical definition, and need to be pruned way back.

    Specific to this situation, I have largely stayed out of the Republican gubernatorial primary so don’t particularly have a dog in this fight. But I need to point something out to those who are up in arms about/questioning Fung’s appearance on this show (especially the AP reporter and the head of Common Cause RI). People, it’s called “earned media”, formerly known as “free press”. Candidates and causes across the spectrum understandably seek it everywhere and constantly and it’s viewed as a coup when the candidate/cause gets some. Asking honestly: are you proposing to clamp down on earned media?

    Another item. “Earned media” is almost always a one-time hit. Contrast with the weekly Thursday visit by RIDOT’s director to WPRO. THAT is, minimally, a recurring infomercial for Raimondo and the terrible toll program – and you could easily make the case that it goes beyond that and qualifies under the campaign finance law as a two year plus UNDECLARED in-kind contribution to the Raimondo re-election campaign. And it may even be completely illegal as it easily exceeds $1,000 in value and involves a corporation.

  • Rhett Hardwick

    “wherein the host pays for a regular period of time and, if he or she desires, covers that expense with advertising”

    That is the method used by most religious programming. It is also how most smaller stations survive.

    • guest

      You mean like Sinclair Broadcasting affiliates?

      • Rhett Hardwick

        I don’t think so. It appears Sinclair simply buys smaller stations.

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