Falwell Evades FEC Complaints

Friday July 22, 2005

A complaint was made to the Federal Election Commission, charging that Jerry Falwell had violated the law when he endorsed President Bush's re-election. Falwell argued that he made the endorsement while in his role as owner of media outlets, not in his role as preacher, and therefore no laws were violated. The FEC bought it.

The San Francisco Chronicle reports:

"Dr. Falwell does not lose his right to personal expression each election cycle," Staver said. "As a member of the media, the media outlets through which he communicates enjoy the protection of the First Amendment." ... Staver noted that Falwell founded Liberty Broadcasting Network, television station WTLU, the Liberty Channel cable network and two radio stations. He argued that Falwell did not relinquish editorial rights just because he is also a preacher.

Stephen Ayer comments:

To be clear: just because Falwell founded a bunch of media properties as a conduit for his conservative Christian hate—never forget that this is the wingnut who blamed gays, lesbians and the ACLU, among others, for 9/11—it doesn’t make him a “member of the media.” No matter how many times he sounds off on those media outlets—or anywhere else, for that matter.

Moreover, Falwell’s televangelism properties are mostly financed by funds raised for and by his tax-exempt, nonprofit religious organizations. So Falwell wasn’t exercising his “right to personal expression” as a member of the media; he was leveraging his tax-exempt-funded assets for very explicit political advocacy.

This, I think, is the sort of thing that happens when two different laws conflict with each other. A person can certainly be both a preacher and a media owner or journalist — what's legal for one may not be legal for the other, and vice-versa. How can the FEC determine which "hat" Falwell was wearing when he made his endorsements? So long as he avoids obvious goofs, like saying "as preacher I tell you this...," then wouldn't he be safe?

Let's set aside the large corporations for a moment: many believe, justifiably, that blogs should be treated like other media outlets for the purpose of election laws. A person commenting in a blog should be considered the legal equivalent of an editor commenting in the editorial page. Now, what if a preacher has a blog — a personal blog, not one on the church's web site? Shouldn't that be treated like a newspaper? Shouldn't the preacher be allowed to endorse a candidate there?

That is arguably the case — it's difficult to see how the law can be read to discriminate against preachers writing an editorial as individual citizens. Would it matter if the blog identified them as a cleric and where they worked? Probably not. Would it matter if the personal blog discussed religion and politics generally? Probably not.

Would it matter if the blog were promoted in the church? Perhaps — they'd have to be very careful not to give the impression that the blog were an "official" organ of the church, and the preacher would have to do the same in the writing. The laws prohibit churches and other religious organizations from endorsing candidates as a condition of their tax-exempt status — the same is true of all tax-exempt charities. This doesn't mean that the people who work for or run these organizations cannot endorse candidates, though, just so long as they do so in their role as private citizens.

Getting back to Falwell, if this media properties really are financed by tax-exempt donations and are themselves tax-exempt, then it seems strange that he would be able to get away with endorsing candidates. It wouldn't even matter if they are described as religious or not because secular tax-exempt organizations are also prohibited from getting involved in politics like that. It's possible, then, that Falwell was smart enough to set up the media properties in a way that allows him to do this — just like a minister or rabbi could easily set up a blog that would allow them to endorse candidates without violating election laws.

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