From: "David T. Hardy"

To: steven.hammel@kpho.com

CC: sheriffmack@hotmail.com

Date: Thu, 19 Oct 2006 10:10:57 -0500

Hello! I represent Sheriff Mack and Ariz. Libertarian Party, and wish to

pass on the following information. I've resarched the McCain-Feingold

Campaign Reform Act and its accompanying FEC regulations.

McCain-Feingold generally forbids a corporation to fund or broadcast

"electioneering" communications -- anything that mentions or clearly

identifies a candidate within 60 days of a general federal election.

11 Code of Fed. Regulations sec. 100.13(2) exempts broadcasters which stage

a candidate debate, under certain conditions. 100.13(2)(c) specifically

lays out the conditions for candidate selection:

" (c) Criteria for candidate selection. For all debates, staging

organization(s) must use pre-established objective criteria to determine

which candidates may participate in a debate. For general election debates,

staging organizations(s) shall not use nomination by a particular political

party as the sole objective criterion to determine whether to include a

candidate in a debate." [Section then goes on to prescribe rules for

covering primary elections].

This requires that the criteria both be "pre-established" and "objective."

A broadcaster cannot simply make an ad-hoc judgment that a third party

doesn't have enough support. Rather they must, at some point before making

selections, establish an objective policy of just how much support is

required and how it will be demonstrated. From what the sheriff indicates

to me, KPHO had no such established policy. Rather, its decisions are

motivated by the dictates of the two major candidates, and based upon an ad

hoc call that the sheriff lacks enough support (without any previous policy

as to just how much support is required).

It appears that the exclusion of the sheriff from the debate would violate

McCain-Feingold and the FEC regulations. As I recall, a violation is a

criminal offense, as well as subject to civil penalties imposed by the FEC.

The full text of the regulations, downloaded from the FEC.gov website,

follows:

Sec. 110.13 Candidate debates.

(a) Staging organizations. (1) Nonprofit organizations described in

26 U.S.C. 501 (c)(3) or (c)(4) and which do not endorse, support, or

oppose political candidates or political parties may stage candidate

debates in accordance with this section and 11 CFR 114.4(f).

(2) Broadcasters (including a cable television operator, programmer

or producer), bona fide newspapers, magazines and other periodical

publications may stage candidate debates in accordance with this section

and 11 CFR 114.4(f), provided that they are not owned or controlled by a

political party, political committee or candidate. In addition,

broadcasters (including a cable television operator, programmer or

producer), bona fide newspapers, magazines and other periodical

publications, acting as press entities, may also cover or carry

candidate debates in accordance with 11 CFR part 100, subparts B and C

and part 100, subparts D and E.

(b) Debate structure. The structure of debates staged in accordance

with this section and 11 CFR 114.4(f) is left to the discretion of the

staging organizations(s), provided that:

(1) Such debates include at least two candidates; and

(2) The staging organization(s) does not structure the debates to

promote or advance one candidate over another.

(c) Criteria for candidate selection. For all debates, staging

organization(s) must use pre-established objective criteria to determine

which candidates may participate in a debate. For general election

debates, staging organizations(s) shall not use nomination by a

particular political party as the sole objective criterion to determine

whether to include a candidate in a debate. For debates held prior to a

primary election, caucus or convention, staging organizations may

restrict candidate participation to candidates seeking the nomination of

one party, and need not stage a debate for candidates seeking the

nomination of any other political party or independent candidates.