FEDERAL COMMUNICATIONS COMMISSION

39 F.C.C.2d 89

RELEASE-NUMBER: FCC 72-924

OCTOBER 12, 1972

OPINION:

[*89] MR. LARRY SEIGLE, National Campaign Manager, Socialist Workers Party 1972, Campaign Committee, 706 Broadway, 8th Floor, New York, N.Y.

DEAR MR. SEIGLE: This is in response to your letters of August 5, 10 and 29, 1972 concerning various equal time requests for Socialist Workers Party Candidates.

In your correspondence you state that the then Democratic Party Vice Presidential candidate, Senator Thomas Eagleton, appeared on the "Merv Griffin Show" on July 27; that his appearance was a "use" under Section 315 of the Communications Act of 1934, as amended; and that Andrew Pulley, Vice Presidential candidate of the Socialist Workers Party requested equal time from Metromedia, Inc. within seven days of the first prior use. You note that subsequent to the application for equal time, Senator Eagleton withdrew as a candidate for Vice President. You state that Metromedia, Inc. denied Mr. Pulley's request for equal time because it believed that the withdrawal of Senator Eagleton made the request moot. In opposition to Metromedia's position you assert:

It is clear that the claimant becomes entitled to equal opportunity at the time he submits his request, provided that all the criteria of Section 315 are met. Thus as of July 28, Mr. Pulley was entitled to equal time. How can this right be revoked, several days later by subsequent events? In theory, had Metromedia responded immediately to the request, Mr. Pulley could even had been granted his equal time before Senator Eagleton's withdrawal. The licensee's obligation to provide equal opportunity, already incurred, cannot be removed because of what subsequently happens to the candidate who appeared.

You declare that at the time Mr. Pulley asked for equal time the Socialist Workers Party had filed for ballot status in 15 states and been certified in six states; that the Socialist Workers Party has collected nearly 500,000 signatures on nominating petitions; that its candidates have toured the nation; that its campaign literature has been distributed nationwide; and that its campaign activities have been covered by the press and national radio and television networks. You state that Mr. Pulley has "established a national showing of a bona fide campaign, regardless of particular state laws." You conclude that he "should be entitled to equal time in all of the outlets that carried the July 27 Eagleton appearance." You further note that [*90] dates for certifying candidates for the ballot vary widely from state to state and that in many states the deadline for filing nominating petitions is several months before the date on which final certifications are issued. You ask when candidates for President and Vice President, other than those of the two major parties, become subject to Section 315. You claim that the national showing by Mr. Pulley and the Socialists Workers Party of his bona fide candidacy should be enough to establish that he is a legally qualified candidate under Section 315.

In your correspondence you included articles which acknowledge that the Socialist Workers Party candidate for President, Ms. Linda Jenness, is 31 years old and the Vice Presidential candidate, Mr. Pulley, is 21 years old. You claim that despite the fact that both candidates fail to meet the presidential minimum constitutional age requirement of 35, n1 Ms. Jenness and Mr. Pulley are legally qualified candidates and should be granted equal time. You state that presidential elections are protected by the U.S. Constitution and cite Oregon v. Mitchell, 400 U.S. 112 (1971) to support your contention; that the Twentieth Amendment, Section 3 of the Constitution provides the procedure to be followed in the event of the election of a President or Vice President who is not qualified to take office; that the Twentieth Amendment gives Congress the power to provide by law for the case where neither the President nor Vice President has qualified before the time fixed for the beginning of their terms; that the Supremacy Clause, Article IV, Section 2 of the Constitution provides that the Constitution takes precedence over other state laws; that legislative history shows that the framers of the Twentieth Amendment foresaw the possible selection of a disqualified President-elect or Vice President-elect and decided to give people an opportunity to actually vote for persons ineligible to take office. You state:

n1 Article II, Section I, Clause 4 of the United States Constitution states that "No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained the Age of thirty-five years, and been fourteen years a resident within the United States." Further Article XII of the Constitution provides that "... no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States."

It is interesting to note that candidate Jenness comes within the terms of the last phase of Section 3, Amendment XX. The next presidential term will begin on January 20, 1973. (Amendment XX Section 1.) Linda Jenness will reach the age of 35 within the next presidential term. Thus, if she is elected, she will then qualify to take office on her thirty-fifth birthday. (Of course this assumes that no constitutional amendment is passed lowering the age requirement between her election and the beginning of the next presidential term. If such an even occurred she would then take office earlier than her thirty-fifth birthday.)

You further state:

It is clear, therefore, that Constitutional Amendment, and subsequent Congressional action, has preempted this area and provided the course to follow should an underaged president be elected. The solution is left to Congress. Therefore, any attempt by the networks to deny Jenness or Pulley equal time on the grounds of their failure to meet the age limit set by the Constitution would be an impermissible infringement on their Constitutional rights.

In telephone conversations with members of the Commission's staff you stated these constitutional arguments are now pending before an Ohio court.

[*91] In further correspondence, you state that Ms. Jenness asked the National Broadcasting Company and the Mutual Broadcasting system for equal time to reply to those networks' broadcast of a speech made by Democratic Party nominee George McGovern on August 5, 1972; that NBC denied your request because Ms. Jenness is under 35 years of age and has not established that she is a legally qualified candidate for the presidency of the United States; and that Mutual Broadcasting System denied your request on the basis that the appearance of Senator McGovern was a news broadcast and exempt from the equal time regulation. In reply you state that "the decision of both networks infringe on Linda Jenness' right, as a bona fide candidate for the presidency of the United States, to equal time..."

In another matter involving a candidate of your party, you state that on April 26, 1972 Congressman Roman C. Pucinski, Democratic Party candidate for United States Senate from Illinois, appeared on station WTTW, Chicago; that Fred Halstead the Socialist Workers Party candidate for the same office asked WTTW for equal time; that Mr. Halstead is "in the process of complying with the state requirement to appear on the ballot"; and that the licensee of WTTW demanded a letter from the Secretary of State of Illinois declaring that Mr. Halstead was a legally qualified candidate as evidence of Mr. Halstead's bona fide status. You claim that the Secretary of State has no statutory authority nor is competent to rule on the bona fide character of a candidate: that his sole function in Illinois with regard to elections "is to order the placing on the ballot of those candidates who have met the requirements under state law"; that Illinois law did not allow Mr. Halstead to file his signatures until well after the appearance of Congressman Pucinski; that Mr. Halstead has collected 40,000 signatures and is carrying on a serious campaign; and that "If for any reason, he should be unsuccessful in his attempt to be listed on the ballot, he will run a vigorous write-in campaign." You further state:

If the Commission were to hold that a candidate who is in the process of getting on the ballot can only qualify for equal time after his certification by the Secretary of State, the Commission would be discriminating against those candidates who try to meet the ballot requirements, and in favor of those who content themselves with write-in campaigns, since a bona fide write-in candidate is eligible for equal time as he launches his campaign.

This would clearly be a denial of equal protection under the law.

Section 315 of the Communications Act of 1934, as amended states that if a licensee permits any person who is a legally qualified candidate for any public office to use a broadcasting station, he must afford "equal opportunities" to all other such candidates for that office in the use of such broadcasting station. If a legally qualified candidate appears on a bona fide newscast, bona fide news interview, bona fide documentary or on-the-spot coverage of a bona fide news event such an appearance will not be deemed a use of a broadcasting station for the purposes of Section 315.

Regarding the complaints of Linda Jennes and Andrew Pulley against Metromedia, Inc., National Broadcasting Company and Mutual Broadcasting System, you claim that despite the fact that both are under the minimum age of 35 as set by the Constitution in order to [*92] be eligible as President and Vice-President they should for various reasons be considered to be legally qualified candidates. The Commission has repeatedly stated that a legally qualified candidate must be determined by reference to the law of the state in which the election is being held. In general a candidate is legally qualified under Section 315 if he can be voted for in the state or district in which the election is being held, and, if elected, is eligible to serve in the office in question. See Use of Broadcast Facilities by Candidates for Public Office, 35 Fed. Reg. 159, Public Notice of August 7, 1970, Section IV, Question and Answer number 1. The Commission agrees that the Twentieth Amendment provides the procedure to be followed in the event of the election of a president or vice president who is not qualified to take office. However, neither the legislative history which you cite nor the logical thrust of the Twentieth Amendment give us reason to overturn our interpretation of who is a legally qualified candidate for purposes of Section 315. It is clear from the facts before us that Ms. Jennes and Mr. Pulley if elected, would not be eligible to serve as President or Vice President because they do not meet the minimum age requirement of 35 as set by the Constitution. Therefore they cannot be considered legally qualified candidates for the offices of President and Vice President and Metromedia, Inc., National Broadcasting Company and Mutual Broadcasting System need not provide them with "equal opportunities" to reply to Senator Eagleton and Senator McGovern. The additional issues concerning Senator Eagleton's appearance and related to these complaints are moot unless Ms. Jenness and Mr. Pulley are legally qualified candidates, and it is unnecessary for the Commission to reach a decision on these issues.

In connection with your complaint regarding Fred Halstead, candidate for U.S. Senate from Illinois, you ask when third-party candidates for state office become eligible for equal time. The Commission does not differentiate between major party candidates and candidates of other parties. Any candidate who complies with the law of the state in which the election is being held is generally considered to be a legally qualified candidate. In addition Section 73.657(a) of the Commission's Rules defines a legally qualified candidate as:

... any person has publicly announced that he is a candidate for nomination by a convention of a political party or for nomination or election in a primary, special, or general election, municipal, county, state or national, and who meets the qualifications prescribed by the applicable laws to hold the office for which he is a candidate, so that he may be voted for by the electorate directly or by means of delegates or electors, and who:

(1) Has qualified for a place on the ballot or

(2) Is eligible under the applicable law to be voted for by stricker, by writing in his name on the ballot, or other method, and (i) has been duly nominated by a political party which is commonly known and regarded as such, or (ii) makes a substantial showing that he is a bona fide candidate for nomination or office, as the case may be.

Section 73.657(f) also provides that a "candidate requesting... equal opportunities of the licensee, or complaining of noncompliance to the Commission shall have the burden of proving that he and his opponent are legally qualified candidates for the same public office."

It is clear in this case that Mr. Halstead decided to get on the Illinois ballot via the petition method. It appears from the facts before [*93] us that at the time of Congressman Pucinski's appearance and even at the time of this complaint more than three months later, Mr. Halstead's petitions still had not been certified nor his name officially placed on the ballot in Illinois. n2 Therefore, there is no basis for stating that he is a legally qualified candidate under the petition method until he is certified as such by the Illinois Secretary of State. See Use of Broadcast of Facilitated by Candidates for Public Office, supra. You state that Mr. Halstead will seek to become a write-in candidate for Senator if he is unsuccessful in his attempt to be placed on the ballot via the petition method. However, it is clear that as of the time of Congressman Pucinski's appearance on WTTW, and indeed for a considerable time thereafter, he had not attempted to become a write-in candidate and could not be considered a legally qualified candidate via the write-in method. At such time that Mr. Halstead chooses to conduct a write-in campaign, the question as to whether he is a bona fide write-in candidate and therefore legally qualified under the provisions of Section 73.657(a) and (f) will then be decided if a Commission determination becomes necessary at that time. (cf. Anthony L. Bruno, 26 FCC 2d 656 (1970). In any event, it appears that Mr. Halstead was not a legally qualified candidate at the time of Representative Pucinski's appearance and therefore was not entitled to equal opportunities in connection with his April 26 appearance.

n2 In a telephone conversation on September 13, 1972 between you and a member of the Commission's staff you stated that Mr. Halstead's only basis for claiming that he was a legally qualified candidate to Station WTTW was that he was attempting to get on the ballot in Illinois via the petition method. You also state that Mr. Halstead is only conducting a petition drive and has not attempted to become a write-in candidate and will not attempt to become a write-in candidate unless he fails in his petition drive.

Commissioner Johnson dissenting and issuing a statement.

BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.

DISSENTBY: JOHNSON

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

In its letter to Mr. Larry Seigle (National Campaign Manager for the Socialist Workers Party), the Commission majority plunges headlong into the decision of issues which would give our greatest jurists considerable pause. The question of who is or is not a "legally qualified candidate" for national office is far more complex than is indicated by the majority's shallow analysis.

Linda Jenness and Andrew Pulley are said to be the duly nominated candidate for President and Vice candidates for President and Vice President of the Socialist Workers Party. As such, they are entitled to opportunities for access to the airwaves equal to those of their opponents, under Section 315 of the Communications Act of 1934, unless and until the Supreme Court has decided otherwise or until Congress has altered the Section.

Vice Presidential candidate Andrew Pulley requested equal time from Metromedia, Inc., following a July 27, 1972 appearance by then-Democratic Vice Presidential candidate Thomas Eagleton on the Merv Griffin Show. Metromedia refused, using only the argument that it believed that the withdrawal of Senator Eagleton made the request moot. Candidate Linda Jenness requested equal time from NBC and the Mutual Broadcasting System in order to reply to a speech made by [*94] Democratic Party nominee George McGovern on August 5, 1972. While Mutual denied the request on the basis that the appearance of Senator McGovern was a news broadcast, NBC chose to deny the request because Ms. Jenness was under 35 years of age. The Commission has decided these two cases solely on its own interpretation of who is, or is not, a "legally qualified candidate." If Ms. Jenness and Mr. Pulley are not "legally qualified candidates," so the argument goes, none of the other issues need be reached. The Commission's rules include in the definition of "legally qualified candidate" the criteria that the candidate must met "the qualifications prescribed by the applicable laws to hold the office for which he is a candidate." The majority holds that both candidates, because they are too young to hold the office for which they are running are, therefore, not legal candidates for office.

The majority's mistake is in the slipshod application of its own procedural rules and "guidelines" in such a manner as to give them substantive validity. The majority states that "Any candidate who complies with the law of the state in which the election is being held is generally considered to be a legally qualified candidate." [emphasis added] In addition, the majority purports to define a "legally qualified candidate" within the context of its Rules.

I had always been under the impression that the U.S. Constitution took precedence over the Rules of the Federal Communications Commission. That Constitution gives the requirements for holding the two highest offices in this country. See Article 2, Section 1, Clause 4. It most certainly does not delineate the requirements for candidates to those offices, and moreover provides, in Amendment XX, Section 3, for the eventuality of the election of a President or Vice President not eligible otherwise to serve:

If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified: and Congress may be law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified...

[emphasis added] I can find no other implication in the words of this Amemdment than that the right of Ms. Jenness and Mr. Pulley to run for President and Vice President and even to be elected to those offices is a constitutionally protected one, regardless of the nature of their inability to serve.

In the case of 31-year-old Ms. Jenness, I need only reiterate petitioner's point that one need look no further than the Constitution to discover the procedure whereby she would be entitled to inauguration as President the moment she reaches her 35th birthday. Thus, the presumption made by the majority that "It is clear from the facts before us that Ms. Jenness and Mr. Pulley, if elected, would not be eligible to serve as President or Vice President..." does not, as it would insist, so simplistically lead to the assumption that the Socialist Worker Party candidates should be denied their legal rights as candidates.

The majority's action regarding Socialist Worker Party, U.S. Senate candidate Fred Halstead is, if anything, even less excusable than its resolution of the more complicated intellectual issues confronting Jenness and Pulley. I can find no justification for this denial even [*95] within the context of a proper application of the Commission's Rules.

Mr. Halstead requested equal time from station WTTW, Chicago, after an appearance on April 26, 1972 by Congressman Roman C. Pucinski, the Democratic nominee for the U.S. Senate. The licensee of WTTW demanded a letter from the Secretary of State of Illinois declaring that Mr. Halstead was a "legally qualified candidate." However, petitioner submits that the Secretary of State has no statutory authority to rule on the bona fide character of a candidate, but only to certify the candidate onto the state ballot once he has submitted a sufficient number of nominating petitions. Moreover, Illinois law did not even allow Mr. Halstead to file his petitions until well after the appearance by Mr. Pucinski. The station, however, refused to grant Mr. Halstead the time, and the Commission has now upheld that refusal with what is at best a tortured misreading of its own Rules and definitions.

The Commission's Rules define a "legally qualified candidate" as one who either "(1) Has qualified for a place on the ballot or (2) Is eligible under the applicable law to be voted upon by sticker, by writing in his name on the ballot, or other method, and (i) has been duly nominated by a political party...." § 73.657(a). [emphasis added]

The fact that Mr. Halstead is attempting to pursue the longer, more arduous process of getting his name on the ballot in Illinois by nominating petitions by no means renders him "ineligible" under Illinois law to be a write-in candidate. Yet this Commission has placed itself in the absurd position of penalizing Mr. Halstead, the "duly nominated" candidate of his party, for pursuing the former, even though he has expressed every intent of falling back on the status of "write-in" candidate should his petition drive fail. This decision, in effect, serves to deprive all minority or fringe party candidates of their not inconsiderable rights under Section 315 of the Communications Act for attempting to use other, equally precious, rights guaranteed them under our system of democracy.