An advisory opinion has been requested whether the costs incurred to stage and broadcast a debate between two candidates for mayor are in-kind contributions to and expenditures on behalf of these two candidates (both of whom are participating in the New York City Campaign Finance Program) under the New York City Campaign Finance Act (the "Act") when other mayoral candidates are not invited to appear in the debate1.
The request describes the following relevant circumstances: WCBS-TV has invited the Democratic party nominee, Mayor David Dinkins, and the Republican and Liberal parties' nominee, Rudolph Giuliani, to participate in a one hour debate to be broadcast on October 28, 1993 at 7:00 p.m. WCBS-TV has not invited the Conservative and Right To Life parties' nominee, George Marlin, to appear in this debate. The request contends that the exclusion of Mr. Marlin should result in a determination that the cost of the debate is an in-kind contribution by WCBS-TV to, and, thus, an expenditure by, the Dinkins and Giuliani campaigns subject to the contribution and expenditure limits of the Act2.
Under the Act, the term "contribution" includes a "payment in connection with the... election" of a candidate. New York City Administrative Code §3-702(8); see also Campaign Finance Board Rules 1-02, defining "in-kind contribution"; 1-04(g) (1) . In Advisory Opinion No. 1989-34 (July 19, 1989), the Board determined that the cost of a non-partisan educational program that was sponsored by an entity other than a political committee was not a contribution to the mayoral candidates who appeared at that event (a series of breakfast meetings sponsored by a local development corporation).
While that opinion specifically addressed a program to which all mayoral candidates were invited, when the sponsor of a similar non-partisan educational program, such as a debate, has made a non-partisan judgment to invite fewer than all candidates seeking the same office to appear, the sponsor's costs are not in-kind contributions to or expenditures by the candidates who are invited or who appear3.
Moreover, in this case, the decisions regarding the debate reflect the editorial judgment of the sponsor, a licensed broadcaster and bona fide news organization. Clearly, the Act's limits on contributions and expenditures were not intended to regulate, directly or indirectly, legitimate news coverage of candidates, including the broadcast of debates. CBS Inc. has made the following representations about the debate:
... WCBS-TV's decision to invite only Mayor Dinkins and Mr. Giuliani to participate in its proposed debate was not intended to favor either candidate, but was rather based solely on the station's news judgment. Public opinion polls throughout the campaign have consistently shown that the overwhelming majority of New Yorkers intend to vote for either Mr. Dinkins or Mr. Giuliani, while Mr. Marlin is likely to receive only about two percent of the vote. In these circumstances, it was the editorial judgment of WCBS-TV that the issues could best be illuminated by a one-on-one encounter between the two leading candidates.
Decisions of this kind are the essence of journalistic discretion, and are made on a daily basis by all news organizations in deciding how much coverage to devote to each of the often multiple candidates in a particular election4.
For these reasons, the Board concludes that in this case the costs incurred by WCBS-TV, a bona fide broadcaster, to stage a debate between two mayoral candidates in the upcoming general election are not subject to regulation under the New York City Campaign Finance Act5.
NEW YORK CITY CAMPAIGN FINANCE BOARD6
1 This opinion has been requested by Patrick J. Foye in a letter, dated October 25, 1993. The letter is styled both a "formal complaint" and a request for an advisory opinion. This submission was verified by George J. Marlin in a letter, dated October 27, 1993. A supplemental submission was received on October 27, 1993. Letter of Patrick J. Foye, dated October 27, 1993.
2 While not a factor in this opinion, the Board notes that, unlike Dinkins and Giuliani, Marlin is not the nominee of a major political party within the meaning of New York State Election Law, and that the other two mayoral candidates who will be on the general election ballot were not invited to appear in this debate. See Election Law §1-104(3), (12), (24).
3 Similarly, the Federal Election Commission has ruled that the costs sponsors (including broadcasters) incur in staging non-partisan candidate debates are not contributions or expenditures under federal law, provided that "(1) such debates include at least two candidates, and (2) such debates are nonpartisan in that they do not promote or advance one candidate over another." 11 CFR §110.13; see also 11 CFR §§100.7(b) (21); 100.8(b) (23); 114.4(e).
4 Letter of Howard F. Jaeckel, Associate General Counsel, CBS Inc., dated October 26, 1993.
5 This opinion applies regardless whether one candidate declines to appear in the debate, and the reasoning of this opinion extends to other bona fide television, radio, and print news events, including interviews and other coverage of candidates' campaigns.
6 Board member Vaughn C. Williams recused himself from consideration of this advisory opinion.