The Federal Election Commission, in a split decision, will not punish Fox News for expanding their criteria by adding the second ‘undercard’ debate for the first Republican primary debate in August, 2015. But while the decision, made in May but only published on Thursday, leads to no action, it’s exposing fraught political fault lines within the FEC. The decision stems from a complaint filed by Mark Everson, a former IRS commissioner and relatively unknown Republican candidate for president, who alleged that when Fox News dropped the requirement that candidates must poll at least 1 percent in national polls, it violated FEC rules on debates that say debate hosts must use “pre-established objective criteria to determine which candidates may participate in a debate.” Because of the split decision on party lines (three commissioners voted against a violation, two voted for, and one voted to dismiss), no action will be taken against Fox News. But one of the Republican commissioners, Lee Goodman, began publicizing the ruling before it was published on Friday because he said he was alarmed by the way the three Democratic commissioners voted.
“Newsrooms everywhere should be concerned when the federal government asserts regulatory jurisdiction over their newsroom decision, and this is what this was,” Goodman said in an interview on Thursday, declining to comment on whether he thought the voting was based in any way on bias for or against Fox News. “Press rights are really on thin ice at FEC. There were two votes to find Fox News violated the law in what was… news coverage. There was one vote merely to dismiss it under prosecutorial discretion. That’s about as close as you’ll find to an American press entity being punished by its government and that’s what the debate is, it’s news coverage, when it’s sponsored by a press entity.”
The three Republican commissioners, Chairman Matthew Peters and commissioners Lee Goodman and Caroline Hunter, voted to not find Fox News in violation and to free Fox News’ editorial judgments from the FEC’s regulatory jurisdiction under the Free Press Clause of the Constitution and the Press Exemption in the Federal Election Campaign Act.
Two of the Democratic commissioners, Ann Ravel and Steven Walther voted that Fox News was in violation in accordance with what the FEC General Counsel found, while one, Ellen Weintraub, said she voted to dismiss the case.