As long as former and wannabe-future Maryland Republican governor Bob Ehrlich is not an announced candidate, hosting a radio show does not constitute in in-kind campaign contribution from WBAL-AM owner Hearst Corporation, as far as the Maryland Attorney General is concerned.
The Kendel and Bob Ehrlich show airs Saturdays on Baltimore institution WBAL. Ehrlich has indicated he plans to continue with the show until he formally announces his challenge to Democratic incumbent governor Martin O’Malley.
Assistant AG Jeffrey L. Darsie suggested that the Maryland State Board of Elections (SBE) refrain from acting on Democratic requests to intervene, saying that doing so would raise serious First Amendment problems.
Darsie suggested that this was not primarily a state issue, writing, “In light of the more than 35 years’ experience of courts and the FEC in interpreting a media exception consistent with the First Amendment, federal law probably offers the most useful guidance on the issue you have asked about.”
But he added, “In line with that guidance, our Office would advise that, in considering possible misconduct relating to the coverage of political discussion by a candidate or potential candidate, the focus should remain on activity by the media outlet that appears to be inconsistent with its ordinary press or broadcast function. Ordinarily SBE would not analyze the broadcast of a candidate’s political remarks as a possible in-kind contribution. The reason advanced for doing so here appears mainly to derive from the participation of former Governor Ehrlich as a host or co-host of the broadcast, and control over the show’s content that circumstance implies. But … this does not appear to be decisive, or even greatly relevant, for First Amendment purposes. Similarly, charges of media bias or a lack of balanced coverage do not provide grounds for subjecting a particular media outlet to campaign finance regulation where it would not be otherwise. Consequently, our Office sees no reason in this situation for SBE to depart for its usual practice.
For its part, according to the Baltimore Sun, the radio station has been offering equal time to O’Malley “for years.” It’s carried the Ehrlich show since 2007.