Radio stations in Missouri have been grappling with ads from a candidate for US Senate that contain racist and anti-Semitic elements. And although the stations must run the material as submitted if it comes from a legitimate candidate, they may turn them down cold if the candidate is not qualified. An unqualified candidate may be using that status to disguise “…an issue advertisement in candidate’s clothing,” says Womble Carlyle Sandridge & Rice attorney Gregg Skall.
The candidate in Missouri is Glenn Miller, who says he’s mounting a write-in campaign for the office.
Skall says there is a three-pronged test to determine whether a candidate is qualified or not, and the candidate seeking reasonable access to the airwaves must be able to demonstrate as much.
First, there must be a public announcement that the candidate is running for office, either a public statement or actually filing to run for office with the appropriate election authority.
Second, the candidate must meet legal requirements such as age and residency standards.
Finally, the candidate must be able to demonstrate that the campaign is bona fide. Qualifying for a place on the ballot is one way. For a write-in candidate, such as Miller, he must be able to demonstrate legitimacy, according to WCSR’s political advertising manual, by “engaging in activities commonly associated with political campaigning, such as making speeches, distributing literature, organizing a campaign committee and fund raising.” If the candidate is running for a Federal statewide office, the FCC has held that these activities must also be statewide.
WCSR says, “The candidate must make the substantial showing of a bona fide candidacy. This is one of the few areas of the political broadcasting rules in which the burden is on the candidate.”
Filing required reports with the Federal Election Commission could be one indication of bona fides, and Skall says they have been unable to find anything from Miller there.
Another question is determining when a campaign is considered to have started. In Missouri, primaries have not yet been held, so it can be argued that the general election campaign – the only one that Miller is competing in – is not out of the starting gate yet.
Skall does agree that if the candidate is qualified and the campaign season is under way, reasonable access to the airwaves must be provided and the text of an ad cannot be edited.
WCSR is pursuing the matter on behalf of its client, the Missouri Broadcasters Association, and they are challenging the legitimacy of Miller’s candidacy.