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Kay v. FEC


On April 21, 1981, the U.S. District Court for the District of Columbia granted the FEC's motion for summary judgment in the suit Richard B. Kay v. FEC (Civil Action No. 80-3081) and denied plaintiff's cross-motion for summary judgment.


Plaintiff filed this suit on December 2, 1980, seeking a declaratory judgment that the FEC had acted contrary to law in dismissing an administrative complaint that plaintiff had filed against The Plain Dealer Publishing Company of Cleveland and several of its officers and employees. Plaintiff, who had been a Presidential primary candidate in Ohio, alleged that a full-page chart published in The Plain Dealer before the 1980 Ohio Presidential primary was a political advertisement by the publishing company. The chart carried photographs of three major party Presidential candidates and summaries of their positions on nine campaign issues ranging from inflation to federal funds for abortions. Plaintiff alleged the ad constituted either a corporate expenditure or a corporate in-kind contribution both prohibited under the Act.

After investigating the complaint pursuant to the enforcement procedures of Section 437g(a) of the Act, the Commission, acting on a recommendation from the General Counsel to dismiss the complaint, found no reason to believe the Act had been violated. In his report to the Commission, the General Counsel observed that the "contents of this chart merely constitute an effort on the part of The Plain Dealer to report in an orderly manner for the benefit of its readers the issue stands and activities of the major candidates in the Ohio primary. In essence, The Plain Dealer was printing a news story in chart form." The General Counsel noted that the Act and Commission regulations specifically exempt such news stories from the definitions of "contribution" and "expenditure," provided the news corporation is not controlled by any political party, political committee or candidate. The General Counsel noted that there was no indication of such ownership or control of The Plain Dealer.

District court ruling

Holding that no material facts were in dispute and that applicable law was clear, the court found that: "The Commission's action, based on the General Counsel's recommendation that the publication be treated as a newspaper story, was plainly consistent with the law. The Plain Dealer was doing the main business of a newspaper: in its own way, it informed the public about issues which the public would decide."

As to plaintiff's claim that he did not receive reasonably equal news coverage in The Plain Dealer's circulation area, the court noted that a newspaper had no duty under the Act to give "equal time" to candidates. The court said, "To the extent that this 'equal time' concern was an element of plaintiff's complaint, the Commission quite properly ignored it." Plaintiff appealed the decision.

Appeals court ruling

On December 1, 1981, the U.S. Court of Appeals for the District of Columbia Circuit issued a judgment in Richard B. Kay v. FEC (Civil Action No. 80-3081), which upheld the district court's decision that the FEC's dismissal had not been contrary to law.

Source:   FEC Record February 1982; and June 1981. Kay v. FEC, No. 80-3081 (D.D.C. April 20, 1981) (unpublished opinion), aff'd mem., 672 F.2d 894 (D.C. Cir. 1981).