Mid-cycle changes could be construed as improperly motivated
The American Civil Liberties Union of Kentucky today sent a letter to KET Executive Director and CEO Shae Hopkins calling on the publicly-funded broadcaster to reinstate the requirements it previously adopted for inviting candidates to participate in its election-related programs.
KET initially adopted criteria on April 21st for inviting candidates to participate in its primary and general election coverage this year. Soon after the primaries, however, KET began modifying the month-old criteria for inviting general election candidates. And on July 22nd, KET formally adopted new, more onerous requirements. Specifically, KET changed its criteria by requiring candidates to satisfy all of its listed requirements whereas before it required candidates to satisfy only one. Moreover, the qualifications themselves were substantially changed, most notably KET’s imposition of a substantially heightened minimum fundraising requirement. Unlike the $10,000 threshold it adopted in April, KET raised the minimum amount required to $50,000 for U.S. House candidates and $100,000 for U.S. Senate candidates. And KET also now requires that candidates receive at least 10% support in public polling rather than the 5% it previously mandated.
In arguing why the mid-election cycle changes could be construed as improperly motivated, and thus potentially contrary to the First Amendment, ACLU of Kentucky Legal Director William Sharp pointed to the nature of the changes, the timing of their adoption, and their (anticipated) effect of excluding one or more third-party and write in candidates who might have otherwise qualified under the prior criteria. Sharp specifically cited an email from a KET official who, in explaining the difference between the House and Senate campaign contribution minimums, explained that “there are legitimate candidates for the congressional races that we would like to include who might not make that $100,000 threshold.” (Emphasis added). Sharp explained that “the cited language could be construed as a results-orientated approach ... in which the criteria are tailored to permit favored candidates to participate while excluding other, non-favored candidates.”
September 12, 2014 - 9:43am
