Russell Pearce's Radio Show and Its Potential Legal Problems

Pearce, just before taking the stage at the Red Mountain Tea Party
Pearce, just before taking the stage at the Red Mountain Tea Party

The most interesting item to drop from the lips of recalled state Senate President Russell Pearce at Mesa's Red Mountain Tea Party meeting on Monday was not the fact that he's running for state Senate in Legislative District 25. 

Rather, it was something Pearce said to me as I buttonholed him just before the shindig started: That despite being a candidate for the state Legislature, he would remain in his position as president of the nativist organization Ban Amnesty Now, and that he would continue to host the weekly radio show BAN sponsors on KFNX 1100 AM.

This is at odds with what BAN-founder Sean McCaffrey told me when I spoke with him in January about Pearce joining up with McCaffrey's 501(c)4 non-profit

At that time, McCaffrey explained that in order to protect BAN's 501(c) 4 status, Pearce would have to step down as president and relinquish his duties as a radio host if he ran for any "public elective office." McCaffrey specifically related his understanding that a 501(c)4 cannot back candidates.

But on Monday, Pearce said he could keep the show as long as he doesn't campaign while on it. Still, wouldn't he be de facto campaigning if he's on the air?

"No," Pearce said. "Why is it campaigning on the radio? Is everybody who's on the radio campaigning?"

I mentioned what McCaffrey had told me about him having to resign.

"I talked to my attorney and he said absolutely not," he replied. "There's things I can say and can't say, but I'll follow the rules, like I always do."

 

BAN identifying itself as a 501(c)4
BAN identifying itself as a 501(c)4

Actually, Pearce has a long history of acting as if "the rules" don't apply to him. For instance, last year he challenged the recall petition in court after it was certified, a challenge the Arizona Supreme Court shot down

And don't get me started on the recall's sham candidate Olivia Cortes, who was fronted by Pearce's friends, supporters, and family members. Pearce denies knowing about Cortes being a diversionary candidate, though that denial has always strained credulity.

The U.S. Internal Revenue Service allows a 501(c)4 -- the primary purpose of which is "promoting social welfare" -- a little more leeway than other tax-exempt organizations in regards to political activity. IRS publication 557 states the following:

"Promoting social welfare does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office. However, if you submit proof that your organization is organized exclusively to promote social welfare, it can obtain exemption even if it participates legally in some political activity on behalf of or in opposition to candidates for public office."

Thing is, the KFNX radio show is the only radio show BAN has, and Pearce is the sole host. I've listened to the show, and Pearce has on several occasions discussed his recall campaign with callers.

BAN also maintains a website where Pearce is featured prominently in his role as president. And BAN does mailings and e-mail blasts that are signed messages from Pearce soliciting donations. It's easy to see why McCaffrey would have believed back in January that Pearce should step down if he ran for state Senate.

There are other issues regarding Pearce hosting the radio show. Erstwhile U.S. Senate candidate J.D. Hayworth's hosting of a drive-time radio show on KFYI 550 AM sparked high-profile complaints to the Federal Communications Commission. This, before Hayworth officially announced his candidacy. 

In the wake of these complaints, KFYI's owner Clear Channel Communications agreed with Hayworth to end the show. At the time, media reports noted that the Hayworth show could have run afoul of a federal "equal time" statute.

 

The law reads, in part, that,

"If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station."

BAN pays for the one-hour slot from KFNX, but that may not let KFNX off the hook, according to Phoenix attorney Dan Barr, a media law specialist.

"Here, I'll make the argument against Pearce," Barr said, taking the position of a hypothetical rival. "You're buying an hour worth of time, so the station has to make available to us an hour worth of time at the same rate that you're giving it to the Pearce people. And if you don't do that, you're in violation of the statute."

Barr said that several potential legal issues are raised by Pearce's remaining on the radio.

"That's why once people start running for office they don't have radio shows," Barr observed.

One other issue involves state election law requiring the reporting of in-kind contributions to a candidate. 

Former Assistant Arizona Attorney General James Barton, whose expertise is election law, told me that  a weekly hour on the AM dial could be regarded as an in-kind contribution and be subject to reporting requirements.

"I'm a little bit surprised by that," Barton said. "That [Pearce] thinks can still do that show and it won't be campaigning."

Barton said that ultimately it would be the call of state elections officials. 

"If [Pearce] goes on a rant about undocumented immigrants [on the air]," offered Barton, "He's probably going to say, `That's not campaigning, that's just what I do. I'm not campaigning.' That would be something for the elections officials to get involved in, and maybe somebody would file a complaint."   

BTW, I've inquired with the Arizona Secretary of State's Office about this issue and am waiting for a response. I'll update the post if I get one.

Meanwhile, Pearce's next show on behalf of Ban Amnesty Now is scheduled for Monday at 7 p.m. You can bet I'll be tuning in.


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