Why campaign finance laws probably won’t stop Hannity and Lewandowski from helping Trump

So keep Brock's agenda and try-it-all style in mind when I tell you that the latest effort by his American Democracy Legal Fund is to try to persuade the Federal Election Commission to investigate Sean Hannity and Fox News's parent company for alleged violations of campaign finance laws.

Hannity is one of Trump's biggest media boosters, and his aid for the business mogul's presidential prospects does not end with promotional on-air commentary. He acknowledged in a New York Times interview last month that he is an informal adviser to the Trump campaign, and he appeared in a Trump ad released Sunday. Fox News told Politico that Hannity appeared without the network's knowledge and will not do so again.

In a complaint filed with the FEC two days after the Times reported Hannity's advisory role, Brock's legal fund alleged that "Mr. Hannity may be using Fox News Channel resources to offer the Trump campaign 'suggestions on strategy and messaging,' which would be in violation of the federal prohibition on corporate campaign contributions."

Although the complaint was filed more than three weeks ago, a Fox News Channel spokeswoman said the network was not aware of it.

The accusation by Brock's group is politically motivated, to be sure, but it highlights a question raised repeatedly in the 2016 campaign by media observers in and out of the industry: At what point do the activities of media professionals cross the line to become illegal, in-kind corporate contributions?

Corporations, don't forget, are still prohibited from making direct contributions of money or services to political campaigns; the Supreme Court decision in Citizens United removed limits on outside spending.

Media companies enjoy a broad exemption from the laws governing corporate donations. A newspaper's endorsement, for example, is not considered by the FEC to be an in-kind contribution to the candidate it supports, even though its value is arguably equivalent to that of an advertisement, which the candidate would otherwise have to purchase. Rather, an endorsement is considered part of a newspaper's "normal press function."

The trouble, or potential trouble, is that the FEC's "normal press function" standard is hard to define. If Fox News pays Hannity to host a TV show, knowing that Hannity uses the media knowledge he gains from employment to advise Trump off the air, is the cable channel still within the bounds of normal press functions?

The same question could be asked of CNN, which hired former Trump campaign manager Corey Lewandowski as an analyst in June. Like Hannity, Lewandowski is an informal adviser to Trump, Politico reported last week. He also receives what CNN has described as "severance" pay from the campaign, although Trump's latest financial report stated that Lewandowski's $20,000 compensation in August was for "strategy consulting." Unlike Hannity, Lewandowski is not the subject of a complaint filed with the FEC.

The dual roles of Hannity and Lewandowski might make media ethicists squeamish, but it is unlikely that the FEC would investigate — never mind penalize — them and their networks, according to Daniel A. Petalas, the agency's acting general counsel from August 2015 until this month, when he joined the Washington office of Garvey Schubert Barer.

"Hannity is entitled to volunteer and provide input," Petalas said. "And furthermore, given that he is a pundit, the access he gets by being involved in these discussions with the Trump campaign presumably benefits his legitimate press function as a pundit. I think there's a very good argument that by doing this [advising], he is participating in his press function."

Sean Hannity, Trump’s spin ‘Doctor’

Petalas noted that the FEC cannot investigate a media company for an alleged campaign finance violation without reason to believe that the press exemption does not apply. A case from 2000 — when The Washington Post, the New York Times, the Los Angeles Times, ABC, NBC and CBS were accused of making in-kind contributions to George W. Bush — explains why:

"This two-stage process was mandated because the media exemption represents a fundamental limitation on the jurisdiction of this agency, and even an investigation of publishers can trespass on the First Amendment," the commission wrote in dismissing the complaint by a 5-0 vote.

In other words, the FEC takes care not to open frivolous investigations, out of respect for the constitutionally protected free press. Even when activities stretch the limits of what a reasonable person would deem a normal press function, the commission has historically been reluctant to probe.

Take another case involving Hannity: In 2011, the FEC dismissed a complaint filed by a New York Democratic Party official who contended that Hannity and Premiere Radio Networks, which syndicates his radio show, operated outside their press function when they sent an email to 43,000 listeners encouraging them to donate to the congressional campaign of Republican John Gomez.

Is soliciting money for a candidate using a corporate email list really a normal press function? Two commissioners didn't think so, but the FEC general counsel's office (pre-Petalas) concluded that Hannity and Premiere were covered by the media exemption, writing that "a solicitation for contributions may appear in a commentary that is a regular feature of a website, provided that the solicitations themselves do not become a regular feature of its content." The call for donations to Gomez's campaign was contained in Hannity's regular newsletter but appeared only once. The commission voted 3-2 to dismiss the case.

Petalas said the media exemption does not make everything permissible. If, for example, Hannity were giving the Trump campaign early access to Fox News survey data — effectively donating the company's polling services — "that could definitely be a problem," he said.

But there is no evidence of such shenanigans, which probably means no investigation. Critics of Hannity, Lewandowski and other Trump cheerleaders in the media may not like what they do, but campaign finance laws seem unlikely to stop them.