Did Tom Luna and Victor Miller’s Radio Show Cause Campaign Finance Reporting Errors and an FCC Investigation into KIDO and KLIX?

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On February 1, 2023 Idaho Dispatch reported on Chairwoman Moon attempting to address a financial issue with Ada County GOP Chair Victor Miller regarding a radio program on KIDO called Red Wave Radio, later changed to Keep Idaho Red Radio: IDGOP State Party Chair Dorothy Moon to Address Multiple Concerns Regarding Ada County GOP – Idaho Dispatch

Then on June 20, 2023 Chairwoman Moon announced an investigation into the Ada County GOP Finances: Breaking News: Idaho State GOP Chairwoman Notifies Ada County GOP Chairman of Investigation Into Finances – Idaho Dispatch

You can find several episodes of Keep Idaho Red Radio on the Ada County Republicans YouTube channel: Ada County Republicans – YouTube

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In addition to the issues raised by Chairwoman Moon regarding who is responsible for the cost of the program, there appears to be a possible issue with the campaign finance reporting regarding the airtime allotted to Republican candidates who were guests on the show.

Idaho Dispatch obtained the contracts regarding this programming from the KIDO and KLIX websites. Here are copies. You will notice that it was in August 2022, shortly after Luna lost the state GOP chairman seat to Moon that the program name and contract changed from Red Wave Radio to Keep Idaho Red Radio. There is also an August 2022 contract with Tom Luna & Associates for Tom Luna Radio.

Because of the various contract dates and amounts, airtime was valued differently per minute based on the date the candidates were interviewed. For example, the contract dated August 11, 2022 shows a weekly allotment of 48 minutes of show time on air for a total cost of $370 per week. That makes this airtime worth $7.71 per minute. A candidate receiving, and a political action committee (PAC) providing, a donation of either a dollar amount, or an “in-kind” donation (such as paid airtime) must report this on their campaign finance report (also called Sunshine Reports in Idaho). All monetary or in-kind donations are to be reported when they exceed $50. So, for this contract period, August 2022 to July 2023, everything for a particular candidate that was roughly 6.5 minutes or longer possibly could have required reporting to the Secretary of State.

Idaho Dispatch listened to and took note of multiple episodes of the radio shows. You can hear several of them here: Congressman Russ Fulcher, Superintendent of Education Debbie Critchfield, Ada County Sheriff Matt Clifford, State Treasurer Julie Ellsworth, Ada County Commissioner Rod Beck, Governor Brad Little, and Secretary of State Phil McGrane.

For each of these candidates, we searched the Sunshine reports on the Idaho Secretary of State’s campaign finance reporting website. We could not find any reporting related to Red Wave Radio or Keep Idaho Red Radio.

Idaho Dispatch asked the Idaho Secretary of State Phil McGrane’s office these questions, and received these responses:

Why didn’t Keep Idaho Red PAC report the in-kind donation for each candidate that was interviewed on Keep Idaho red radio?
-Per Idaho Code 67-6602(7)(b)(ii), Electioneering communication does not include: Any editorial endorsements or opinions aired by a broadcast facility not owned or controlled by a candidate, political committee, or a political party.  When reviewed in October 2022, the nature and content of the Keep Idaho Red radio show, where candidates were interviewed, was substantially similar to other broadcast talk radio shows on the same and other networks. As such, we do not consider the broadcast to be a reportable contribution/in-kind to the candidates interviewed. As a note, the interviews conducted and posted by the Idaho Dispatch are treated similarly and do not need to be reported as in-kind donations. This is treated differently from paid advertising expressly advocations for or against a particular candidate or measure. If the sole purpose of the Keep Idaho Red PAC is to produce the radio programing, it is not clear that filing as a PAC was required. However, if the PAC is engaged in other political activities, it would be required to be reported as an expense of the PAC.

Can candidates and PACs work together for marketing and campaigning?
-Candidates and PAC’s may work together for marketing and campaigning, with the understanding that any coordinated activity by a PAC constitutes an in-kind contribution to the candidate and is subject to the candidate’s contribution limit.  Additionally, any coordinated activity must be reported by both the candidate and the PAC.  PAC activity that is conducted as an independent expenditure that is not coordinated with a candidate has no financial limitations and is only required to be reported by the PAC.

What are the laws on PACs reporting in-kind for radio time?
-Any expenditure by a PAC using PAC funds must be reported. If a PAC contributes directly to, or in-kind to, a candidate must be reported by both the PAC and the candidate. This includes any radio advertising advocating for or against a candidate or measure. Any independent expenditure for radio advertising must also be reported by a PAC. As noted before, Idaho Code 67-6602(7)(b)(ii), Electioneering communication does not include: Any editorial endorsements or opinions aired by a broadcast facility not owned or controlled by a candidate, political committee, or a political party.  As such, we do not consider the broadcast to be a reportable contribution/in-kind to the candidate.

How was failure to report KIR radio time for candidates not a violation of sunshine laws?
-Per Idaho Code 67-6602(7)(b)(ii), Electioneering communication does not include: Any editorial endorsements or opinions aired by a broadcast facility not owned or controlled by a candidate, political committee, or a political party.  As such, we do not consider the broadcast to be a reportable contribution/in-kind to the candidate.

We responded to these answers by following up with an email providing the Secretary of State’s office with copies of the contracts. As these were paid programming shows that did not begin until the contract start date, and ended with the contract end date, they do not appear to fall under the description of “editorial endorsements or opinions aired by a broadcast facility” which the SOS referred to in the responses. No further communication has been received by the SOS. This article will be updated if Secretary McGrane’s office comments on the contracts provided to them.

Tom Luna was asked the same questions. His response was,

FYI

The show itself has not run afoul of either Sunshine Laws (campaign finance issues) or FCC issues.  There is no active investigation filed at the Idaho Secretary of State’s office and the FCC issue involves a media company, not the show or its hosts.

Former Idaho Attorney General and former Idaho Lieutenant Governor David Leroy was asked to comment on this matter. He replied,

“I AM UNAWARE OF THE DETAILS OF WHAT ALLEGED FCC FILING TECHICALITY MAY HAVE GIVEN RISE TO THIS DISPUTE. THE RESULTANT LOSS OF A REGULAR, INFORMATIVE, REPUBLICAN-ADVOCACY RADIO PROGRAM, BROADCAST DURING AN EXCELLENT SATURDAY MORNING TIME SLOT, ON A MAJOR BOISE AREA TALK-SOURCE STATION IS A TRAGEDY FOR THE IDAHO REPUBLICAN PARTY AND FOR ADA AND CANYON COUNTY CONSERVATIVE-VOTING CITIZENS. IF IT WAS BROUGHT ABOUT BY GOP PARTY INFIGHTING OR JEALOUSIES, THAT IS A DOUBLE TRAGEDY. THE ONLY WAY EITHER OF AMERICA’S MAJOR POLITICAL PARTIES CAN HOPE TO RESTORE THEIR FAST-DIMISHING RELEVANCE IN THE POLITICAL PROCESS IS TO PRESENT FACT-BASED POLICY CHOICES WITH ENOUGH CLARITY TO WELL INFORM ENOUGH CITIZENS WHO WILL THEN VOTE INTELLIGENTLY AND CONSISTENTLY FOR THOSE POLICIES. FOUR TO FIVE THOUSAND TREASURE VALLEY LISTENERS A WEEK LOST THAT DIRECT ACCESS TO INFORMATION WHEN KIDO WAS FORCED TO PULL “RED WAVE RADIO” OFF THE AIR. I SALUTE CO-HOSTS VICTOR MILLER AND TOM LUNA FOR THEIR ABLE EFFORTS IN PRESENTING A FINE SHOW, FOR AS LONG AS IT LASTED.”

Idaho Dispatch asked Attorney General Raul Labrador’s office for comment on this matter, but have not received a response to the inquiry.

Idaho GOP Chairwoman Dorothy Moon was contacted and asked for comment on this matter, but also has not responded to inquiries related to this.

In addition to the state level reporting requirements, there are federal reporting requirements for news outlets.

Radio stations are required by the Federal Communications Commission (FCC) to report these types of paid political programming right away. From this FCC rules sheet, political_programming_fact_sheet.pdf (fcc.gov), “These files must be posted within 1 business day from when the candidate has made the request to the station.”

“POLITICAL AD RECORD KEEPING

Broadcast stations, cable system operators, and satellite television and radio providers are required to maintain public inspection files, of which political files are a part. Political files contain, among other things:

• Information about requests for the purchase of broadcast time by or on behalf of legally qualified candidates
• Information about requests for the purchase of broadcast time by issue advertisers whose ads communicate a message relating to any political matter of national importance
• Information about free time given to legally qualified candidates for public office

These files must be posted within 1 business day from when the candidate has made the request to the station. Political files are available for public inspection in an online database hosted by the FCC. The public may access the political files of any broadcast station, cable system operator, DBS provider or SDARS licensee at: https://publicfiles.fcc.gov”

That information and more can be found at: Political Programming | Federal Communications Commission (fcc.gov)

As you can see here, KIDO did not upload these contracts to their 2021 FCC file until January 30, 2023

KLIX is in a similar predicament, as they did not upload these contracts to their 2021 FCC file until February 2, 2023.

AM Station KLIX – Profile Political Subfolder – FCC Public Inspection Files

Idaho Dispatch submitted a Federal Freedom of Information Act request for information regarding any FCC inquiry into KIDO and/or KLIX. We received this response:

As you can see, the FCC told us they have 155 records that match our request.

“With respect to non-public responsive records, staff in the Media Bureau searched its files and located approximately 155 records responsive to your request, which are withheld in their entirety pursuant to FOIA Exemption 7(A).”

However, the records are being withheld entirely from the public’s inspection because of exemption rule 7(A) which explains that information can be kept confidential if disclosing it would interfere with an investigation.

“…we have determined that disclosure of these records would:

(1) hinder the agency’s ability to control or shape this, and potentially other, investigations;

(2) enable persons or entities with relevant information to destroy or alter evidence; and

(3) reveal evidence or strategy in the investigation.”

Idaho Dispatch asked KIDO President Mike Owens for comment on this matter, but no response has been received.

Feature image courtesy of Red Wave Radio • A podcast on Spotify for Podcasters