The First Amendment protects freedom of speech and of the press, with the goal of making sure that controversial and unpopular political speech can be expressed by all. That freedom is not limited to newspapers: Everyone has the same free speech rights whether you have access to a printing press or not.
That’s why the publication of The Idahoan raises some interesting but ultimately irrelevant questions. It was printed on newsprint and has the shape of a tabloid newspaper, but its look and shape really aren't the point: Its authors have the right to publish whatever they want, regardless of how it looks or reads.
But because it was produced and edited and funded by political committees, it also needs to follow the rules that apply to committees that get involved with influencing an election. That means they must disclose the cost and the source of the spending on that influence.
This episode has revealed, however, that Idaho law has a gap through which Giant Idaho Potato-sized exceptions can slip. The 2019 Legislature can easily plug this loophole.
The Idahoan was sent to households statewide in the weeks before the May 15 primary election. The 48-page publication advocated conservative candidates and issues, and promised to print again before the general election and before the Legislature to chart the conservative agenda of its editors/publishers, Patrick Malloy and Lou Esposito. At least $100,000 of the mailing’s costs came from Esposito’s Free Enterprise political action committee.
If The Idahoan were produced by an individual candidate or a party, its authors and publishers would have to meet the requirements of Idaho campaign finance law to disclose their spending. But unlike federal law, Idaho law does not address a publication that comes from a political committee.
“Although it appears that the Idahoan is controlled by political committees, Idaho law only tests for ownership and control by a candidate or a party,” wrote Deputy Attorney General Brian Kane. He suggests that Idaho Secretary of State Lawerence Denney “may want to consider an amendment to Idaho code” to rectify the “oversight.”
It’s the right of Esposito and Malloy to print and distribute whatever they want about Idaho politics. So people who greeted receipt of their copy of The Idahoan with “That’s illegal!” or “They can’t make it look like a newspaper!” or “They can’t do that!” are wrong. Of course they can do that.
The questions are: Are they a political committee? And should they have to comply with Idaho disclosure law?
The answers are: Yes they are, and yes they should.
Disclosure laws are intended to ensure that voters know who is attempting to influence an election, and where the money to do that comes from. Reputable newspapers ask the buyers of political ads to disclose their identities, in the same spirit of transparency; the people behind those political messages have to disclose in their reports how much they spent and where they got it. That’s also why you see fine print on the source of all those nasty TV ads.
We already know the publishers of The Idahoan, and they’ve already disclosed where some of their money came from. We also know, according to Betsy Russell’s reporting in the Idaho Press Tribune on other financial disclosure records, that TSheets co-founders Matt Rissell and Brandon Zehm donated $100,000 to the Free Enterprise PAC.
So we know some of what we need to know about the source of The Idahoan’s backing. Esposito said investors provided the other two-thirds. He should have to tell Idahoans who they are.
Why? The principle behind campaign finance law is that transparency is the one way to maintain trust and credibility in the system. Such laws are called sunshine laws because shining light on money and people is the best way to police our politics. Many recipients of The Idahoan won’t know and won’t care. But campaign finance law is predicated on the fact that those who do care do get to know.
So now it’s up to the Legislature to make a simple tweak to state code to ensure that our laws designed to guarantee transparency reflect that spirit. Let the sun shine in.