This past week, the Supreme Court of the State of Minnesota dismissed a challenge by a bipartisan group of voters who sought to keep Donald Trump’s name off the ballot for the upcoming Republican Primary. The Petitioners based their suit on § 3 of the Fourteenth Amendment.
The Court ruled that nothing bars a political party from considering in a Primary Election someone who is actually ineligible to hold the office being sought. In essence, the court ruled that the suit was premature, and that the Petitioners could come back to court if Trump were to succeed in getting the Republican nomination.
A similar lawsuit remains pending in Colorado.
Although the Petitioners in Minnesota apparently did not make the argument, the issue of whether Trump is eligible is not premature, in light of the Political Broadcasting provisions of the Communications Act of 1934 and the relevant Rules and Regulations of the Federal Communications Commission.
Those provisions confer substantial benefits upon legally qualified candidates. For example, legally qualified candidates are entitled to Equal Opportunities, Lowest Unit Rates, and Reasonable Access to broadcasting facilities. Someone who is not a legally qualified candidate is not eligible for such benefits.
Pursuant to § 73.1940(a) of the FCC’s Rules:
A legally qualified candidate for public office is any person who:
(1) Has publicly announced his or her intention to run for nomination or office;
(2) Is qualified under the applicable local, State or Federal law to hold the office for which he or she is a candidate; and
(3) Has met the qualifications set forth in either paragraph (b), (c), (d), or (e) of this section.
Clearly, whether or not § 3 of the Fourteenth Amendment disqualifies Donald Trump from again becoming President speaks directly to the criterion set forth in § 73.1940(a)(2) of the Rules.
The Political Broadcasting Laws set up two windows during which candidates are entitled to Lowest Unit Rates. The first begins 45 days before a Primary Election. The second begins 60 days before a General Election. The Primary Season begins in January. The Iowa Caucus occurs on January 15; the New Hampshire Primary begins eight days later.
If a broadcaster receives a request or demand for air time from the Trump Campaign, and denies it on the basis of Section 3 of the 14th Amendment, and guesses wrong, the broadcaster could lose its license, or, at a minimum, face a stiff fine… especially if Trump is in a position to implement Project 2025 and bring the FCC under his direct control.
Alternatively, if a broadcaster receives a request or demand for air time from the Trump Campaign, and grants it, and a challenge to Trump’s eligibility succeeds, then the broadcaster could be seen as having conferred an unwarranted benefit upon, and thereby made a contribution to, the Trump Campaign, in violation of Federal Election Laws.
Broadcast licensees should not have to so gamble. Nor should Trump benefit from advantages conferred by the Political Broadcasting Laws if he is not entitled to do so.
At the heart of litigation such as the recently dismissed Minnesota lawsuit, and the still-pending Colorado lawsuit, is the question of whether Trump is a legally qualified candidate. It is also a determinative issue as to whether Trump is entitled to the substantial benefits conferred by the Political Broadcasting Laws. That issue should be decided now.