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Controversy regarding campaign
mailing to WBAI listener list

One candidate slate in the WBAI Local Station Board election has come under attack for their mass mailing of campaign materials to the WBAI listener mailing list as allowed by Pacifica. A smear campaign and a considerable degree of mis-information and misunderstanding has ensued. The materials below include misinformed posts of members of the interim Pacifica national board. The first post, from Pacifica national elections supervisor Terry Bouricius, explains the actual policy regarding such mailings.


As posted on http://wbai.org

From Pacifica national elections supervisor Terry Bouricius


The laws of California under which the Pacifica Foundation is organized, and the Bylaws themselves, guarantee any member the right to access the member list in some way for the purpose of communicating with other members about legitimate Foundation business such as elections. The recent campaign mailing to WBAI members was not endorsed, nor paid for by WBAI nor the Foundation. The Foundation provided the addresses in escrow to a mailing house, so that the candidates who organized the private mailing did not themselves see the mailing list, and the privacy of the members could be protected. Under the Bylaws, such private mailings are not regulated by the Elections Supervisors.

To assure that ALL candidates can communicate with the member/voters, the Bylaws also require that the Foundation mail a candidate statement from EVERY candidate with the ballot, and also assure equal access to air-time.

As I understand it, the Foundation consulted an attorney on the legalities of such private mailings, and there is case law in California dealing with an almost identical situation (a listener-sponsored radio station with some members wanting to mail to members) that creates clear precedent.



From: Stephen M Brown [List-Prog]
Date: Tue Jan 20, 2004 8:51 pm

Terry --

What you have written is useful and seems correct -- except for one thing. According to the time stamp, Dan Coughin sent his email to me requesting a disclaimer, not on January 10, but on January 9, which was 2 days after the mailing piece had been sent to press. I only received and read it on January and 11, which was 3 days after the mailing had been sent to press.

Steve Brown

Terrill Bouricius wrote:

I am pasting below an email I recently sent to the chair of the Foundation board (Leslie) in an attempt to lay out the story of what happened as best as I can determine in a calm way...


Since Dan is on vacation and may be unable to respond to the debate about the ListProg mailing and I have been sent copies of emails from all sides concerned with the List Prog mailing, I took it upon myself to assemble a chronology... If anyone has facts that counter or supplement these, that would be important to know. This is not an attempt to defend or criticize anyone...I just thought the sequence of events and the rules would be useful to understand. You can forward this to whomever you think is appropriate.
Terry Bouricius
1. On October 6, 2003 I initiated a discussion with the Executive Director, the Board Chair and the Board Secretary about how the Foundation wanted to deal with Article 12, Sections 4 and 5 of the Bylaws that allow any member to view and copy the member list for doing mailings. Since California law and the Bylaws require the Foundation to allow such mailings, there was a lot of email about a legal alternative to actual viewing and copying (such as providing a mailing list in escrow to a mailing house) in order to protect member privacy, and comply with other privacy rules. There was also discussion about whether a disclaimer should be required and what a disclaimer could include.
2. I do not know if there was discussion or any vote by the National Board about this issue or a requirement to use of a disclaimer. Since this is a Foundation issue that extends to areas unrelated to elections, the Elections Supervisors have no authority to establish rules governing this.
3. Before or during the time List Prog was preparing their mailing the Executive director asked me in a phone call if there was a requirement that a disclaimer be used. I said there was nothing in the Bylaws about disclaimers, and no election rule covered this, but that it seemed like a really good idea to have a disclaimer with any private mailing.
4. List Prog made their request for the WBAI mailing list in accordance with California law and Bylaws (I don't know the date).
5. List Prog asserts that Dan did not mention a requirement for a disclaimer during the period when the piece was being designed and printed. Dan sent an email on January 10 that requested that Steve Brown of List Prog use a disclaimer, using specific language.
6. List Prog asserts that this request was sent two days after, and received three days after, the piece had been printed and mailed.
7. In the opinion of the National Elections Supervisor the List Prog flyer is an obvious campaign piece that would not be easily mistaken for an official WBAI mailing (different name, different return address, critical of station practices, etc.), and since it is privately funded, would not violate any fair campaign provision or election rule in any event.
Terry Bouricius
Pacifica National Elections Supervisor
(802) 864-8382
Fax (443) 659-2399
56 Booth St.
Burlington, VT 05401

Post by Fred Nguyen - responses follow


Multi-Millionaire Attempts to STEAL WBAI LSB Election
Date: 1/16/04


Sisters and Brothers,

In an incident, which is symptomatic of the ugly battles raging at Pacifica, it was revealed yesterday, on Martin Luther King's Birthday, that the ListProg candidate slate had secretly obtained or purchased a list of WBAI subscribers and presumably spent tens of thousands of dollars to advertize its lackluster candidates directly to WBAI listeners using a mass mailing.

This act, which could not have been done without the great wealth of Mr. Steve Brown, a multi-millionaire who made his fortune, ironically, from a Direct Marketing business, is a somber reminder of the parallel and corrupting influence of money in American elections and politics and its destruction of the values of democracy.

It would appear that the the ListProg candidate slate, which promotes its platform as one of "progressive elections" has openly invalidated the only argument they had that they stand for fair elections, when the mass mailing they made is attempting to sway the voters with no opportunity for other candidates who are not sponsored by wealthy benefactors, such as Mr. Brown, to take advantage of those lists and the seemingly unlimited funding he makes available to them.

The ListProg slate was supported by Carol Spooner, who pushed for the rapid execution of the Pacifica bylaws late in 2003 and assured the Pacifica public that the democratic outcome of elections were a guarantee of the bylaws. At the time of this writing, Carol Spooner has not reacted to the furor created by the secret purchasing of listeners lists and the buying of elections.

As an activist who spent days and nights helping to take back WBAI and the Pacifica network from the corporate thieves, I feel betrayed and robbed of the promise of a radio network, which, we were led to believe would uphold the highest standards in its elections.

We have vowed to prevent the corporate practices of commercialism. Purchasing listeners lists when other candidates are not availed of those lists and cannot afford expensive mailings is both unfair to all candidates and listeners and an insult to the Pacifica network and its mission.

Therefore, I am asking all WBAI listeners to NOT vote for the ListProg slate candidates and election thieves.

Therefore, I am asking all listeners to contact Mr. Terry Bouricius, the national elections coordinator and Ms. Joy Williams, the WBAI elections coordinator and join me in demanding the immediate disqualification of the ListProg slate.


All together in struggle for justice.
Fred Nguyen
WBAI Sunday News
WBIX audio refugees in exile
WBAI East Asian Collective


Responses to Fred Nguyen post:

From: Evan Davis
Date: Fri Jan 16, 2004 5:25 pm
Subject: From the National Enquirer; Multi-Millionaire Attempts to STEAL WBAI LSB Election

That Fred Nguyen... always a barrel of laughs.

Even if any of what Fred claims has any truth to it the fact remains that the WBAI subscribers list is available free of charge to any WBAI member for any purpose deemed to be a legitimate function of membership ( like elections and mailing campaign material, etc.).

The only expense involved would be in UTILIZING ( not accessing) that list. In most cases Pacifica will work throiugh an intermediary ( a mailing house) and will provide the list to that bonded intermediary which then mails material on behalf of the client that Pacifica recognizes and so authorizes. Of course mailings like that are expensive. There are the printng and the postage and the mailing house charges to be considered. If the List Prog slate has managed to raise money for a full ( or more likely a partial) mailing then more power to them - and more power to you, too, Fred should you or your slate decide to do the same.

Evan Davis, mildly amused voting member of Pacifica [FSRN]


To: Don Rojas
From: Andrew Norris [WBAI LAB]
Subject: Nguyen and WBAI


Fred Nguyen has upped the ante in his libelous campaign against Carol Spooner and certain LSB candidates by signing off as a member of the WBAI News Department (below [posted above]). Apart from the facts that the fine reputation of the WBAI News team is sullied by association with Nguyen, and that Nguyen's extensive email campaign is symptomatic of the hate that is unfortunately part of the public image of WBAI, I am worried he is putting WBAI in a precarious position.

1) Nguyen's libel (e.g. "election thieves") could be cited in briefs with Judge Sabraw to invalidate the LSB election. While Nguyen has no standing before Sabraw's court, several of the people he libels do, as plaintiffs in at least two of the law suits. I am not a lawyer, but I worry that WBAI becomes liable through the actions of a "staff member".

2) More serious IMO is the possibility that Nguyen the "reporter" should broadcast his "investigative findings" as news. The position of the FCC on falsification of news is unambiguous:
As a public trustee, the broadcaster may not engage in intentional and deliberate falsification (distorting, slanting, rigging, staging) of the news. As the Commission stated in its ruling in Hunger in America, "Rigging or slanting the news is a most heinous act against the public interest - indeed, there is no act more harmful to the public's ability to handle its affairs." Therefore, the Commission does act appropriately to protect the public interest in this important respect where we have received extrinsic evidence of such rigging or slanting. For example, this kind of evidence could include testimony, in writing or otherwise, from "insiders" or persons who have direct personal knowledge of an intentional falsification of the news. (from the FCC).

Experiences in WBAI over the past six years leads me reluctantly to inform you of these possibilities, and I ardently hope that they remain that.



From: Mitch Cohen [WBAI area]
Date: Sat Jan 17, 2004 3:29 am
Subject: COMPLAINT against Fred Nguyen

Dear Don Rojas, Bernard White, and the News Department:

Fred Nguyen can post whatever garbage he wants -- it's his freedom of speech -- but here he signs this pack of lies and libel as "WBAI Sunday News," and "WBAI East Asian Collective."

Is Fred speaking here for WBAI Sunday News, and for WBAI East Asian Collective, as he makes it seem? Is this the position of the Sunday News and the East Asian Collective as Fred pretends? And if it is not, I urge that Fred Nguyen be informed that his so-called reportage are corrupting the good name and credibility of those groupings, and thus, his services as an "objective" WBAI news reporter are no longer needed.

Mitchel Cohen


From: Stephen M Brown
Date: Sun Jan 18, 2004 4:17 am
To: Terry Bouricius

Terry --

I understand that it is your impression that Dan Coughlin sent me an email before the LIST-PROG mailing went out, requesting that a disclaimer be included, and that he supplied the text of such a disclaimer.

This is not so.

He did indeed send me an email to that effect, but it was, according to the time-stamp, sent TWO DAYS AFTER THE MAILING WENT OUT, and actually received by me THREE DAYS AFTER THE MAILING WENT OUT.

I have this email from Dan in my possession, and can produce it with its time stamp. The disclaimer it contains is fine, and we would have gladly incorporated it in the mailing -- had we been asked to do so BEFORE the mailing went out. Unfortunately, at no time did Dan ever mention a disclaimer during our contacts with him during our process of getting permission to use the station's mailing list.

But the fuss is for nothing. For the flyer is full of "disclaimers" that we put in ourselves. It is impossible for any reader, no matter how casual, to think for a moment that this flyer was produced by the station, or that the station endorses the candidates pictured inside.

The flyer has a huge headline across the entire front page proclaiming that it comes from LIST-PROG -- not from WBAI. And the return address, also on page one, says LIST-PROG (not WBAI), and is NOT the address of the station.

Immediately inside, another huge reverse headline asks, "Who is LIST-PROG? And what kinds of candidates does it endorse?" It answers this question in the very next line, with these words: "LIST-PROG (Listeners & Staff for Progressive Elections) is a volunteer community organization created to endorse candidates and provide voters with information about the election." What could be clearer?

The flyer also attacks the station and its practices in multiple ways that make it obvious that it could not possibly have come from the station, and that the station could not possibly be endorsing these candidates. (A copy of the flyer is attached as a pdf file, in case you haven't seen it.)

In every way LIST-PROG has complied with the bylaws and the requests of the foundation. There was no impropriety in our mailing. Nor was there any "unfairness" due to "big money." This is a false and deliberately misleading accusation that has been published by Sheila Hamanaka, Fred Nguyen, and Paul De Reinzo -- and sadly accepted without examination by too many people.

To refute it, I will repeat once again the arithmetic as it relates to such mailings -- which, in LIST-PROG's case, was exactly the opposite of a "big money" mailing. In fact, the entire support group of LIST-PROG was appealed to for monetary contributions to make this mailing.

Further, all group members without exception were invited to participate in the creation of the mailing by editorial input via email. And approval of the final mailing (every word of it) was sought from the entire LIST-PROG participating group -- not simply by majority -- but by consensus!

This was a lengthy and tortuous process, as you might imagine. But well worth it. Indeed, could any process have been more democratic and in keeping with the spirit of Pacifica than this, embodying as it did a collective group effort in pursuit of collective group goals?

I challenge the JUC or Gary Null slates to match such an open and democratic process (which, as a personal note, I must confess was alien to my own predilection for individual action, for which I was often shouted down, overruled and metaphorically hog-tied for weeks at a time during this process).

But what about the "money" -- was such a mailing really beyond the reach of the other slates, as they have claimed? Here is the arithmetic. Any group could have sent out a mailer identical to LIST-PROG's and mailed it to every voter in the database at WBAI's non-profit rate -- for under $4,500.

Could the Justice & Unity slate and the Gary Null slate afford such a mailing? Let us see.

The JUC slate claims to have "hundreds [of] dedicated supporters." Even if they had only as few as 200 supporters, and appealed to them for donations for a mailing (as LIST-PROG appealed to its own supporters for funds to make our mailing), the per capita cost to JUC supporters would be -- only $22.50 each. Surely not the "rich man's" mailing they are crying about.

What about the Gary Null slate? Three years ago, the mailing list of WBAI listeners who are customers of Gary Null, a list built up during Gary's 30 years of broadcasting over WBAI for an hour every day, five days a week, numbered about 11,000-12,000. (Now it is probably much bigger.) But if even only 11,000 of them divided up the mailing, its cost would be (ready for this?) -- only 27 cents per supporter on a per capita basis! "Rich man's mailing"?

Who are they kidding when they complain about our "buying the election"? The fact is, the other slates didn't think they would need to use direct mail -- since the JUC had the name-recognition of an incumbent national board member actively campaigning for their slate, plus the "star-power" of numerous WBAI radio hosts campaigning for them at various events.

And Gary Null has a huge website, getting hundreds of thousands of hits, on which he vigorously promotes his slate, and a large mailing list of WBAI listeners to whom he mails frequently and to whom he may also promote his slate. (This is really the "big money" in the campaign -- I mean, it costs a fortune to put up and maintain the Null Website, yet his candidates get constant and prominent campaign space on it free of charge. Why no complaints about that bit of "unfairness"?)

Both the JUC and Null slates thought they would overwhelm LIST-PROG -- the JUC by its candidates' name recognition, and Gary Null by money and website outreach -- because LIST-PROG is composed primarily of virtually unknown listeners, without name recognition.

Moreover, LIST-PROG candidates had no chance to become better known to the voters -- other than by using the mails -- because the station and the election committee failed to hold meet-the-candidate events as promised, and also failed to provide adequate on-air time for candidate presentations (they gave us each just a single 40-second spot, stringing one candidate statement right after another in an indigestible block of air time, with barely enough time to spout our names, let alone say anything memorable or meaningful).

The other slates had the legal right to use the station mailing list, just like LIST-PROG. They also had the opportunity. And -- as I have shown above -- they could easily have afforded to send out mailings identical to LIST-PROG's. The only thing they didn't have was the commitment to do the hard work of preparing such a mailing, and do outreach to their supporters on a one-to-one basis in order to raise the relatively small contributions that would make such a mailing possible.

They didn't do it, and now they regret it. And hope that Pacifica's management will spend the listener's money to do for them what they didn't have the commitment to do for themselves. Shame on them. And shame on Pacifica if it is bamboozled by their dishonest protestations. Their complaints have less to do with a plea for justice than with plain old sour grapes.

Steve Brown

Stephen M Brown

Post from Sheila Hamanaka , WBAI area

From: sheilahamanaka
To: terry,ipnb,JOY WILLIAMS
Cc: rocklandfriendsofwbai@yahoogroups.com
Sent: Friday, January 16, 2004 10:59 PM
Subject: FW: Multi-Millionaire Attempts to STEAL WBAI LSB Election

Dear Mr. Bouricius

No doubt by now you have gotten word of this unfair campaigning by the privately endowed List-Prog slate. (See letter below from Mr. Nguyen [posted above])

I find it ironic that you have chosed to disqualify Father Lawrence Lucas for "unfair" campaign practices while allowing List Prog's access to money to gain them an advantage over grassroots or individual candidates who can't afford to do mass mailings. Doesn't this remind you of the struggle in the United States over fair campaigning, in which the wealthiest gets the most access to the voter? Why are there no provisions for equal funding for candidates to do mailings? In reality, the print medium holds the advantage over "on air time" as a form of advertisement when the average listener has only heard a small fraction of the candidates.

Indeed, we are witnessing institutional racism, in which a wealthy white male candidate, Mr. Steve Brown, gains advantage over representatives of poorer communities of color. Meanwhile an individual who has spent his life serving the people instead of developing a for profit business is booted off the ballot for doing what an activist should.

Perhaps you will argue: "Everyone has equal access to the mailing lists of the stations." But is this in fact true? How many candidates have a spare ten thousand dollars in their pockets to pay for the printing and postage?

Considering the poorly and inadequately organized election campaign, in which voters got to hear candidates for perhaps five minutes each -- and that only if they happened to be sitting in front of their radios at the odd hour here or there, I think the disqualification of the LIst Prog slate for unfair campaigning is a reasonable and justifiable demand.

Please respond

Sheila Hamanaka
Co-chair, Rockland Friends of WBAI


Reply from Pacifica elections supervisor:

From: Terrill Bouricius
To: sheilahamanaka,ipnb,JOY WILLIAMS
Cc: rocklandfriendsofwbai@yahoogroups.com
Subject: Re: [rocklandfriendsofwbai] Multi-Millionaire Attempts to
Date: Sat, 17 Jan 2004 08:00:20 -0500

Dear Sheila Hamanaka,

Most of us would prefer that a genuinely level playing field could be maintained so that access to private money was not a consideration in the Pacifica election. Unfortunately, the laws of California under which the Pacifica Foundation is organized, require that the Foundation allow any member to view and copy the member list for the purpose of communicating with other members about legitimate Foundation issues. As an alternative the law allows the Foundation to provide the addresses in escrow to a mailing house, so that the candidates do not themselves see the mailing list and the privacy of the members can be protected. The effect of the law covering nonprofits, such as Pacifica, is that the Foundation must allow candidates to do direct mail. The station mailing lists (through a mailing house) are available to all candidates, but obviously, this is an option that only those with enough money can actually utilize for a private mailing. As a partial equalizing counter to that, the Bylaws also require that we mail a candidate statement from EVERY candidate (regardless of wealth) with the ballot, and also assure equal access to air-time.

Direct mail is not an area governed by the Election Supervisors but is a right of membership under California law. Dan Coughlin is the Executive Director of the Foundation to whom any demand for access to the mailing list would need to go. In order to protect member privacy the law allows the Foundation to provide an "alternate means" for satisfying the member's goal. In this case that alternate method was to provide the mailing list in escrow to a mailing house so that the lists themselves remain private.

As I understand it the Foundation did consult an attorney on legal options and there is case law in California dealing with an almost identical situation (a listener-sponsored radio station and some members wanting to mail to members) that creates clear precedent.

A future Bylaws amendment might have the Foundation make reasonable efforts to match the direct mailing done by individual candidates on behalf of any other candidates not included in the private mailing. That would help level the playing field -- primarily by making private direct mail not worth the money -- since the opponents would then get matching mailing for free.

Terry Bouricius
Pacifica National Elections Supervisor
(802) 864-8382
Fax (443) 659-2399
56 Booth St.
Burlington, VT 05401



From: Roger M [editor of this website, wbai.net]
Date: Mon Jan 19, 2004 12:50 pm
Subject: Level playing field?

People forget, and newcomers may be unaware, that despite the fervor over the WBAI List-prog slate's ability to fund a mass mailing, it is the WBAI Justice and Unity slate who represents the status quo at WBAI.

J & U is organized by people from the WBAI "unity caucus", a group that has included and had the support of various WBAI board members, staff and management, including the WBAI program director and others prominent in WBAI programming.

WBAI's LSB elections coverage is far from adequate and certainly lacking in enthusiasm. Lesser connected outsiders must turn to other means such as mass mailings if they are to become familiar to the listeners. Many of us know what that's like - to struggle to reach the listeners without the use of the airwaves at WBAI/Pacifica.

J & U have recruited some impressive candidates who are new to all of this... [endorsement subject matter removed ...]

Roger M, NYC

Posts by iPNB Chair Leslie Cagan:

Below is Leslie Cagan's innitial post regarding the mailing issue followed by responses and then Cagan's post upon becoming more informed on the details.


From: Leslie Cagan
Date: Sat, 17 Jan 2004 12:34:22 -0500

To: Terrill Bouricius, JOY WILLIAMS, danc@p...
Cc: sheilahamanaka, ipnb, rockland
Subject: privately paid for mailing to WBAI list

Dan, Terry and Joy,
I appreciate Terry's quick response to the concern raised by Sheila Hamanaka, and the clarity of the information you provided. At the same time, there is a very serious problem here: there was no disclaimer anywhere on the mailing sent out by the LIST-PROG candidates. It is my understanding that if any candidate, or slate of candidates, does a mailing they have to include a statement indicating that the mailing was paid for privately, not with station or foundation funds, and that this mailing does not constitute support for these candidates by the station or foundation. I spoke with Dan about this issue just yesterday and was assured that a disclaimer had to be included in any privately paid for mailing. When I got home last night and saw the mailing from the LIST-PROG slate I was shocked and outraged. How is it that a policy about including a disclaimer does not get executed? Whose responsibility was it to make sure any such mailing included a disclaimer? Was anyone supposed to review the mailing content before it was sent out?

Most importantly, now what happens? I am certainly open to hearing other suggestions, but my thinking at this moment is that a mailing should be sent to all WBAI listener-members with the list of ALL the other candidates...and NOT the list-prog slate. Because this is a long list of candidates I do not think it can include the photos of each person or a lot of explanation of what their positions are, but a sentence or two from everyone could be included. Further, I believe the list-prog candidates should be asked to pay for the cost of this mailing. But if they refuse (and I don't see how we can make them cover the cost) then the station should pay for the mailing. Most importantly, this needs to happen quickly....the mailing should be prepared this week!

I hope this does not happen again, either at WBAI or any of the other Pacifica stations. It is bad enough that a candidate or slate of candidates that has money gets this unfair advantage over others, simply because they have money. To not take every step possible to make sure the disclaimer is included...well that is simply wrong and a violation of our own process.

Please let us know immediately what steps are being taken in this matter.
Leslie Cagan


Responses to innitial Cagan post:

From: Mitchel Cohen [WBAI area]
Date: Sat Jan 17, 2004 4:59 pm
Subject: Leslie Cagan denounces LIST-PROG mailing
To: lesliecagan@i..., danc@i..., tbouricius@v... Dear Leslie (and Dan, and Terry),

I strongly disagree with Leslie's post. The mailout CLEARLY states that this is from a private group called LIST-PROG. It says this right on the front of the mailing:

"LIST-PROG (Listeners & Staff for Progressive Elections) is a volunteer community organization created to endorse candidates and provide voters with information about the election. ... These are the candidates endorsed by LIST-PROG.

The mailout clearly says "from Listeners and Staff for Progressive Elections (LIST-PROG)"

What's yer problem with that?

You are way way way over-reacting. In fact, I don't get what you are reacting against.

Fact is, LIST-PROG has held numerous commmunity events all over the listening area at which we've openly raised funds to do the mailing. The candidates have chipped in and divvied the costs. All candidates and slates could STILL send out a mailing if they get it together to write the necessary request (one sentence long ... lotta work there, eh?). Why haven't they?

The fact that others chose NOT to hold community events, couldn't get it together to raise funds for literature or mailings, is not the fault of those who take listener democracy and transparent governance at WBAI seriously.

By the way, I was PERSONALLY in communication with Dan Coughlin to find out about how to do this process on behalf of LIST-PROG several weeks before the mailing went out, and at NO TIME was I told the mailing needed to have any sort of disclaimer on it. Even so, we thought it best to clearly spell out, as we did, that List-Prog is a volunteer community organization making its own endorsements and running its own candidates.

Mitchel Cohen


From: Chris Farrell [List-Prog]
date: Mon Jan 19, 2004 11:55 pm
Subject: An Open Letter to Leslie Cagan

An Open Letter to Leslie Cagan, the Pacifica National Board, and Listener-Members of WBAI

Listeners and Staff for Progressive Elections (List-Prog) recently mailed a campaign flyer to all listener-members of radio station WBAI (99.5 FM in New York City). The flyer encouraged members to vote in the historic election that gives them the opportunity, for the first time ever, to choose members of a station board with oversight of management and budget at the station, which is part of the Pacifica Foundation. It also endorsed particular candidates in the election and took positions on issues crucial to the future of WBAI and Pacifica.

Pacifica's bylaws contain specific provisions guaranteeing the rights of members to distribute such literature to station donors, and List- Prog complied with the procedures developed by foundation executive director Dan Coughlin. In a response to an inquiry from a listener, national elections supervisor Terrill Bouricius confirmed that the mailing conformed with Pacifica's fair campaign provisions. Despite this, emails from members of Pacifica's National Board have been published as attacks on List-Prog candidates that threaten to unfairly influence the election.

In an email to Bouricius (sent also to an individual listener and an online listserv), Pacifica National Board chair Leslie Cagan wrote that she was "shocked and outraged" when she saw the List-Prog literature because it did not contain a disclaimer "indicating that the mailing was paid for privately. . . and that this mailing does not constitute support for these candidates by the station or the foundation." The email has now been posted on WBAI's own website. The damaging implication here is that List-Prog was responsible for that failure to include the disclaimer.

If Cagan's email had been restricted to Bouricius, Coughlin and local elections supervisor L. Joy Williams, she could have gathered the facts to refute the implication before her uniformed comments were widely circulated, potentially corrupting the entire elections process. Cagan failed to consider several important points.

1. The mailing clearly indicated it came from List-Prog, not WBAI or the Pacifica Foundation. The banner headline reads "WBAI Election Alert from Listeners & Staff for Progressive Elections (LIST-PROG)." In a section headlined "Who is LIST-PROG?" the group is identified as "a volunteer community organization created to endorse candidates and provide voters with information about the election." And the flyer contains the return address for List-Prog, not for the station or the foundation.

2. Coughlin provided List-Prog representatives a procedure for use of Pacifica's list of WBAI's listener-members, and List-Prog complied fully with Coughlin's instructions and the Pacifica bylaws.

3. Cagan expected Coughlin to provide List-Prog with specific language stipulating that the mailing was not from WBAI. But in weeks of communication between Coughlin and List-Prog representatives, he never raised this issue, only requesting the disclaimer and providing the language in an email sent two days after the mailing was initiated. It was Coughlin who supplied the list of names directly to the mailing house instead of to List-Prog, a procedure developed to safeguard the privacy of WBAI's members. He should have been aware when he sent the email requesting the disclaimer that it was too late to include it.

4. Potential candidates were given information regarding fair campaign provisions at the beginning of the elections process by local elections supervisor L. Joy Williams. There is no requirement for a disclaimer on campaign mailings.

Why did List-Prog send the campaign flyer to WBAI's members? The provisions of the election require that 10% of the station's members must return their ballots, or the election will be invalidated. That will leave WBAI listeners without representatives on the board charged with approving the station's budget, selecting and evaluating candidates for management positions, and insuring that programing meets the needs of the community. Instead of actively promoting the elections and giving listeners a chance to evaluate the candidates through on-air forums, WBAI has limited appearances by candidates to sound bites that don't allow for substantive discussion of the challenges facing the station. List-Prog decided to take the initiative, supplementing the limited resources offered by the station with a direct appeal to listeners. Now we find ourselves blindsided by a response from the board chair that is being used to denounce List-Prog's candidates.

Cagan's response also includes a suggestion to the elections supervisor that he circulate a supplemental mailing to WBAI's listeners (at the foundation's expense) including information on all candidates except those endorsed by List-Prog. This would clearly violate the foundation's bylaws, which specifically forbids foundation resources being used to benefit some candidates and not others. It would invite lawsuits that might bankrupt Pacifica, and quite possibly invalidate the entire elections process.

It would be improper for Cagan to endorse the List-Prog slate, whether explicitly or implicitly. However, because her statement contains an implied condemnation of the group, it would be appropriate for her to apologize for her clear implication that List- Prog candidates violated either the letter or the spirit of Pacifica's fair campaign provisions. She should acknowledge that the group acted throughout in accordance with the foundation's bylaws, that her characterization of the mailing was misleading, and that any failures in regards to List-Prog's use of the membership list were those made by paid Pacifica staff.

Please contact Pacifica National Board chair Leslie Cagan and other members of the Pacifica National Board and urge them to restore equity to the elections process. Please also contact WBAI General Manager Don Rojas and Program Director Bernard White to request continuing expanded coverage of the election that includes all the candidates.

(You can find email contacts for the Pacifica National Board at http://www.pacifica.org/about/board.html. Don Rojas: drojas@wbai.org Bernard White: bwhite@wbai.org Or call the WBAI switchboard at (212) 209-2800. List-Prog's campaign flyer is online as at www.list- prog.org .

Chris Farrell
List-Prog candidate

Apology and clarification: Cagan's later post

From: Andrew Norris [WBAI LAB]
Date: Tue Jan 20, 2004 8:54 am
Subject: apology and clarification

(just received from Leslie Cagan)

Please feel free to share this with others.

In the last few days I have heard from quite a few people individually, or through postings on various lists. As always, I have been glad to hear from folks about an important issue. While I hope to respond individually I also wanted to send this message to all of you, and make it available for anyone else who is interested.

First, I offer my apology to any individual or slate of candidates my recent email might have offended. I certainly did not mean to undermine anyone's efforts to be elected to the WBAI Local Station Board. I regret that my deep concerns about how policies are implemented...or not...led me to put forth a suggestion that was untimely at best. The national elections supervisor has responded to my hasty proposal and explained why it does not make sense, and so I have dropped that idea.

I also want to clarify several of my concerns:

(a) As I've already stated, I am most concerned with how policies are carried out, either those put into place by the national board or by the executive staff. I was informed that there is indeed a policy regarding the inclusion of a disclaimer in any privately funded email. I am still gathering information about when or if this policy was actually communicated to all of the candidates. (I have heard from some of the players involved in the mailing, but not all.) Policies are only useful if the people they are intended for are told about them. If there is a policy in place but people have not been informed...well, obviously they cannot be responsible for not implementing that policy.

(b) The policy to include a disclaimer in any privately paid for election materials is important. It is a standard election requirement that materials clearly indicate who paid for them. Contrary to what some people are saying, I do not believe it is possible to know with certainty how every individual reading any specific piece of literature will understand or interpret what they are reading. In the interest of complete disclosure and fairness it makes sense to me that any piece of campaign literature that is paid for privately should indicate just that.

(c) My initial message has apparently been circulated far and wide, and at times has been used to promote points of view that are not mine. This practice, unfortunately, is not new in the Pacifica community and I wish something could have been done a long time ago to stop it. In this instance, I should have indicated in my original memo that it was not to be forwarded or circulated. But to be honest, I am not sure that would have stopped everyone anyway.

(d) I in no way meant to prejudice the elections. My concerns are about process, about full and timely implementation of policies, about fairness and equity.

Finally, these elections are very important, especially since this is the first time we or any other national media outlet has done this. I hope all eligible voters will cast their votes. (Here in NYC some eligible voters have still NOT received their ballots and I hope this problem is being dealt with.) We are on the verge of democratically electing the governance bodies for the five stations and the foundation. In the next two months there will be a transition out of the interim period of Pacifica and into the new structure. This is an exciting and important process and I look forward to its successful completion.

Leslie Cagan

Posts from iPNB member Dave Fertig (KPFA area) followed by a response and then a revised Fertig statement


From: David R. Fertig
Date: Sat, 17 Jan 2004 15:19:52 -0600
To: Terrill Bouricius, Leslie Cagan, JOY WILLIAMS, Dan Coughlin
Cc: sheilahamanaka, ipnb, rocklandfriendsofwbai@yahoogroups.com
Subject: Re: privately paid for mailing to WBAI list


Following up to my prior post with suggestions (written before I saw yours below, but which I still stand by) :

I would suggest you do have authority to address instances of mis-use by candidates of Pacifica resources, e.g., mailing lists.

The use of a website with a WBAI logo or prominent placement of call letters or other indicia, for example, especially without disclaimers, would be clearly improper. I feel use of our mailing list without a disclaimer is no less significant - indeed, perhaps moreso.

And even if no disclaimer was expressly required, I wonder to what extent the campaign piece seemed to look official, and thus was effectively misleading to voters? If it is determined that voters were substantially misled, that should serve as grounds to compel candidates to choose remediation or disqualification.

And could someone send me a copy of what was mailed? Thanks!

-Dave Fertig


Response to Fertig:

From: patty Heffley [List-Prog]
Date: Sun, 18 Jan 2004 02:26:58 -0500
To: Dave Fertig
Cc: ipnb@pacifica.org,JOY WILLIAMS,Dan Coughlin,Don Rojas
Subject: LIS-PROG flier information

the flier if you haven't seen it is available at http://www.list-prog.org

You should be ashamed of yourself attacking us without even knowing what we sent out as you have admitted to in the letter below.

You as a lawyer shouldknow better.

If WBAI did its job there would be no need to inform the listenership of who we are because we would have had ample airtime like at KPFT. Instead we had 3 minutes to tell the world who we were and we got to answer questions between 4 of us for the next 20 minutes.

If in fact Bernard White and Don Rojas took the elections seriously and dare i say Pacifica as well (by mailing the ballots first class) we wouldn't have had to take up a collection to do the job that you all should have been doing.

List-prog held 6 events in the ny area to get nominations sheets signed, and then to host meet the candidates, OpenTo All- paid for by us and donations.

I have a legal right to speak to my fellow members in any way except on the air or on official websites.

Even wbai.net has not endorsed me- patty heffley - the owner of the site.

We have followed the rules through and through.

I will leave the disclaimer part to the people with the facts.

I doubt that the flier has been misconstrued as "official". The flier criticizes WBAI management - something that they don't even do constructively themselves.

by the way I DIDN'T GET A BALLOT but i did get my LIST-PROG mailing showing the address is correct- so i am not even eligible to get a replacement if it never comes!!

Who is worrying about my rights as a listener member to make sure i get to vote?

you all should be worrying about that.

Patty Heffley


New statement from Fertig

Date: Tue, 20 Jan 2004 09:35:57 -0800
From: Dave Fertig
Subject: Re: privately paid for mailing to WBAI list

Please distribute as you see fit:

To whom it may concern:

I sincerely regret that any of my recent comments have been mis-construed as a condemnation of the List-Prog Candidates or an assertion that I (or Pacifica) have determined the List-Prog slate mailer to have been in violation of any rules.

I have made no such determination, and my preliminary statements of concern have been apparently interpreted as a broad and substantive criticism of List-Prog and its candidates, when the remarks were intended simply as cautionary observations upon process, criticism and suggestions of remedies in case of violations.

Many of the List-Prog slate members, like many other candidates for the WBAI LSB who are not affiliated with the List Prog slate, are no doubt fine candidates who have demonstrated a strong and effective commitment to productive work for the Foundation, and should not be stained by any intemperate remarks or inferred accusations attributed to me.

While I also regret there was no statement in the List-Prog mailer indicating who paid for the mailing, nor an express and pronounced disclaimer as to WBAI or Pacifica sponsorship, I also acknowledge that there appears to have been - at the time - no rule in effect specifically requiring financial disclosure (I have still not heard from Executive staff so I can't say unequivocally), and the leaflet was, after my initial comments, officially construed by the Elections Supervisor to have sufficient disclaimers.

But my suggestions of remedy in the event of a violation do stand, I think they are sound. These would apparently not apply in the event such a rule had not been properly established at the time a mailer was sent.

I would prefer candidates focus upon the salient issues facing Pacifica, and the candidates' own experience and demonstrated commitment to Pacifica and their ability to work with others democratically and collegially. Criticism around the electoral process is fair fame, but it should not be made into a game.

Indeed, the election must be as fair as we can finally make it, so long as we finally make it.

-Dave Fertig

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