The Blatant Hypocrisy of Campaign-Finance Regulations

If Citizens United is a problem, so is The New York Times.


The New York Times has been roundly and deservedly mocked for its shocking expose of Marco Rubio's run-ins with the law. According to the story, the Florida senator and his wife have "had a combined 17 citations" for traffic violations over the past two decades. A whopping four of them were his.

Lumping the two of them together to produce a bigger number invited parody, which Twitter supplied in abundance ("as a group, Marco Rubio and Colombia are responsible for 90 percent of the world's cocaine production"). So did dredging up old driving offenses, which led wiseacres to wonder what other skeletons are hiding in Rubio's closet: tearing the tags off old mattresses, maybe? Finally, the story drew comparisons to Chappaquiddick, in which Sen. Ted Kennedy drove a car off a bridge and left behind campaign volunteer Mary Jo Kopechne to drown. "If Rubio would just go ahead and kill someone with his bad driving, maybe they'll call him the 'Lion of the Senate' one day," tweeted Mark Hemingway, a writer for The Weekly Standard.

But wait—this is not even the most embarrassing part. An enterprising reporter for the Washington Free Beacon dug around and discovered that American Bridge, a liberal PAC, had pulled up the Rubios' traffic histories shortly before the Times story ran. The Times insisted that it had not relied on Democratic opposition research and had thought up the story all by itself. But the paper's ombudsman conceded that the issue also had come up before, regarding reporting on the Clinton cash machine, as well as in a story about one of the Koch brothers, for which American Bridge also supplied a key detail.

And that leads us to an interesting question about campaign finance law.

Like any self-respecting liberal outfit, The New York Times thinks the Supreme Court's ruling in Citizens United was an atrocity. The case revolved around whether the government could forbid an incorporated group, Citizens United, from broadcasting a movie critical of Hillary Clinton in the days leading up to an election.

Given the obvious free-speech implications—could the government also ban a book? yes, said the government's lawyer—the high court ruled that the law being challenged violated the First Amendment. Even dissenting Justice John Paul Stevens conceded "we have long since held that corporations are covered by the First Amendment," but he thought the campaign finance law being challenged should take precedence.

That law was the 2002 Bipartisan Campaign Reform Act, which prohibited "electioneering communications"—those supporting or opposing political candidates—by corporations and labor unions 30 days before a primary and 60 days before a general election. But it contained a whopping exception for the media, by exempting electioneering communications "appearing in a news story, commentary, or editorial."

The exception amounts to a confession of what those who condemn the influence of money in politics deny: that campaign-finance laws infringe on freedom of speech and the press. After all: If they did not do so, then there would be no need for an exception. Proposals to amend the Constitution to overthrow Citizens United also contain specific exceptions for the media.

The question is: why?

Reformers do not like "outside groups" horning in on political contests.

Indeed, just the other day Bernie Sanders said he thought it was "totally absurd" that "anybody can start a super PAC on behalf of anybody and can say anything" about a political candidate. Well, who says more about political candidates than the media do? Why should they be allowed to do so, when other corporations—such as Planned Parenthood, the NRA, and the League of Conservation Voters—should not?

The New York Times has an answer: Because we're special. "It is not the corporate structure of media companies that makes them deserving of constitutional protection," the newspaper proclaimed in a 2012 editorial. "It is their function—the vital role that the press plays in American democracy—that sets them apart." Unlike dirty little interest groups and super PACs, the media are the lofty facilitators of a grand national conversation. They are, as the High Court said in New York Times v. Sullivan, the embodiment of America's "profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open."

Contending that open debate requires shutting down all non-media corporate voices is an oxymoronic non sequitur. But never mind that. The Times' recent story on Rubio's traffic tickets exposes how very un-special media companies are.

The newspaper simply used its megaphone to parrot a talking point crafted by a liberal interest group. Its functional role was no different than the role played by American Bridge. Both of them shared information that might shape voters' opinions about a presidential candidate. (And likely for the same reasons.) Just as it did by reporting on the sometimes sketchy financing of the Clinton Foundation. And when it reported on a possible affair between presidential candidate John McCain and a lobbyist.

The Washington Post has done similar things, as when it reported that Mitt Romney was a bully in high school and that Rick Perry used to go to a hunting camp where a racial epithet was painted on a rock. And those newspapers are, ostensibly, objective.

Other media—from Salon to National Review—are proudly partisan, and can have just as big an impact on elections. Remember: It was the left-wing Mother Jones that released the infamous video of Romney talking about the "47 percent." How did it obtain the video? According to a subsequent tick-tock, "Early on in the election season, Mother Jones had made a decision to look closely at Mitt Romney's record as a businessman"—and, well, one thing led to another.

So Mother Jones was digging up dirt on politicians to share with the public, just like other media and political organizations. It also released the 47-percent video on Sept. 17, 2012, well within the 60-day cone of silence imposed by campaign-finance laws. In short, it did exactly what the group Citizens United wanted to do with its Hillary Clinton video.

Nobody has been able to articulate a logically coherent reason to explain why some corporations should be allowed to spread information about a candidate while others cannot.

If campaign-finance reformers want to stop corporation electioneering communications, then they should start with the biggest incorporated communicators of all: the media. Force them to stop making endorsements, disclose their subscriber lists, file reports with the FEC—the whole lot. If they aren't willing to do that (and let's hope they aren't) then they should leave everyone else alone.