Few ideas infuriate your garden-variety American liberal more than the idea that restrictions on campaign finance infringe on the First Amendment. "Money isn't speech!" he yells. And nowhere is that sentiment more strongly held than among the indigenous species of the American media landscape, who have far more at stake in the debate than they realize, as two recent developments show.
Last week the Supreme Court declined to hear a case brought by A-1 A-Lectrician, a modest family electrical company in Hawaii that sponsored some political advertisements back in 2010. The ads were the typical cri de couer of the average Joe ("THE REPRESENTATIVES WE PUT INTO OFFICE DO NOT UNDERSTAND THE IMPORTANCE OF THE VALUES THAT MADE OUR NATION GREAT. THE GREATEST OF THESE VALUES IS AN ALOHA FOR OUR FELLOW MAN. REPRESENTATIVES SUCH AS BLAKE OSHIRO AND OTHER REPRESENTATIVES DO NOT SHOW THE ALOHA SPIRIT IN THE WAY THEY DISRESPECT THE LEGISLATIVE PROCESS AND THE PEOPLE"). But because CEO Jimmy Yamada spent $9,000 on the ads, he fell afoul of Hawaii law, which requires anyone spending $1,000 or more to influence elections to register as a PAC, with all the attendant bureaucracy that entails.
This is interesting, because the ads Yamada took out appeared in the Honolulu Star-Advertiser. Yet if the very same words in Yamada's ad had appeared instead as an editorial in that newspaper, they would have been exempt from oversight by Hawaii's government, even though the newspaper, like the electrical company, is a for-profit corporation.
There is no functional difference between the advertisement and an editorial or op/ed column. There is no financial difference, either: Both cost a lot of money to distribute. Which makes you wonder why campaign-finance regulators haven't gone after the press.
Actually, they have. Back in 1980, Reader's Digest underwrote a computer re-enactment of the car accident at Chappaquiddick that killed Mary Jo Kopechne and ruined Sen. Ted Kennedy's presidential prospects. The video was for a February issue examining the accident, both of which Reader's Digest sent to other media outlets. This elicited a complaint to the Federal Election Commission, which then launched an investigation into whether Reader's Digest had violated federal campaign-finance laws by making corporate expenditures to influence the 1980 election.
Reader's Digest took the FEC to court. Fortunately, federal district judge Pierre Leval yanked the FEC's leash. The Federal Election Campaign Act and its amendments, he noted, contained an exemption for the press that "commands the FEC not even to investigate" media companies for going about their regular business (although he allowed that the FEC was within its authority to investigate whether the press exemption is applicable).
And so a happy end to this tale, right? Not entirely.
First, remember that the FEC considered itself justified in launching such an investigation in the first place. Had the agency gotten its way, endorsements, op/ed columns, investigations into Hillary Clinton's email or Marco Rubio's personal finances, all could be subject to long and costly FEC scrutiny.
What's more, the FEC has not outgrown its instinct for overreach. Earlier this year the agency considered a complaint from Level the Playing Field, a nonprofit, and others (including the Libertarian National Committee, which should know better). The groups wanted the FEC to make the Commission on Presidential Debates include third-party candidates. The FEC ultimately rejected that demand. But in doing so, it relied on some dubious authority.
The particulars are laid out at length in a concurring statement by one of the agency's commissioners: Lee Goodman, a Republican (and former legal counsel to the Virginia GOP) who has sparred energetically with Democratic chairman Ann Ravel. Goodman notes that in years past the FEC has sought to dictate how news organizations conduct political debates. It has contended that while the press exemption in campaign-finance law allows media organizations to "cover" a debate without any government oversight, that exemption does not allow them to "stage" debates with equal freedom: "The news story exemption was not intended to permit the staging of candidate debates, but rather is a limited exemption designed to insure the right of the media to cover and comment on election campaigns."
Moreover, the commission has contended that those who stage debates must use "pre-established objective criteria to determine which candidates are allowed to participate," and even has suggested it can regulate "pre-debate or post-debate commentary and analysis." And from time to time, the FEC has in fact received complaints seeking to force media institutions to change their debate rules. In each of those cases (including the recent one) it has declined, on the grounds that the media company was acting in compliance with FEC regs, which is a far cry from declining on the grounds that it has no authority over the press in the first place.
Goodman contends this is wrong: Both federal law and, more importantly, the First Amendment deny the FEC any authority over how the media conduct debates. So, he argues, the FEC should edit its regulations accordingly. Amen to that. Yet if anything, some FEC commissioners seem inclined in the opposite direction, and have raised the possibility of making debate rules more stringent.
Were the commission to do so, it probably would have many allies of convenience. Earlier this year, for instance, Republican presidential contender Carly Fiorina complained about CNN's debate criteria. A CNN official responded that "Federal Election Commission guidelines make it clear that these criteria cannot be changed after they have been published." Not everyone was so sure. One prominent election lawyer told The Hill, "there is a strong legal argument that CNN can modify criteria as long as they remain objective."
Hang on. Objective by whose standards? And more importantly: On what authority can the feds tell CNN which debate criteria to use in the first place? In what universe does the First Amendment say Congress shall make no law abridging freedom of the press "as long as they remain objective"?
The irony is that in media accounts of the FEC's "paralysis," its 3-3 partisan split leads to a lot of deadlock, Goodman and his GOP colleagues often are cast as the implicit bad guys because they limit the FEC's reach. Perhaps some reporters should pay closer attention, lest one day the FEC's authority also reach them.
This column originally appeared at the Richmond Times-Dispatch.