Legal Affairs – The Media Should Beware of What It Embraces

National Journal

The uncritical enthusiasm of most media organizations for abolishing "soft money" and restricting issue advertising by "special interests" prompts this thought: How would the networks and The New York Times like a law imposing strict limits on their own rights to editorialize about candidates? After all, if some of their favored proposals were to be enacted, the media would be the only major interest still enjoying unrestricted freedom of political speech.

A few liberal legal scholars have proposed such laws as a long-term component of any "reform" aimed at purging the influence of private money and promoting true political equality. Associate Professor Richard L. Hasen of Loyola University Law School (Los Angeles) put it this way in the June issue of the Texas Law Review:

"If we are truly committed to equalizing the influence of money on elections, how do we treat the press? Principles of political equality could dictate that a Bill Gates should not be permitted to spend unlimited sums in support of a candidate. But different rules [now] apply to Rupert Murdoch just because he has channeled his money through media outlets that he owns. . . . The principle of political equality means that the press too should be regulated when it editorializes for or against candidates."

Far-fetched? Politically impossible? Blatantly unconstitutional?

Perhaps. But I’m not the only one worried about the lack of a stopping point on the slippery slope that runs from such seemingly modest proposals as the McCain-Feingold bill to the notion of censoring New York Times editorials. Listen to former acting Solicitor General (and former Deputy White House Counsel) Walter Dellinger, the most widely respected constitutional expert to come out of the Clinton Administration:

"I’ve been struck by how shallow the thought has been about whether McCain-Feingold is a good idea. There’s a credible argument that political parties may be the least bad place for monies to be funneled, and yet that’s where money would be limited.

"[And] it’s odd to see the press clamoring for restricting independent spending on campaigns by everybody other than the media. Even assuming that it would be desirable to say to one individual or group that you may not spend more than X dollars for television ads-while allowing another individual to buy a television network and spend as much as he wishes promoting a candidate or a party-it may be impossible under the First Amendment to restrict the `media,’ and it may be technically impossible in the age of the Internet to draw lines between the `media’ and everyone else."

Part of Dellinger’s point is what more-conservative critics of campaign finance restrictions stress: that each incremental step advocated by us reformers would create new problems and new inequities, fueling demands for more and more sweeping restrictions on political speech.

I say "us reformers" because I have been among the advocates of banning unlimited gifts of soft money to the political parties. (See NJ, 9/11/99, p. 2535.) But while John McCain and Bill Bradley have been riding a wave of media acclaim for pushing various reforms, I’ve been having second thoughts.

Banning soft money has considerable attraction because it would stop corporations, unions, and wealthy individuals from giving political parties the huge gifts that emit such a strong stench of corruption, or at least of influence-peddling.

But unless accompanied by a major increase in the caps on individual contributions of "hard money"-which most campaign finance reformers vehemently oppose-a soft-money ban could muffle the voices of the parties and their candidates while magnifying the influence of the independent groups ("special interests") that have already come to dominate some election campaigns. These include ideologically based groups ranging from the National Right to Life Committee on the right to the Sierra Club on the left.

Would it make sense to shift power from broad-based political parties to ideologically driven interest groups that are relatively unknown to the electorate? Dellinger thinks not: "It wasn’t a political party that did the Willie Horton ad. It was an independent expenditure group. . . . They are free to do drive-by political character assassinations without political accountability."

In part for this reason–and in part because of the simple urge to quiet their critics-many members of Congress insist that any soft-money ban be coupled with restrictions on fund raising by independent groups that use issue ads to influence elections.

The House-passed Shays-Meehan bill would restrict fund raising by such independent groups. And while those restrictions have been stripped from the Senate bill (McCain-Feingold) in order to pick up more votes for the effort to abolish soft money, most reformers see that move as only a temporary, tactical concession.

A further complication is the likelihood that the current Supreme Court majority would strike down the Shays-Meehan restrictions on independent groups, even if it upheld the provision abolishing soft money. The reason is that the danger of corruption that has persuaded the Justices to uphold caps on hard-money contributions to candidates (and that might persuade them to uphold a ban on soft-money contributions to parties) seems far more remote when independent groups are raising and spending the money.

Indeed, the urge of many reformers to restrict independent groups has less to do with preventing corruption than with equalizing the political clout of all citizens by reducing that of people (and groups) with money. And that goal clashes with the Court’s crucial holding in 1976, in Buckley vs. Valeo, that "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voices of others is wholly foreign to the First Amendment."

Suppose, however, that Congress does eventually abolish soft money and tightly restrict issue ads and that the Supreme Court goes along -and thereby abandons its First Amendment ruling in Buckley. One result would be to weaken the political parties and the independent groups alike by restricting their fund raising.

Another result, liberal and conservative scholars agree, would be to enlarge greatly the power of the big media companies, because they would be the only major organizations still free to raise and spend unlimited amounts of money to amplify their speech about political campaigns. A.J. Liebling’s line-"freedom of the press is guaranteed only to those who own one"-would become truer than he ever imagined. In such an environment, what justification would remain for continuing to exempt the institutional media from the pervasive regulation of everyone else?

Would the media be protected by their image of themselves as disinterested, politically neutral guardians of democracy? Hardly. The public is already properly skeptical of the accuracy and fairness of the big media companies. Many of them are already owned by commercial conglomerates, such as General Electric (which owns NBC and half of MSNBC), Disney (which owns ABC), and Rupert Murdoch’s empire (which owns the Fox network, The New York Post, The Weekly Standard, and more). Many are even big soft-money donors.

And a media monopoly on freedom of political speech would enhance the already considerable incentives for monied interests seeking political clout to go into the media business.

Could the media count on the Supreme Court to strike down any congressional restrictions on their rights to editorialize? Dellinger believes so. I’m a bit less confident. For if we ever reach that point, Buckley vs. Valeo will already be dead, the First Amendment will be unrecognizable, and political speech will no longer be deemed a fundamental freedom, but rather a privilege to be rationed.

In such a "post-Buckley era," Hasen enthuses, "op-ed pieces or commentaries expressly advocating the election or defeat of a candidate for federal office could no longer be directly paid for by the media corporation’s funds. Instead, they would have to be paid for either by an individual (such as the CEO of the media corporation) or by a PAC set up by the media corporation for this purpose. The media corporation should be required to charge the CEO or the PAC the same rates that other advertising customers pay for space on the op-ed page."

This scenario seems very remote now. But it suggests some questions that we should ask ourselves before jumping aboard the campaign finance reform bandwagon: How far do we want to go? Is there a good place to stop? Who will be at the controls? And will we be any happier in the end than the campaign finance reformers of 1974 have been with the system they helped create?