Newspapers refuse to recognize that political speech is tied to money

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By ROBYN BLUMNER

© St. Petersburg Times, published March 25, 2001

It's campaign finance reform time again in the Senate, and most of the major daily newspapers have weighed in with another round of McCain-Feingold boosterism.

The New York Times called the bill "the best chance in a generation to clean up American politics," and the Washington Post warned legislators who might be wavering in their support for the reforms that "this bill, not the tax bill, is the test of the year."

How such hypocrisy has been allowed to flourish on the nation's leading editorial pages is a mystery to me. Their message is unmistakable: The print media have a constitutional right to collect and spend an unlimited amount of money in order to publish anything they want about political candidates. But if individuals, political parties or advocacy groups do so, they can be muzzled by federal election law. (Even this newspaper refuses to criticize the entirety of McCain-Feingold, cherry-picking instead what it likes and dislikes.)

McCain-Feingold is receiving giddy endorsements by most of the print media because it would ban "soft money" -- unrestricted donations made to a political party. Editorialists say soft-money donations have been used to sidestep the $1,000-per-election limits imposed by federal law on giving directly to a candidate.

Okay, granted. But the history of campaign finance reform efforts proves that no matter what the law says, money will find a way.

The soft-money loophole was an unintended consequence of a 1974 federal law blocking individuals from giving significant support directly to a candidate. The lesson here is that banning soft money won't eliminate big money from politics. It will merely force large contributors to find another place to advocate from, such as through independent expenditures.

Then, during the next reform go around (and McCain-Feingold already does this to some extent) lawmakers will seek to block money going to issue ads. Soon the only ones allowed to communicate, without restriction, to the public about candidates during an election will be the news media themselves.

Isn't that interesting?

Maybe that's why my colleagues in editorial boardrooms, defenders of the First Amendment in every other context, refuse to recognize an obvious truism: that freedom of speech is inextricably tied to one's ability to collect and spend money.

How would the New York Times editorial page respond if, as a way to equalize access to its pages, the New York State Legislature were to enact a law limiting the amount of money the paper could charge for advertising (which would be similar to the amendment in McCain-Feingold that forces broadcasters to give candidates cut rates on prime time ads)? No doubt, the newspaper would trumpet that as an outrageous First Amendment violation.

By limiting the amount of money the New York Times can bring in from each advertiser, the government would be limiting the paper's reach -- how much reporting it could do and the breadth of its distribution. The law would be clearly unconstitutional.

But the New York Times refuses to acknowledge that the same First Amendment principles apply when limits are placed on contributions to a political party. What is a campaign contribution, really? It's money given to candidates or parties so they have the resources to communicate their political message to the voters.

Why should media moguls such as Rupert Murdoch and Ted Turner get to use their communications empires as veritable soapboxes for favored candidates but those supporting the opposition can be barred from giving large sums for rebuttal ads?

Interestingly, the New York Times was not so sanguine about campaign finance reform when its own ox was being gored.

In October 1972, noted civil liberties attorney Floyd Abrams filed an amicus brief on behalf of the paper in a case challenging the constitutionality of the Federal Election Campaign Act of 1971.

The New York Times was objecting to a provision of the law that barred all advertisements mentioning the name of a candidate, unless the candidate's campaign approved the ad and agreed that it would count toward an expenditure limit.

The American Civil Liberties Union had wanted to run an advertisement in the paper that condemned President Richard Nixon's endorsement of legislation limiting court-ordered busing. The ad also listed an "honor roll" of 102 House members who had previously opposed anti-busing measures. Because the ACLU hadn't first cleared it with the campaigns of the 102 lawmakers, the New York Times was forced to reject the ad or be in violation of federal elections law.

The paper argued in its brief that this rule violated the free speech rights of the ACLU, the newspaper, and its readers.

A court agreed.

Now though, when McCain-Feingold bans television ads that are sponsored by unions or corporations and that mention the name of a candidate within 60 days of an election, the First Amendment is treated by New York Times editorialists as if it were a red herring. "(This restriction) is based on sound constitutional precedent of regulating money, not speech," read an editorial of March 19.

Hmmm. Sorry, I really don't see how a ban on ads that name a candidate is constitutionally better than a ban on ads that don't have the approval of the candidate named.

If the New York Times understands the distinction, maybe it should share its reasoning with the rest of us.

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