Confessions of a McCain-Feingold Criminal
If I go down, I'm taking the Washington Post down with me.
An extremely damaging document has come into my possession. It came in the U.S. mail, actually, calling itself an IRS Miscellaneous Income Form 1099 from the Washington Post Co. According to said document, this private, profit-making corporation paid me several thousand dollars last year to supply a weekly column for the op-ed page of its flagship newspaper. Most of those columns during the tax year 2000, I fear, could be interpreted as efforts to affect the result of the presidential election. Appearances do not deceive: That is, in fact, what they were.
Ever more explicitly as Election Day approached, I urged people to vote against the man who is now president of the United States. (I was operating on the theory that the election results are affected by who gets more votes. This theory has since been discredited, but that's another story.) Meanwhile, this company was not only paying dozens—dozens!—of dollars each time for weekly assaults on a presidential candidate, but it was also spending thousands more to print this electioneering material and to disseminate it to a wide audience. And preliminary research indicates that I am not the only writer whom the Washington Post Co. may have paid to attempt to influence the results of an election. Some of these writers were openly advocating a vote in favor of the ultimate winner. (An unnecessary precaution, as it turned out.) In fact, it appears that, like a K Street lobbying firm, the Post routinely spends money on separate attempts to affect election results in favor of both parties' candidates—or even all three—at the same time.
Only two things keep my Form 1099 from being evidence of an "independent expenditure" and a violation of various restrictions and reporting requirements in the McCain-Feingold campaign-finance reform law. One is that McCain-Feingold isn't yet the law. The other is that the campaign-finance laws specifically exempt the media. Current federal regulations declare that the word "expenditure" does not include "any cost incurred in covering or carrying a new story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer, or producer), newspaper, magazine, or other periodical publication" unless it is controlled by a political party or candidate. McCain-Feingold has a similar exemption from its new restrictions on "electioneering communication." (Insultingly to scribblers, these proposed restrictions and exemptions apply only to broadcast media. If there's anything more infuriating than the peril of being muzzled, it's the revelation that you're not worth bothering to muzzle.)
The fiercest critics of campaign-finance reform conclude from all this that the press drumroll on behalf of McCain-Feingold is just a plot to enhance the power of media corporations at the expense of other voices in the political debate. That is silly. The reporters, producers, and editorial writers who are plumping for McCain-Feingold are not pawns of their corporate masters, at least in this regard, and those masters are more interested in profits than in enhancing the political influence of their journalist underlings.
Journalists generally support McCain-Feingold for the same reason other citizens do: They believe—correctly—that the current arrangement stinks. But the media exemption does mean that certain provisions of McCain-Feingold fail the "sauce for the gander" test. These are the same provisions widely acknowledged, even by Sens. McCain and Feingold, as likely to be ruled unconstitutional. But the general media attitude is that this is an unfortunate complication.
For 25 years, ever since the Supreme Court first ruled that restrictions on political spending—as opposed to campaign contributions—violate the First Amendment, the New York Times editorial page has been ridiculing the idea that "money equals speech." But suppose that Congress decided to restrict the amount of money one could spend publishing a newspaper? After all, the New York Times is as entrenched an incumbent as any elected politician. It uses its position to raise millions of dollars from other corporations, allowing them in return to flagrantly advance their private agendas in its pages. Limiting what the Times can spend might open up room for new voices and liberate the Times itself to think more about the public interest and less about how to attract more advertising.
Or suppose Congress merely applied milder impositions resembling those in McCain-Feingold: no editorials endorsing a candidate for office within 60 days of the election; registration and reporting of who writes each editorial, how much that person is paid, what the Times charges for those mock-editorial ads on the op-ed page, and so on. All accompanied by detailed rules to enable the government to decide when news analysis crosses over into advocacy.
I think the New York Times might object. And it wouldn't give a damn one way or the other about "non-severability."
The Supreme Court's spending/contribution distinction gets attacked from the other side as well. McCain-Feingold's fiercest critics insist that limits on contributions—specifically the closing of the "soft money" loophole—also abridge free speech. But the court got this one right, too. Contributing money may be a way of saying, "I support this candidate," but there's no clear correlation between that message and the size of the contribution. One person's $75 may mean, "I really, really support this candidate," while another person's $1,000 means, "OK, OK, now stop calling me" (and yet another's $500,000 may mean, "Please pardon my ex-husband").
By contrast, when you're spending your own money to promote your own views, every dollar affects your ability to deliver the message. As the Times, the Post, and all the rest would be explaining today if they weren't exempt.
Michael Kinsley is a columnist for the Washington Post and the founding editor of Slate.