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Confessions of a McCain-Feingold CriminalIf I go down, I'm taking the Washington Post down with me.

By Michael Kinsley
Posted Friday, March 30, 2001, at 3:00 AM ET

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.

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Michael Kinsley is a columnist for Time and the founding editor of Slate.
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[Notes from the Fray Editor: Why is star poster A.G.Android the Pride of the Fray? Because he says this: "The best change in political coverage has been the Web, which produces many viewpoints in readily accessible form. Oh, and of course, the highest form of Web discourse is The Fray. But that goes without saying." We're glad you said it anyway Android.

The Fray Editor doesn't judge the merits of the bill, but is prepared to judge that the Fray arguments against it were of a very high standard. Will Allen thought Zeitguy's post, below, was a home run, and Will did pretty well himself. There are many many recommended threads in the Fray (look for the checks and stars, or click the 'Fray Editor's Picks' button): Pitchfork, here, wants free broadcast political advertising. NKVD has a good question about advertising in areas near to each other. A thread called "Free speech really is in Danger" is full of interesting arguments. Andrew Straticzuk takes a long-term view here.

We like David W.Rochlin's honest point in answer to another poster here: "I am stung to the very quick by your allegation that…I personally would make momentous decisions on the basis of [TV] commercials… It is charming but naive of you to suggest that a momentous choice in life, such as a decision to vote for a candidate, be a responsible decision, and a result of a rational evaluation of the facts. Clearly, you have never married anyone." He goes on to say (great post, great thread): "I [do] not accuse Kinsley or anyone, of not being capable of presenting news in a reasonable way. Not that I would be above that, if I needed to. I only accused him of ignoring the fact that his role would be larger as the default political power broker for Microsoft, in a world where his views can't be as effectively challenged directly by a candidate, as is the case at present. Not that anyone need worry about Kinsley, unless Bill O'Reilly should attempt to run for national office."

Dan Simon (famed for being annoyingly perceptive, click here and scroll to the Fray Notes) discusses the case for public funding but says the idea is doomed because of "three ingrained American cultural attitudes--dislike of government spending, distaste for politicians, and refusal to offer the tiniest modicum of respect (let alone cash) to political opponents". He balances this nicely with the claim that "political fundraisers' [will be forced] in their desperation, to resort to increasingly esoteric, clandestine, and egregious forms of graft." Have a star Mr Simon.]


If I understand this bill, it is similar to an older court saying you can own a horse and own a saddle, but you can't saddle the horse because bank robbers have been using saddled horses for a few years. With the exception of those saddled horses that belong to the livery owners. Included in the exception would be bank robbers riding saddled livery stable horses. Okay, then what is accomplished with such astonishing inventions and accommodations? The average person who was not involved in the robbing of banks is now declared untrustworthy in matters of saddling horses, and the bank robbers will do dastardly things without fear of citizen-saddled posses.

Right. I get it. It is the American Way.

--Zeitguy

(To reply, click here.)


[To supporters of the bill:] You wish to to prevent some people from making political statements, based upon your estimation that they have been too widely heard. You, and any majority you cobble together, lack sufficient wisdom to determine who has been too widely heard. This is why the First Amendment was written, to prevent know-it-all majorities from imposing their will on everyone else. Your vote counts as one vote, and Charlton Heston's vote counts as one vote. It is your responsibility to convince enough of your fellow citizens to vote as you do, and thereby remove those officeholders whose behavior so offends you. So far, the Charlton Hestons of the world have been more successful than you in organizing like-minded voters, and therefore you wish to use physical force to shut them up.

--Will Allen

(To reply, click here.)


All of the talk about the poor having no voice in politics is absurd. They never have and they never will. The history of both major parties has always shown us that the wealthy have more access to government than the poor. Face it, how many people in America can really afford to spend their grocery money on a political candidate. Only those with real disposable income will ever gain the ear of their elected officials. Don't be such hypocrites by asserting that Mc Cain-Feingold will change anything about who really gets elected or who has the power in this country.

--Jim

(To reply, click here.)

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