Of Campaign Finance Reform, Bloggers, and "the Press"
Where to begin? ...
No, it was not my intention to make this a campaign finance blog. But so much is going on out there, it is hard not to post at length on the issue. For if the Center doesn't hold on campaign finance, long after Karl Rove and the great Valerie Plame scandal have faded pale pastels, the damage being done to the First Amendment in the name of "reform" will live on, wrecking out politics and threatening our freedom as a Republic.
What prompts such apocolyptic words is the story coming out of Washington state, thanks to the work of Ryan Sager. To recap, a Washington State trial court judge, Chris Wickham, has ruled that time spent by radio talk show hosts arguing for an initiative to repeal a state gasoline tax increase constitutes a "campaign contribution" subject to regulation under Washington law. Pursuing the case, San Juan (WA) County prosecutor Randall Gaylord has subpoenaed a variety of documents from the local Fox News affiliate, prying into their internal management and editorial decisions. (A copy of the subpoena is included in the Sager post.) Worse, Gaylord apparently took this action on the recommendation of a law firm, Foster, Pepper, and Shefelman, which is one of the businesses that makes up the pro-gas tax group Keep Washington Rolling. Sager claims that Foster Pepper hopes to do bond work for the state if the tax increase is not repealed.
One of three things can happen here. Either Judge Wickham is reversed by a higher court; or the principle of his decision must also be applied to other news organizations, including newspapers that editorialize on the initiative, biased reporters, and the like, or the law is simply enforced selectively, against disfavored speakers such as radio talk show hosts.
All of which brings us back to the question of
Bloggers and the FEC:
Remember when the flap over possible Federal Election Commission regulation of blogs first arose in March, with the publication of this interview, we were quickly assured by the "reform" community that they only wanted to regulate "paid advertising" on the internet. See here (Money quote: "...The issue the FEC - and the courts - are grappling with is how to deal with online political ads by candidates and parties, and with paid advertising that is coordinated with those groups... These laws are decidedly NOT aimed at online press, commentary or blogs")
and here (Money quote: "There is NO REASON AT ALL that this FEC rulemaking should attempt toregulate bloggers." - emphasis in original. The author of this public letter is Trevor Potter, a lawyer for Senator John McCain, among other things).
Yet now these same "reformers" seem to be fighting tooth and nail against extending the protections of the press to bloggers, as these pieces in the Washington Post and Salon demonstrate [Note: It appears the Salon article is no longer available - I couldn't find it with a search of their site]. Why? If they don't want the law to apply to bloggers, why this resistence to a clear exception for bloggers? Of course, we know why - it's because they do want the law to apply to bloggers, but they know that politically they can't say so.
You might think that "the press" would be all over this issue, but they are not. They don't like bloggers, and they don't like talk show hosts, and they don't think of either as "real journalists." But this is almost certainly short-sighted on the part of the press. In his dissent in McConnell v. FEC, the case that upheld the constitutionality of the McCain-Feingold law, Justice Thomas (joined by Chief Justice Rehnquist) warned that nothing in the decision precludes regulation of the press in the future. It is worth noting that the majority did not dispute the point, except to say that the mere fact that the press is influential could not be the "sole basis" for such regulation (though that appears to be the sole basis for the judge's decision in Washington state).
Why has there been so little outcry that a radio station in Washington state is in hot water merely for broadcasting political opinion? Well, why should there be an outcry? Why should the American people support a First Amendment that only applies to some vague entity called "the press," which may or may not include me but almost certainly doesn't include you? If there is no press exemption for blogs, why should there be one for radio talk hosts? But if radio talk hosts aren't protected, why should Chris Matthews, Tim Russert, and George Stephanopolis - all former Democratic Party operatives now working as "mainstream" journalists, be protected? Indeed, why should any journalists have protection. And why should the American people support a rule that gives rights only to a small group of people, the most influential of whom attended elite colleges and earn several times the national average income? Support for the First Amendment, which is always somewhat precarious, won't remain solid for long.
These are dangerous times. The First Amendment is under attack from the left and right - in this case from the left, in the name of campaign finance "reform." Will the Center hold?
No, it was not my intention to make this a campaign finance blog. But so much is going on out there, it is hard not to post at length on the issue. For if the Center doesn't hold on campaign finance, long after Karl Rove and the great Valerie Plame scandal have faded pale pastels, the damage being done to the First Amendment in the name of "reform" will live on, wrecking out politics and threatening our freedom as a Republic.
What prompts such apocolyptic words is the story coming out of Washington state, thanks to the work of Ryan Sager. To recap, a Washington State trial court judge, Chris Wickham, has ruled that time spent by radio talk show hosts arguing for an initiative to repeal a state gasoline tax increase constitutes a "campaign contribution" subject to regulation under Washington law. Pursuing the case, San Juan (WA) County prosecutor Randall Gaylord has subpoenaed a variety of documents from the local Fox News affiliate, prying into their internal management and editorial decisions. (A copy of the subpoena is included in the Sager post.) Worse, Gaylord apparently took this action on the recommendation of a law firm, Foster, Pepper, and Shefelman, which is one of the businesses that makes up the pro-gas tax group Keep Washington Rolling. Sager claims that Foster Pepper hopes to do bond work for the state if the tax increase is not repealed.
One of three things can happen here. Either Judge Wickham is reversed by a higher court; or the principle of his decision must also be applied to other news organizations, including newspapers that editorialize on the initiative, biased reporters, and the like, or the law is simply enforced selectively, against disfavored speakers such as radio talk show hosts.
All of which brings us back to the question of
Bloggers and the FEC:
Remember when the flap over possible Federal Election Commission regulation of blogs first arose in March, with the publication of this interview, we were quickly assured by the "reform" community that they only wanted to regulate "paid advertising" on the internet. See here (Money quote: "...The issue the FEC - and the courts - are grappling with is how to deal with online political ads by candidates and parties, and with paid advertising that is coordinated with those groups... These laws are decidedly NOT aimed at online press, commentary or blogs")
and here (Money quote: "There is NO REASON AT ALL that this FEC rulemaking should attempt toregulate bloggers." - emphasis in original. The author of this public letter is Trevor Potter, a lawyer for Senator John McCain, among other things).
Yet now these same "reformers" seem to be fighting tooth and nail against extending the protections of the press to bloggers, as these pieces in the Washington Post and Salon demonstrate [Note: It appears the Salon article is no longer available - I couldn't find it with a search of their site]. Why? If they don't want the law to apply to bloggers, why this resistence to a clear exception for bloggers? Of course, we know why - it's because they do want the law to apply to bloggers, but they know that politically they can't say so.
You might think that "the press" would be all over this issue, but they are not. They don't like bloggers, and they don't like talk show hosts, and they don't think of either as "real journalists." But this is almost certainly short-sighted on the part of the press. In his dissent in McConnell v. FEC, the case that upheld the constitutionality of the McCain-Feingold law, Justice Thomas (joined by Chief Justice Rehnquist) warned that nothing in the decision precludes regulation of the press in the future. It is worth noting that the majority did not dispute the point, except to say that the mere fact that the press is influential could not be the "sole basis" for such regulation (though that appears to be the sole basis for the judge's decision in Washington state).
Why has there been so little outcry that a radio station in Washington state is in hot water merely for broadcasting political opinion? Well, why should there be an outcry? Why should the American people support a First Amendment that only applies to some vague entity called "the press," which may or may not include me but almost certainly doesn't include you? If there is no press exemption for blogs, why should there be one for radio talk hosts? But if radio talk hosts aren't protected, why should Chris Matthews, Tim Russert, and George Stephanopolis - all former Democratic Party operatives now working as "mainstream" journalists, be protected? Indeed, why should any journalists have protection. And why should the American people support a rule that gives rights only to a small group of people, the most influential of whom attended elite colleges and earn several times the national average income? Support for the First Amendment, which is always somewhat precarious, won't remain solid for long.
These are dangerous times. The First Amendment is under attack from the left and right - in this case from the left, in the name of campaign finance "reform." Will the Center hold?
posted by The Centerman | 12:11 PM
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