Posted on 12/13/2003 1:24:48 PM PST by Federalist 78
Broadcast news organizations with a liberal bias and billionaires with potentially hidden political agendas will now control much of the flow of information about federal candidates in the days leading up to elections, according to critics of a Supreme Court decision issued Wednesday.
Richard Lessner, executive director of the American Conservative Union, called the restrictions on issue advocacy groups, which don't apply to wealthy individuals, the "dirty little secret" of the Bipartisan Campaign Reform Act (BCRA) upheld by the court.
"If you're a truck driver and you want to get together with a hundred other truck drivers and each pitch $10 into the hat to buy an ad because you don't like what your senator or congressman is doing, you're cut out of the process," Lessner said. "But if you're George Soros and you want to spend $10 million dollars on running TV ads nationwide, you're perfectly empowered to do that."
Soros is the liberal billionaire financier who has dedicated as much as $15.5 million of his personal fortune to keeping President Bush from getting re-elected.
"Defeating Bush is a matter of life and death," Soros told the Washington Post in November. "America, under Bush, is a danger to the world. And I'm willing to put my money where my mouth is."
Soros has contributed personally, or through his Open Society Institute, to liberal groups such as the National Abortion Rights Action League Foundation, the American Civil Liberties Union Foundation and the Tides Foundation, which promotes liberal ideology regarding the environment and other issues.
Conservative-minded wealthy people will have the same opportunity to try to influence elections, however, Soros' efforts related to the 2004 race have been the most aggressive to this point.
The court's five-to-four ruling upheld the BCRA's effective ban on broadcast advertising that identifies a federal candidate, targets a candidate's district, or is funded with corporate or union money one month prior to any primary election and two months before general elections. The limitation does not apply to candidates' election committees, certain highly regulated, non-corporate political action committees or individuals.
U.S. Rep. Mike Castle (R-Del.), one of the most vocal congressional supporters of BCRA, cheered Wednesday's Supreme Court decision.
"This landmark ruling by the highest court in our country is a victory for the American voters. It underlines the critical importance of requiring the disclosure of the identities of groups engaging in 'electioneering communications,'" Castle said. "In essence this ruling will no longer enable campaign advertisements to masquerade as valid issue ads."
Justices Sandra Day O'Connor and John Paul Stevens, in their majority opinion upholding BCRA, said it addresses what they consider a fundamental flaw in the 1973 Federal Election Campaign Act.
"Under [the previous] system, corporate, union, and wealthy individual donors have been free to contribute substantial sums of soft money to the national parties, which the parties can spend for the specific purpose of influencing a particular candidate's federal election," the justices wrote. "It is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude."
But Lessner disagreed.
"If you're just, simply, a millionaire, a billionaire and you don't like the president or you don't like the Democrat nominee and you want to write checks, personal checks, on your own, not acting through an organization, to run advertising in which you name candidates and take exceptions, you're perfectly free to do that," Lessner elaborated. "As long as you don't bundle your money with anybody else and you're not a group, but you're simply a wealthy individual, you're completely free to make your views known far and wide."
Lessner said the provisions of BCRA upheld by the court also give even more clout to the opinions of an already powerful television news media.
"This decision, clearly, empowers establishment/elite media and enormously wealthy individuals," Lessner said. "It's only common, everyday, average citizens who are bound by this decision."
Non-profit issue advocacy groups - composed of tens, hundreds, thousands or millions of individuals who agree on particular issues, like the members of the National Rifle Association (NRA) - had been able to purchase advertising before elections to tell voters about federal candidates' voting records and legislative agendas under prior law. But if they want to continue such activities under BCRA, they must now adhere to strict fundraising limitations and requirements that they disclose the identities of their donors, many of whom want to remain anonymous for fear of harassment by employers and local politicians.
"This is a sad day for the Constitution," NRA Executive Vice President Wayne LaPierre said in response to the ruling. "But the four million members of the NRA will continue to be heard, that I can promise."
Brian Darling, a lobbyist with the Alexander Strategy Group in Washington, believes television news, which is presented with a "major and continually existing liberal bias," will hold even more sway over voters.
"They will have much more influence over the next presidential election and the congressional elections coming up," Darling said. "It's pretty clear that, if you read The New York Times , the Boston Globe , the Washington Post , if you watch CBS News, NBC, ABC, those people are left-leaning and they will be dictating to many people the way that they should vote in the next elections."
That power, and the desire of the liberals who control major establishment media outlets to use it, could backfire, however.
"The chilling endpoint of the court's reasoning is not difficult to foresee: outright regulation of the press," Justice Clarence Thomas wrote in his dissenting opinion on BCRA.
"Media corporations are influential. There is little doubt that the editorials and commentary they run can affect elections. Nor is there any doubt that media companies often wish to influence elections. One would think that the New York Times fervently hopes that its endorsement of presidential candidates will actually influence people," Thomas continued. "What is to stop a future Congress from determining that the press is 'too influential,' and that the 'appearance of corruption' is significant when the media organizations endorse candidates or run 'slanted' or 'biased' news stories in favor of candidates or parties?"
Indeed, in a letter to a constituent Sen. Mitch McConnell, the leading Senate opponent and plaintiff in the lawsuit against BCRA, suggested a "what's good for the goose is good for the gander" approach to the provision excluding the media from BCRA's regulations.
"[The provision] makes a distinction where there is no real difference: the media is extremely powerful by any measure, a 'special interest' by any definition, and heavily engaged in the 'issue advocacy' and 'independent expenditure' realms of political persuasion that most editorial boards find so objectionable when anyone other than a media outlet engages in it," McConnell wrote. "To illustrate the absurdity of this special exemption the media enjoys, I frequently cite as an example the fact that, if the [Republican National Committee] bought NBC from [General Electric], the [Federal Election Commission] would regulate the evening news and, under the [BCRA as proposed], Tom Brokaw could not mention a candidate 60 days before an election.
"This is patently absurd," McConnell concluded.
In fact, the NRA is considering buying a radio or television station specifically to take advantage of the exemption. Wayne LaPierre, NRA executive vice president, told USA Today that the organization might also sue to be granted media status under the law based on its current media holdings.
"Why should [large media corporations] have an exclusive right to relay information to the public, and why should not NRA be considered as legitimate a news source as they are?" LaPierre asked, noting that his organization is one of the largest magazine publishers in the U.S., with nearly a dozen titles going to more than 4 million subscribers.
McConnell cited various surveys showing that 80 percent of the respondents supported government controls over media coverage of political campaigns.
"Fortunately the First Amendment precludes such regulation," McConnell observed, "but the presence of such an anti-media sentiment should be of some concern to the press."
Jim Babka, president of RealCampaignReform.org, predicted that in the event a politician felt slighted by a member of the press, that politician would respond with legislation to restrict the media's political influence.
"It's inevitable, it's as inevitable as sin that this is going to happen," Babka said. "Somebody is going to make a decision somewhere to slam some candidate who's going to still successfully get elected and he's going to have nothing but vengeance on his mind."
While the public might initially support such a response against an irresponsible media outlet, Babka is convinced that it would be a terrible idea.
"The power that you give a politician that you like today, to do something that you want done is the power that will be used by a politician that you hate tomorrow to do something you never could have imagined or would have approved of," Babka warned. "When government acquires a power, it always expands on that power."
Babka understands McConnell's frustration with the special privilege created by BCRA for the media and wealthy individuals.
"The real problem here is that the Supreme Court downgraded the freedom of press to a privilege for the institutional media," Babka said, "and, for the rest of us, said, 'No, you just, frankly, don't have it.'"
The way to "reform" campaigns, Babka stressed, is to go in exactly the opposite direction of that lawmakers and the Supreme Court are moving.
"You don't need legislation to restrict the ability of the New York Times or [ABC news anchor] Peter Jennings or anybody else from saying what they're saying, you need the ability to counteract it with the truth," Babka argued. "You need to be able to afford the bullhorn that gets that message out."
The way to do that, Babka said, is to allow unlimited contributions to candidates and parties and unlimited expenditures by any individual or group that has an opinion it wants to promote. Unfortunately, in his estimation, many people won't recognize the curbs on freedom of speech and the press in the court's decision, because the case was presented as one about political corruption.
"The really sad thing about this entire decision is that most of America will yawn," Babka said. "The country died today and most everybody ... won't even realize that something significant has just happened."
11 Republican Senators who voted for the BCFA of 2002:
McCain, Fitzgerald, Lugar, Collins, Snowe, Cochran, Domenicic, Spector, Chafee, Thompson Warner
41 Republican House Members voted for the BCFA of 2002:
Bohlert, Bono, Capito, Castle, Ferguson, Foley, Frelinghausen, Ganske, Gilchrest, Gilman, Graham, Greenwood, Grucci, Houghton, Horn, Johnson(CT), Johnson(IL), Kirk, LaTourette, Leach, LoBiondo, McHugh, Morella, Osborne, Ose, Petri, Platts, Quinn, Ramstad, Ros-Lehtinen, Sanders, Shays, Simmons, Smith(Mi), Thune, Upton, Walsh(not my clan), Wamp, Weldon(Pa), Wolf
One President Signed BCRA of 2002:
President Bush Dissent by Chief Justice William H. Rehnquist:
"The court attempts to sidestep the unprecedented breadth of this regulation by stating that the `close relationship between federal officeholders and the national parties' makes all donations to the national parties `suspect.' But a close association with others, especially in the realm of political speech, is not a surrogate for corruption; it is one of our most treasured First Amendment rights. The court's willingness to impute corruption on the basis of a relationship greatly infringes associational rights and expands Congress' ability to regulate political speech..."
"No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt." Dissent by Justice Antonin Scalia
"This is a sad day for the freedom of speech. Who could have imagined that the same court which, within the past four years, has sternly disapproved of restriction upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming, would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government..."
"The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy." Dissent by Justice Clarence Thomas
"The chilling endpoint of the Court's reasoning is not difficult to foresee: outright regulation of the press... Media corporations are influential. There is little doubt that the editorials and commentary they run can affect elections. Nor is there any doubt that media companies often wish to influence elections. One would think that the New York Times fervently hopes that its endorsement of presidential candidates will actually influence people. What is to stop a future Congress from determining that the press is `too influential,' and that the `appearance of corruption' is significant when the media organizations endorse candidates or run `slanted' or `biased' news stories in favor of candidates or parties?" Dissent by Justice Anthony M. Kennedy
"The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people and Government may not prescribe the means used to conduct it. The First Amendment commands that Congress `shall make no law ... abridging the freedom of speech.' The command cannot be read to allow Congress to provide for the imprisonment of those who attempt to establish new political parties and alter the civic discourse. ... The Court, upholding multiple laws that suppress both spontaneous and concerted speech, leaves us less free than before. Today's decision breaks faith with our tradition of robust and unfettered debate."
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Each president recites the following oath, in accordance with Article II, Section I of the U.S. Constitution:
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
Congress, Amendments to the Constitution, June--Sept. 1789
[House Debate, 15 Aug.; Annals 1:731, 738]
[Mr. Madison] The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government; the people may therefore publicly address their representatives, may privately advise them, or declare their sentiment by petition to the whole body; in all these ways they may communicate their will. If gentlemen mean to go further, and to say that the people have a right to instruct their representatives in such a sense as that the delegates are obliged to conform to those instructions, the declaration is not true.
Virginia Declaration of Rights, sec. 12, 12 June 1776
12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotick governments.
Oh, just now, huh?
John Swinton, the former Chief of Staff at the New York Times, said the following "toast" before the prestigious New York Press Club in 1953:
There is no such thing, at this date of the worlds history, in America, as an independent press. You know it and I know it. There is not one of you who dares to write your honest opinions, and if you did, you know beforehand that it would never appear in print. I am paid weekly for keeping my honest opinion out of the paper I am connected with. Others of you are paid similar salaries for similar things, and any of you who would be so foolish as to write honest opinions would be out on the street looking for another job. If I allowed my honest opinions to appear in one issue of my paper, before twenty-four hours my occupation would be gone. The business of the journalist is to destroy the truth, to lie outright, to pervert, to vilify, to fawn at the feet of mammon1 , and to sell his country and his race for his daily bread. You know it and I know it. What folly is this toasting an independent press? We are the tools of vassals of rich men behind the scenes. We are the jumping jacks, they pull our strings and we dance. Our talents, our possibilities and our lives are all property of other men. We are intellectual prostitutes.
Of course, they are the exact opposite.
Too bad the operative words "Congress shall make no law" were just ignored once, I'm sure they will be again. :(
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