http://johnrlott.tripod.com/op-eds/HighCourtUndone.html
Published Friday, December 19, 2003, in National Review Online
Supreme Irrelevance: Will the high court be undone by political
reality?
By John R. Lott, Jr.When is a television station not a television station? How about if it
is
owned by the National Rifle Association? It may not seem momentous, but
the NRA's announcement this week that it might buy a television or
radio
station has sent shockwaves through campaign-finance-regulation
advocates
and may ultimately undo last week's Supreme Court decision upholding
McCain-Feingold. If the NRA were recognized as a media organization, it
would be free to say what it wanted about political candidates, not
constrained by any campaign-finance laws. No worries about
restrictions on
independent campaign expenditures.General Electric or Time Warner or Viacom own television companies and
can
easily produce positive news coverage for favored candidates. No one
would
seriously think of limiting the number of their favorable news stories
for
a candidate or the ads that they could take out advertising the
favorable
show. But right now the NRA is not the media and without getting a
media
exemption, the campaign-finance laws restrict what radio or television
ads
the NRA can run.So what distinguishes the NRA from these companies? Surely, not that
they
are nonprofit. Churches own radio and television stations and publish
newspapers.Possibly the NRA is simply different because it has a well-known
political
opinion. But doesn't theNew York Times or the Washington Post also
have a
well-known stance on gun control? Newspapers can run an editorial or
news
stories supporting candidates any day. Unlike everyone else, the media
can
mention a candidate's name during the 60 days before the general
election.
Yet, the NRA is forbidden from placing an ad next to the editorials in
those very same newspapers.It is not even really clear whether the NRA even has to buy a
television
station to qualify as part of the media. The NRA already is one of the
biggest magazine publishers in the country, with about a dozen
publications, and provides news on their website.Just this September when the Supreme Court heard the challenges to the
newest campaign-finance rules (the McCain-Feingold law), Justice
Anthony
Scalia anticipated this problem with campaign finance. During the oral
arguments he noted: "if history teaches us anything, [it] is that when
you
plug one means of expression, the money will go to whatever means of
expression are left."By trying to become part of the media, the NRA has shown ultimate
unenforceability of campaign-finance rules.Not surprisingly, the NRA's actions have generated outrage. Senator
John
Kerry demanded that the Federal Election Commission block any attempt
by
the NRA to get a media exemption claiming: "We urge you to prevent the
NRA
from hijacking America's airwaves with the gun lobby's money."It has been a brutal couple of months for campaign-finance reform.
Democratic presidential candidates have abandoned public financing.
Candidates who have long claimed the system necessary for helping
challengers now say when their own campaigns are on the line that
public
financing entrenches incumbents.Campaign-finance reform will undoubtedly also survive recent scandals.
Even the revelation of a Brooklyn city-council candidate who was
apparently the first to realize that you could use donations to get
matching funds and then hire those same donors as political consultants
with the government money. With New York City offering four dollars of
matching funds for every dollar raised, few legal investments provide
that
kind of return.Others have noted that if Governor Dean, Senator Kerry, and President
Bush
hadn't opted out of the public-finance system, the program would be
out of
money now. Taxpayers have simply been unwilling to even redirect some
of
the taxes that they have to pay anyway into the system. When you have
the
Federal Election Commission just announcing that Lyndon LaRouche, the
perennial conspiracy-theorist candidate and convicted felon, will soon
get
a check from the government for $840,000, taxpayer distaste for the
system
is quite understandable.Yet, despite these various problems, the events surrounding the NRA
this
week may be something quite different — the effective end of campaign-
finance regulations. News organizations will rightly claim that they
cannot do their jobs if campaign-finance regulations are applied to
them.
Surely even the liberal majority on the Supreme Court will realize that
regulating the content of news stories or stopping the media from
advertising their shows goes too far.But what really distinguishes General Electric's versus General
Motors's
ability to influence elections? Is it really simply GE's ownership of
television networks? Can Unions buy radio stations? Can anyone possibly
rationalize such distinctions?It looks like Scalia was right. Before the Supreme Court's decision was
even issued last week to uphold McCain-Feingold parts of the
regulations
were already coming apart.
John Lott, a resident scholar at the American Enterprise Institute, is
the
author of The Bias Against Guns (Regnery 2003). He served as an unpaid
statistical expert for the plaintiffs challenging McCain-Feingold.
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