Dan Rather's Sues CBS - Some Questions for Campaign Finance Reform?

Published on September 23, 2007
by Brad Smith

File Under: Press

Dissenting in McConnell v. Federal Election Commission, which upheld the McCain-Feingold campaign finance restrictions, Justice Clarence Thomas wrote:

The chilling endpoint of the Court's reasoning is not difficult to foresee: outright regulation of the press. None of the rationales offered by the defendants, and none of the reasoning employed by the Court, exempts the press. "This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media  corporations from [nonmedia] corporations." Bellotti, 435 U.S., at 796, 55 L. Ed. 2d 707, 98 S. Ct. 1407 (Burger, C. J., concurring). Media companies can run procandidate editorials as easily as nonmedia corporations can pay for advertisements. Candidates can be just as grateful to media companies as they can be to corporations and unions. In terms of "the corrosive and distorting effects" of wealth accumulated by corporations that has "little or no correlation to the public's support for the corporation's political ideas," Austin, 494 U.S., at 660, 108 L. Ed. 2d 652, 110 S. Ct. 1391, there is no distinction between a media corporation and  a nonmedia corporation.  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 media organizations endorse candidates or run "slanted" or "biased" news stories in favor of candidates or parties? Or, even easier, what is to stop a future Congress from concluding that the availability of unregulated media corporations creates a loophole that allows for easy "circumvention" of the limitations of the current campaign finance laws?

In response to Justice Thomas, the best the majority could muster was a rather uncomforting note that the press could not be regulated "on the sole basis that their activities conferred a benefit on a candidate." (Emphasis added).  The majority conspicuously declined to take up Justice Thomas's challenge and reject press regulation on the grounds that the press might create an "appearance of corruption," or that press outlets could become "loopholes" for "circumvention."  

Leading academic commentators, including Professors Owen Fiss, Mark Tushnet, Richard Hasen, and Edward Foley have all suggested that press regulation is a necessary part of thorough-going campaign finance "reform."

Now comes news of Dan Rather's lawsuit against CBS over the forged Bush National Guard documents.  Rather alleges in paragraph 12 of the complaint that CBS News was covering things up in order to protect the administration, and to advance the interests of its corporate owner, Viacom. 

Now, the veracity of Mr. Rather's claims is, to put it mildly, in doubt.  But it points up the problem.  In fact, institutional media, such as Viacom, have great interests.  And so do people such as Dan Rather.  Suppose Rather is correct - why should Viacom and CBS be allowed to influence a race free from the constraints of campaign finance laws?  But suppose Rather is a crazed old crank not to be taken seriously, and the commonly accepted version of the story - that Rather and his producer, Mary Mapes, were so eager to take down Bush that they knowingly or recklessly relied on forged documents to do so - is true: why should people such as Dan Rather and Mary Mapes be free to use the massive corporate resources of a major media corporation to try to influence the outcome of an election, free from campaign finance laws?  Beyond the raw influence, won't it be clear in either case that the administration (or the Democrats) would have felt gratitude toward the network and its corporate owners?  Might they not then be swayed by the interests of the network in public policy decisions?  Isn't this exactly the "appearance of corruption" that is used to justify campaign finance restrictions on everyone else. 

We cannot exist with a partial First Amendment, in which some people get the benefits of the First Amendment and others do not.  Rather's lawsuit is not directly about campaign finance regulation, but it points up the emptiness of campaign finance "reform."  As a First Amendment matter, campaign finance reform should not be a hard case.  We have gotten to where we are only because some people don't like some forms of speech, and have successfully argued that there are "compelling interests" so strong as to justify ignoring the First Amendment.  But this is a house of cards that cannot stand forever.  Either the First Amendment will belong to all of us, or it will belong only to a few of us, at the sufferance of the government.