A favorite whipping boy of today's progressive movement is the Supreme Court's Citizens United decision of 2010, which struck down as unconstitutional that portion of the 2002 McCain-Feingold "campaign finance reform" statute that limited independent political expenditures by corporations and unions in the run-up to elections. Both Hillary and Bernie have as a main plank in their campaigns a promise to somehow legislatively reverse or otherwise find a way around Citizens United in order to "get money out of politics," and "rein in the special interests" in order to keep them from "buying elections."
Last week saw the issue again in the news. The Senate Democrats put forth a new plan (it's not their first one) that they euphemistically call the "We The People Act" as their proposed way around the Citizens United decision. Here is their press release. Although the proposal contains some new tweaks to existing statutes (such as disclosure requirements for contributions to what are sometimes now called "dark money" PACs), the guts of the plan is found in a proposal to amend the First Amendment of the Constitution to give Congress and the states power to "regulate and limit" independent political expenditures:
This constitutional amendment resolution from Senator Tom Udall (D-NM) provides Congress and the states with power to enact campaign finance reforms that withstand constitutional challenges. It would fix Citizens United, McCutcheon, Buckley, and other bad precedents. Finally, it provides the authority to regulate and limit independent expenditures, including those made by corporations and Super PACs.
The New York Times immediately weighed in on June 10 with a favorable editorial:
The Supreme Court’s 2010 decision in Citizens United, which opened the floodgates to the buying and selling of elections, is a ruling Democrats love to deplore but nobody ever seems able to do anything about. . . . [T]he principle of cracking down on collusion is a good one. It has been made forcefully by good-government groups, like the Brennan Center for Justice, and by Senator Patrick Leahy of Vermont, who has sponsored a bill making similar suggestions. Senate Democrats on Thursday proposed a package of campaign reforms targeting Citizens United as well.
This has to be about their fiftieth editorial deploring Citizens United and the "opening of the floodgates to buying and selling elections."
Call me crazy, but I just can't figure out how it is that when "independent political expenditures" by "corporations" become subject to "regulations and limits," that the New York Times won't find itself in the soup. First, they are organized as a corporation. Second, essentially everything they do is an "independent political expenditure" for the Democratic candidate or candidates of the moment. OK, maybe someone could quibble over whether it's "everything" they do, or just a large percentage of what they do. For example, perhaps the coverage of sports and the arts should be excluded, and maybe the weather. But I wouldn't be so sure about the arts. Consider this from an article a couple of days ago about the Broadway musical Hamilton. Excerpt:
Mr. Miranda’s depiction of Hamilton as resourceful immigrant and talented self-made man captures an important aspect of his character. But the musical avoids an equally pronounced feature of Hamilton’s beliefs: his deeply ingrained elitism, his disdain for the lower classes and his fear of democratic politics. The musical’s misleading portrayal of Hamilton as a “scrappy and hungry” man of the people obscures his loathing of the egalitarian tendencies of the revolutionary era in which he lived.
The New York Times spends about $1.5 billion per year putting out its "news" product. How much of that could be deemed some sort of political expenditure? It could easily be $1 billion. Any "limits" that might be imposed, even relatively high ones ($5000?) will of course catch them.
Read some of their many editorials on this (here and here are a couple of more examples) and all you can think is that they have totally not recognized this as an issue. Why? Do they think it is because they are the Sulzberger family, and therefore "good," as opposed to, for example, the Koch family, who are obviously "bad"? That argument won't help much in court. The only real one they might try would be to argue that they are entitled to a blanket exemption because they are the "press." But why isn't the Citizens United entity, and any other entity that organizes to put out information relative to a newsworthy event such as an election, part of the "press"? You don't need a license to be part of the "press" in this country, so you can't distinguish "press" from "non-press" by whether someone has a license. Is the distinction videos versus print? The New York Times puts out plenty of videos. And I'm sure that Citizens United (and every other Super PAC) could put out some kind of print newsletter in addition to its movie or ads if that's what it takes to qualify as "press."
In short, I can't see any way that the "press/non-press" distinction could hold up to protect the New York Times and its ilk when the day comes that "independent political expenditures" are subject to "regulations and limits." And remember, the penalties for campaign finance violations are not just civil; they are criminal. With the proposed constitutional amendment in place, why wouldn't the next Republican president go after the Times and a few other soft targets in the mainstream media?
It's likely of course that this whole constitutional amendment thing is going nowhere, and the Times is well aware of that. What that means is that the flood of proposals and editorials is not really about changing the law, but about getting the base fired up. They are counting, of course, on the progressive base being too ignorant to know that the main thing protected by the Citizens United decision is the mainstream Democrat-operative media itself.