By James Taranto -
In the 2003 case of McConnell v. Federal Election Commission , the U.S. Supreme Court upheld much of the law styled the Bipartisan Campaign Reform Act of 2002, colloquially known as McCain-Feingold. Writing in dissent, Justice Clarence Thomas warned: "The chilling endpoint of the Court's reasoning is not difficult to foresee: outright regulation of the press."
McCain-Feingold itself did not contemplate such regulation; it expressly exempted "media corporations" like News Corp. and the New York Times Co. from its limits on corporate political speech. Thomas's point was that "none of the reasoning employed by the Court" made that distinction as a matter of constitutional law, so that the McConnellprecedent, if applied consistently, would sustain laws that applied to the press:
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?
To hear Lee Goodman, the FEC's current chairman, tell it, it wouldn't even necessarily require a new law. "I think that there are impulses in the government every day to second guess and look into the editorial decisions of conservative publishers," Goodman, a Republican, tells the Washington Examiner's Paul Bedard.
Bedard reports that "Goodman cited several examples where the FEC has considered regulating conservative media, including Sean Hannity's radio show and Citizens United's movie division." The latter, of course, was the appellant in the celebrated 2010 case of Citizens United v. FEC, in which the court partly overturned McConnell and held parts of McCain-Feingold unconstitutional.
Goodman tells Bedard that the efforts to regulate conservative media were thwarted because only three of the six commissioners supported them. The 1975 law creating the FEC aimed at partisan balance: The commission has six members, of whom no more than three may be from the same political party. Any official commission action requires four votes, so that the commission shouldn't be able to act without bipartisan support.
Yet one can imagine ways of circumventing that structural protection. Goodman's bio notes that he was confirmed unanimously by the Senate after being nominated by President Obama on the recommendation of Senate Republican Leader Mitch McConnell, who was the appellant in that 2003 case. But there are Republicans who are hostile to conservative media and might sympathize with an effort to regulate them. What if Obama nominated one of them for an FEC vacancy and Harry Reid pushed the nomination through the Senate on a party-line vote?
"I want conservative media to have the same exemption as all other media," Goodman tells Bedard. After Citizens United, however, it's doubtful that the media exemption is constitutional at all: "There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not," Justice Anthony Kennedy observed in the court's opinion. "With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred."
The First Amendment itself is unqualified: "Congress shall make no law . . . abridging the freedom of speech, or of the press." These protections are neither limited to media corporations nor denied to other corporations or individuals, including candidates and donors. "There are some in this building that think we can actually regulate [media]," Goodman tells Bedard. The solution to that problem is to put the building to other use.