[EL] Equating journalistic editorials with other corporate election advocacy

[Smith, Brad]

These distinctions, however, are very difficult to meet in other ways. Take, for example, Air America. Air America presumably wanted to operate at a profit, but it never did. And it appears that investors were not necessarily sold on it as a profit making company, but rather as a campaign related enterprise.

Many if not most "think" magazine are operated at nearly perpetual loss, funded either by foundations, wealthy philanthropists, or gimmicks such as selling worthless shares of stock. I believe this would apply, for example, to the New Republic, Reason, Washington Monthly, and many others. Michael Moore made Fahrenheit 911 with the specific and publicly stated intent of defeating George W. Bush. Of course, certainly he wanted to make money, too, and he did. But what if the film had lost money? What prevents the "Producers" scenario of intending to lose money? Isn't it obvious that Citizens United would also really like it if "Hillary: The Movie" made money for the group - even though it is a non-profit? (Non-profits, of course, often make profits - they just distribute them differently than for-profits).

In United Auto Workers, the union was publishing a newspaper, and subsidizing the publication with other income. How is that different than the Washington Times, a newspaper operating for years at a loss? When I was at the FEC, we had complaints filed against in-house magazines, such as Wal-Mart's publications for Sam's Club. Is that a "legit" magazine? It has articles, editors, it pays authors to write for it, and it is financed by the sale of ad space. Wal-Mart is hardly filling a demand for election advocacy speech - at least I don't think that's how most would look at them - yet can one really say this is not legit? And isn't the Washington Times filling a demand for speech - albeit at an economic loss?

Then you'd have the problem - how long can a publication or broadcast station operate at a loss? Many businesses expect to operate at a loss for a substantial period of time. So it Air America runs at a loss through three election cycles, can we shut down its electoral advocacy? Suppose as a result of recent controversies Limbaugh's Excellence in Broadcasting Network takes a loss one year? Is it done for? What if that extends to two years? What if Limbaugh then takes a multi-million pay cut to keep it going? (Note here that networks will sometimes stick with non-political shows that are losing money, if they think they will eventually pay off).

Leaving aside the types of issues Jim raises, and Tom argues can be distinguished, remember that the New York Times is the easy case. I think Tom is right - when it comes to the easy cases. But because people want to speak out, and will find ways to do it - the easy cases will soon become the hard cases. NRA Radio? Radio Pacifica?

That has, in fact, been the history of campaign finance restrictions. Each restriction forces political speech to migrate to the next most effective medium, or forces innovation that leads to even more effective means of communication. And each time this new form is denounced as a "loophole" that must be closed. When it is, the cycle simply repeats.


Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Thomas J. Cares [Tom at TomCares.com]
Sent: Saturday, March 24, 2012 9:36 AM
To: Election Law
Subject: [EL] Equating journalistic editorials with other corporate election advocacy

That comparison really puzzles me.
Can we really not have consensus that there's a difference between a corporation filling a market demand for election advocacy speech - and profiting from that just as an energy company profits by filling a market demand for energy - and an energy company investing in election advocacy speech, not to fill a market demand for that speech to make a profit from the speech, but to alter the course of public policy such to increase the profits of their energy business, both by affecting who gets elected and - even without necessarily altering who would get elected - corrupting the policy deliberations of policy-makers by making their elections dependent on their I.E.s
Regardless of whether one agrees with (or was the primary individual to have accomplished) the CU decision, that distinction should not be difficult to acknowledge.

-Thomas J. Cares

Sent from my iPhone
On Mar 24, 2012, at 1:09 PM, JBoppjr at aol.com<mailto:JBoppjr at aol.com> wrote:

Thanks to Rick for informing us of another multi-million dollar corporate expenditure to corrupt the judiciary:

It’s Not Every Day the Severability Doctrine Makes the NY Times Op-Ed Page

Fortunately, if "corporations are not people" any more, we won't have to hear from the NYTimes any more. See New York Times v. Sullivan.

And their evil effort to use their vast corporate wealth to corrupt the judiciary can be stopped. Jim Bopp

In a message dated 3/24/2012 12:46:00 A.M. Eastern Daylight Time, rhasen at law.uci.edu<mailto:rhasen at law.uci.edu> writes:

Update on the South Carolina Voter ID Voting Rights Act Challenge

Posted on March 23, 2012 9:27 pm by Rick Hasen

Here.

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Posted in voter id, Voting Rights Act | Comments Off

“Obama’s Small-Dollar Percentage Down Slightly in February; Santorum’s Stayed High; Romney’s Stayed Low”

Posted on March 23, 2012 4:59 pm by Rick Hasen

The Campaign Finance Institute has issued this press release.

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Posted in campaign finance | Comments Off

Minnesota Voter ID Amendment Would End, Without Notice, Same Day Voter Registration

Posted on March 23, 2012 4:10 pm by Rick Hasen

Ending same day voter registration is not part of the ballot language for a constitutional amendment establishing a voter id requirement, leading Minn. Secretary of State Mark Ritchie to call it a “Trojan horse.”

Minnesota’s voter id proposal looks like a false solution to a non-existent problem.

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Posted in election administration, The Voting Wars, voter id | Comments Off

Lessig Responds to Critics About Supporting Roemer While Holding AE Leadership Position

Posted on March 23, 2012 4:06 pm by Rick Hasen

Go to the bottom of the comments on this post at Irregular Times. From my read of Lessig’s comments, it appears that AE is touting him as part of their leadership in ways that are inconsistent with his own understanding of his role: “My only activity with them has been to raise criticisms and concerns with their management. I helped people concerned about the voting technology get access to the staff. I have raised concerns about how they frame priorities.”

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Posted in third parties | Comments Off

“Photo ID marches on, but critics vow litigation”

Posted on March 23, 2012 3:59 pm by Rick Hasen

The latest from Minnesota.

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Posted in election administration, The Voting Wars, voter id, Voting Rights Act | Comments Off

Will Buddy Roemer Pick Abramoff or Lessig as His VP Choice on AE Ticket?

Posted on March 23, 2012 3:25 pm by Rick Hasen

Or maybe someone else.  Roemer has promised we will be “shocked, pleased and surprised.”

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Posted in Uncategorized | Comments Off

“Romney’s road to nomination paved by dedicated delegate counter”

Posted on March 23, 2012 2:03 pm by Rick Hasen

WaPo offers this profile of Katie Biber Chen.  See also this brief GQ profile in which I am quoted on the importance of Biber’s work for Romney.

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Posted in election law biz | Comments Off

“Republican primary turnout rebounds, is up overall”

Posted on March 23, 2012 1:45 pm by Rick Hasen

The Fix reports.

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Posted in political parties, primaries | Comments Off

“Congressional Redistricting Matters, and It’s Hurting This Country: a Response to Michael Barone”

Posted on March 23, 2012 1:42 pm by Rick Hasen

FairVote responds.

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Posted in redistricting | Comments Off

“Mistrial declared in Troy ballot fraud trial”

Posted on March 23, 2012 9:00 am by Rick Hasen

I had missed this development.
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