Hmm; I'm not sure I quite understand this.  The post below suggests that
National Review *can* endorse Bill Buckley, and that even non-media
corporations should be able to.  But then he suggests that
"candidate[-]control[led]" magazines should be restrictable.  How exactly?
If by applying an Austin-like law (but not applying any media speech
exemption, because of the "candidate control"), then the National Review
would *not* be allowed to endorse Buckley, because that would involve the
spending of corporate funds on behalf of a candidate.  If by applying
federal law and treating all stories as coordinated with a candidate, then I
take it we'd have the same result, because then the stories would be
coordinated expenditures and thus treated like contributions, which
corporations can't engage in.  What am I missing here?  What precisely is
the proposal as to what "candidate-controlled" magazines and newspapers
should or shouldn't be allowed to do?
 
The post below also suggests that such magazines should be held liable ("a
remedy should be available") if they "exclude[the owner's] opponent from
coverage."  I take it that this would involve some exception from the Miami
Herald v. Tornillo principle, yes?  Newspapers and magazines are generally
entirely free to choose not to run certain stories -- but if they're
"candidate-controlled," then it seems they *must* run stories that cover the
opponent; am I understanding the theory right?  If so, is such an approach
sound, and how exactly would it be administered?  Would there also be a
requirement that the stories cover the opponent in some sort of "fair" or
"balanced" way, on the theory that a hit piece against the opponent is not
legitimate news reporting or commentary?  Who would decide this, and how?
 
I suppose these are the sorts of things that make people worry that campaign
finance law is indeed likely to have some pretty dangerous effects on First
Amendment rights.  It begins by just condemning contributions and
expenditures, but of course with an exception for the media, because
naturally no-one wants to suppress the freedom of the press.  But then it
turns out there are some media organizations -- "candidate-controlled" ones
-- that people do want to see controlled, because there seems to be little
difference between them and other corporations (just as opponents of
campaign finance speech restrictions argued originally, as a justification
for not restricting corporate expenditures at all).  Presumably the FEC
would then administer this, and impose various fair coverage constraints on
these newspapers, notwithstanding these usual First Amendment rules.  What
happens next, when people point out that there seems to be little difference
between these corporations and still other ones (e.g., ones owned by a
friend of the candidate, or by a major donor to the party)?  Or when people
point out that even independent newspapers can still engage in tacit but
corrupt quid pro quo deals with candidates via their offers of endorsement
or better coverage?  Or when people point out that even independent
newspapers are still corporations whose spending may have a "corrosive
effect"?
 
Eugene
 
-----Original Message----- 
From: Bauer, Bob-WDC [mailto:RBauer@perkinscoie.com] 
Sent: Sat 10/25/2003 11:58 AM 
To: 'rick.hasen@lls.edu'; 'VOLOKH@mail.law.ucla.edu' 
Cc: 'election-law@majordomo.lls.edu' 
Subject: Re: Freedom of the press
On the National Review hypothicals: Eugene seems to have altered the 
original hypo somewhat. The question is not whether National Review can 
endorse--of course, it can, as can even a corporation in a non-media line of

business. The question was what remedies may be available to opponents of a 
candidate controlling a paper who devoted it to the support of his campaign 
and excluded his opponent from coverage. And in the latter case, a remedy 
should be available. 

Rick is right--the campaign finance laws do not rest on individualized quid 
pro quo determinations. If they did, then spouses and parents would not be 
subject to the same contribution limits as other contributors. And for 
coordination purposes, the media corporation is still an "entity", separate 
and distinct from the candidate, and spends monies that are not the personal

funds of the candidate. 

The most effective defense of the distinction between candidate-controlled 
and other news media corporation is one based on practicality. The 
government's capacity for judging "bona fide" news stories and those 
"coordinated" with a candidate for political purposes is not obvious, and 
its attempt on its own initiative or the urging of others to draw that line 
would be, to many, frightening. B y focusing on candidate control, the law 
to date does only what it can reasonably and credibly do--the most one 
should ask for.  

PS Forbes had written his own column for his magazine, and theCommission 
originally objected to the continued column-writing after candidacy when his

columns seemed to track in substance his campaign themes. The agency 
reconsidered the project and wisely abandoned it.