Subject: Re: Freedom of the press
From: "Bauer, Bob-WDC" <RBauer@perkinscoie.com>
Date: 10/25/2003, 8:58 AM
To: "'rick.hasen@lls.edu'" <rick.hasen@lls.edu>, "'VOLOKH@mail.law.ucla.edu'" <VOLOKH@mail.law.ucla.edu>
CC: "'election-law@majordomo.lls.edu'" <election-law@majordomo.lls.edu>


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.