I am just back from Atlanta, having run into Rick Hasen at the
Dallas airport.  Most of the flights into Southern California were cancelled
today, because of fires.  Rick's flight to Burbank was cancelled, and he had
been waiting in Dallas for several hours when I showed up.  He was on the
waiting list for my flight but could not get on.  He had reservations on a
flight leaving two hours later, and let's hope he got home with no more
trouble.  In the meantime, my flight to Burbank landed almost exactly on
time.  Is it possible that this is not a perfectly just world?

	Anyway, I wanted to chip in on yesterday's "freedom of the press"
discussion, which I've just read.  Corporations may be prohibited from
making independent expenditures to support candidates.  But there is a
statutory exception for the press in federal law and in most other law, but
apparently not in New Jersey.  (Of course, it is irrelevant what New Jersey
statutes say about elections, since the New Jersey Supreme Court does what
it pleases, in any event.)  In my opinion, the press exemption should be
regarded as constitutionally compelled.  How could we possibly imagine we
had a system of freedom of the press and freedom of speech if the press were
not free to support candidates as it chooses?

	Now, some of you say that the press exemption does not apply to a
medium owned or controlled by the candidate, because the rationale for
exempting the press does not apply to that medium.  Why not?  Because
ordinarily we expect the press to have a certain independence, which
typically will not be the case if a candidate is the owner.  Now interesting
questions have been raised and debated about various types of borderline
cases, such as where the medium lacks independence for other reasons, such
as being owned by a friend of the candidate.  But let's consider the pure,
paradigmatic case.  A newspaper, which ordinarily looks and acts like a
regular newspaper, is owned by a candidate, and with respect to that
candidacy the newspaper is nothing but a shill, supporting the candidacy,
attacking the opponents, and not opening its pages to any contrary views.

	It is plausible for you to say that in this case, the newspaper is
not acting like newspapers ordinarily act, and perhaps it is plausible to
say that for that reason, it is not within the rationale for the press
exemption.  But if the newspaper is not acting like a newspaper, what is it
acting like?  IT IS ACTING LIKE THE CANDIDATE!  And the candidate is
entitled to spend without limitation.  Ah, you say, but the candidate is
using the corporate form, and corporations can be regulated.  Well, I am no
tax expert, but I believe that in tax law, certain corporations are so much
the alter ego of the owner that the corporation and the individual are taxed
more or less as if the corporation did not exist.  Whether or not our
newspaper corporation is such a corporation (Subchapter S?) is not the
point.  The point is that if tax law can recognize the real identity of an
individual behind the corporate form, must not campaign law do so also, when
the First Amendment is at stake?  And in our paradigmatic hypothetical, the
argument against application of the press exemption is solely based on the
identity of the newspaper with the candidate.  It seems to me that to the
extent you succeed in saying that this newspaper is not entitled to the
press exemption, to that precise extent you establish that its expenditures
should be regarded as those of the candidate, and therefore unlimitable.

	But it isn't fair, some of you have argued.  True.  But neither is
it fair that a candidate can spend from his own funds without limit, when
his opponents are subject to contribution limits.

     Best,

     Daniel Lowenstein
     UCLA Law School
     310-825-5148