By Bradley A. Smith
Prosecutors argue that the publication’s hush money payments were illegal campaign expenditures because they were paid in order to help Trump’s campaign. (I and others have argued that such payments are “personal use” under the statute and not campaign expenditures.)
Since Pecker was granted immunity, it has been widely speculated that he and the Enquirer would otherwise have faced prosecution for campaign finance violations. The interesting wrinkle is that campaign finance laws typically don’t apply to the media. A statutory “press exemption” shields media outlets from these laws, including disclosure and reporting requirements. Before the Supreme Court affirmed the First Amendment right of corporations and unions to speak about and spend money on elections in Citizens United, the press exemption is what allowed newspapers – virtually all of which are owned by incorporated entities – to make endorsements.
But the media’s ability to politic is not absolute. A newspaper can’t, for example, buy billboards telling you how to vote. But the list of things a newspaper can do to influence voters is significant. It can run editorials endorsing or opposing a candidate; it can run a glowing profile of a candidate, knowing its coverage and imprimatur may be used to promote the campaign and be worth thousands of dollars in paid media; and it can spend large sums to gather and publish dirt on candidates it opposes. The last example is particularly relevant here.
If the Enquirer violated campaign finance laws by spiking the stories it purchased, would it also be illegal to spike stories it spent money to research? Both things happen in the media world, but the latter is likely far more common. If a news outlet devotes substantial resources to digging on a candidate, then chooses not to publish what it found because it doesn’t like the political implications, would that be illegal?