Oh that Pesky First Amendment!: The New York Times’ Take

December 18, 2006   •  By Brad Smith   •    •  
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This weekend the New York Times once again grabbed its Thesaurus of invective to tackle the issue of campaign finance reform.  Next time, we suggest they grab a copy of the First Amendment, too.  Surely a reasonably important newspaper such as the Times must have a copy of the First Amendment lying around somewhere.

What has the Times editorial writers frothing at the mouth this week (besides the fact that Fred Wertheimer said “jump“) is the FEC’s ruling on 527 organizations.  The inimitable Bob Bauer has already stolen our thunder on this one — his takedown is here — but we just want to emphasize a couple points.

Here is how the Times argues for regulation of 527s, with just a modest bit of First Year Con Law tossed in:

1) The Times: 527s are, “unregulated mudslinging money.”

The Constitution: Mudslinging, so far as we know, is protected First Amendment activity.  The Times’ editorial writers may wish to ask their lawyers about a case called New York Times v. Sullivan.

2) The Times:  the groups spent, “scores of millions.”  Indeed, “more than $950 million.”  It is “unlimited!” (OK, we added the exclamation point, but not the words).

The Constitution: It is unconstitutional to limit spending on campaigns.  The Times’ editorial writers may want to consult with their Supreme Court reporter, Linda Greenhouse, who recently covered the issue for the Times.  If they can’t find Greenhouse, it looks like their headline writers will do.

3) The Times: People are running ads that are “obviously partisan.”

The Constitution: It is so obviously unconstitutional to limit ads merely because they are partisan that, well, we don’t even have a case to cite.

The Times seems to forget that it needs a constitutional basis for regulating speech.  The fact that there is lots of speech, that it is partisan speech, and that it is speech critical of public officials are not constitutionally accepted bases for regulating it.  This isn’t the interpretation of we modest pundits here at CCP — this is the Supreme Court.

There is a lot of other nonsense in the Times’ editorial — there always is — such as the belief that if only the FEC had a “blanket regulation controlling candidate-oriented advertising” all this mess could be avoided.  We suppose it could, if the First Amendment were not a part of the Constitution — but we’ll spare for now any detailed analysis of the silliness.

We like to think the Times could be shamed into at least rational editorializing on the matter, but we suppose that the Times has long since passed the point of embarrassment in its campaign finance editorials.  Its rhetoric always heated, its facts routinely wrong, its understanding of the law feeble, there’s not much to say about the great enabler of First Amendment violations.

It’s just pathetic.

Brad Smith

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