Campaign Finance Reform and the Media
Campaign Finance Reform
And The Media
University of South Florida St. Petersburg
Journalism and Media Studies
Maxwell Waldron
ARP
Spring 2014
Committee:
Professor David M. Snyder – Chair
Dr. Antone Silvia, PhD
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Campaign Finance Reform and the Media
INTRODUCTION
The Citizens United v. Federal Election Commission decision of 2010 was generally
opposed by the news media and the Democrat Party shortly after the ruling. The New
York Times contributor, Tobin Harshaw (2010), editorialized that it “has paved the way
for corporations to use their vast treasuries to overwhelm elections and intimidate elected
officials into doing their bidding” (para.2). Two years later, a January, 2012 Huffington
Post columnist, Dan Froomkin (2012), listed over a dozen recent editorials decrying
Citizens United from across the country and stated that, with the exception of some
conservative news organizations, Citizens United “is widely seen [by editorial boards] as
a grave and very real threat to democracy” (para.4).
But what has been the actual effect of Citizens United on campaign spending, and how
much of it is from the media itself? Editorial boards write their condemnations of
Citizens United while blithely ignoring their own substantial and unregulated influence
on elections, which largely skews toward one side of the political spectrum. It’s difficult,
if not impossible to place a value on that considerable influence, but it is much more
influential and ubiquitous than any openly partial speech of non-media interests. An
examination of changes in campaign spending must also scrutinize how reporting impacts
those campaigns as well.
The campaign finance reform debate primarily concerns monetary and in-kind
contributions to candidates, political action committees and other organizations by
individuals, corporations and unions. Some of those contributors also happen to be media
companies and parent entities that either own or control news organizations and other
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information outlets. Moreover, these corporations, and the people who work for them,
also have business and personal interests that are impacted by electoral outcomes.
The 2010 Supreme Court decision in Citizens United v.FEC (U.S.08-205) has given more
First Amendment powers to campaigns and PACs, and in theory, put their speech rights
more on par with those of the media. Campaign finance laws place almost no restrictions
on the type and nature of speech in which media and news organizations may engage.
However, the media has enormous influence over elections in what they report and how it
is reported. The Citizens United decision gave corporations, unions and individuals more
influence over that agenda by lifting some of restrictions to their speech. While the 2008
and 2012 presidential elections were very different in nature and tone, the biggest
difference from a media perspective was that case.
BACKGROUND
Campaign finance laws in the United States were first introduced on the federal level
in the early 20th century, and several were passed over the ensuing years, culminating
with the Federal Election Campaign Act (FECA) of 1972 which was designed to
consolidate and strengthen earlier campaign legislation and also concerned itself with the
public disclosure and limitation of federal election campaign contributions. It also limited
the amount individuals and groups could contribute to candidates and restricted the
amount of money candidates could contribute to their own campaigns. FECA was
substantially amended in 1974, most notably with the creation of the Federal Election
Commission. Its stated mission was, “…to disclose campaign finance information, to
enforce the provisions of the law such as the limits and prohibitions on contributions, and
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to oversee the public funding of Presidential elections.”(fec.gov.2014, para.1) In 1975,
the law was challenged in Buckley v. Valeo (U.S.75-436), which resulted in the Supreme
Court upholding most of the FECA’s provisions, with the exception of expenditure
ceilings. The court held those restrictions to be “direct and substantial restraints on the
quantity of political speech,” and therefore unconstitutional. (fec.gov.law, 2014)
The Bipartisan Campaign Reform Act (BCRA), also known as the McCain-Feingold
Act after the bill’s sponsors, Senators Russ Feingold (D-WI) and John McCain (R-AZ),
was passed on November 6, 2002. The main provisions of the bill included a ban on
unrestricted, so-called “soft money” at the federal level. The law also added donor
disclosure requirements to groups producing electioneering speech, the sources of which
had to be disclosed if $1,000 or more was donated. BCRA also banned independent
electioneering communications by corporations, unions, and non-profits up to 60 days
prior to a general or mid-term election 30 days prior to a primary, and placed restrictions
on party expenditures for electioneering speech benefiting individual candidates. In the
ensuing years, the BCRA was challenged in McConnell v. FEC (2003,U.S.08-205) and
FEC v. Wisconsin Right to Life (2006, U.S.06-969), which struck down prohibitions on
“issue advocacy” advertising as unconstitutional. But it was the Citizens United decision
of 2010 that brought the most sweeping changes to campaign finance law.
THE MOVIE
During the 2004 election campaign, Citizens United filed a complaint with the FEC
charging that advertisements for the film Fahrenheit 911 and the film itself, which was
highly critical of the Bush administration’s actions relative to the terrorist attacks of
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September 11, 2001, were political advertising and thus subject to the blackout provisions
of the BCRA. The FEC dismissed the complaint, and ruled that the advertisements,
website and movie were bona fide commercial speech and did not constitute
contributions or expenditures under election law. In 2008, Citizens United produced its
own film called Hillary, The Movie, in which they expressed opinions as to what type of
President Hillary Clinton would be. Citizens United sought an injunction from the U.S.
District Court to be exempt from certain sections of the BCRA on first amendment
grounds. The injunction was denied by the court, citing the fact that the U.S. Supreme
Court had ruled all of these provisions constitutional in McConnell v. FEC. The case
ultimately found its way to the Supreme Court, where, in a 5-4 decision, the court held,
among other things, that corporate funding of independent political broadcasts could not
be limited under the First Amendment, and therefore, that section of the BCRA was
unconstitutional. In effect, the court ruled that corporations, unions and other associations
could use their own funds for direct advocacy. In the majority opinion written by Justice
Kennedy the court said, “If the First Amendment has any force, it prohibits Congress
from fining or jailing citizens, or associations of citizens, for simply engaging in political
speech” (litigation-essentials, para.15,spring2010).
EFFECT ON CAMPAIGN CONTRIBUTIONS
The result of this decision was an increase in total campaign spending, particularly
from outside groups. Open Secrets Center for Responsive Politics (2012) compared the
presidential and congressional elections of 2008 and 2012, total campaign spending from
all sources increased from approximately $5.3 billion to $6.3 billion, or almost 19%.
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However, that was far less than the 35% increase in total spending between the somewhat
analogous 2000 and 2004 elections. Moreover, total spending on the 2012 presidential
election decreased from the $2.8 billion spent in 2008 to $2.6 billion. The total increase
and more was reflected in the congressional races, in which spending increased by a
historic 48%, going from $2.5 billion in 2008 to almost $3.7 billion in 2012.
This large discrepancy is probably best explained in economic terms. Contributions to
Senate and House races are more efficient, as the candidates are more accessible and
presumably more responsive to contributors concerns. The same dollar spent at the state
or local level is viewed as having a better return on investment than one spent on a
national race in which the candidates have only a cursory understanding of the issues that
impact the electorate most directly. That dollar is also proportionally more impactful to
the campaign budgets of congressional candidates, particularly those of challengers who
do not enjoy the advantages of incumbency. Furthermore, contributions in congressional
races are meant to directly influence legislation, which is only indirectly and partially
controlled by a president. Clearly, the significant jump in contributions at the
congressional level reflects a pent up demand for that influence, which was much more
limited prior to the Citizens United decision.
However, the spending by groups outside of campaigns and political parties is the
primary concern of Citizen’s critics, as that speech is now only controlled by the
speakers. But although outside spending rose significantly in absolute dollar terms after
the Citizens decision, the increase was much less significant in percentage terms, and
more related to McCain-Feingold than Citizens United. Writing in The New York Times
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Magazine, Chief Political Correspondent, Matt Bai (2012), notes that outside spending
increased 164% from 2004 to 2008 and 135% from 2008 to 2012. “And this suggests,”
said Bai, “that the rising amount of outside money was probably bound to reach ever
more staggering levels with or without Citizens United. The unintended consequence of
McCain-Feingold was to begin a gradual migration of political might from inside the
party structure to outside it” (para.17).
MEDIA TONE AND ATTITUDES
Lost in all of this discussion is the unregulated influence of news organizations,
which, in terms of sheer volume, have a much louder voice than any campaign
contributor. The Pew Research Journal Project published reports entitled “Winning the
Media Campaign” (2012) after both the 2008 and 2012 election. In those reports, Pew
examined the tone of election news coverage from over 2,400 stories at 48 popular news
outlets. They measured not only whether a story was positive or negative, but neutral as
well. In that way they include all stories, and judge each one separately. The Project
measures coverage by story, and for a story to be deemed as having a negative or positive
tone, it must be clearly so, not a close call: for example, the negative assertions in a story
must outweigh positive assertions by a margin of at least 1.5 to 1 for that story to be
deemed negative.
The 2008 study found that 36% of the stories about Barack Obama were clearly
positive in tone, 29% negative, and the rest mixed or neutral. On the other hand, only
14% of the coverage for John McCain was clearly positive with 57% deemed as clearly
negative. During 2012, news coverage was decidedly more balanced, but still more
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favorable to Barack Obama. In that election, Pew Research found that 19% of Barack
Obama stories were clearly favorable to the candidate, 30% unfavorable which is an 11%
differential. Republican candidate Mitt Romney received 15% favorable coverage and
38% negative, for a differential of almost twice that of Obama at 23%. Based upon
journalist’s self-identification, numerous studies have concluded that election coverage is
skewed toward Democrats and the left. The most recent and reliable study was also
done by The Pew Research Center and published through the Indiana University School
of Journalism in 2006. (2012) It found that, “In the most recent survey, 40% of journalists
described themselves as being on the left side of the political spectrum (31% said they
were “a little to the left” and 9% “pretty far to the left”). By comparison, the report cited
polling that shows the general public as being considerably more to the right: According
to 2002 Gallup data in their publication, The American Journalist, (2012) only 17% of
the public characterized their political attitudes as leaning leftward, and 41% identified
themselves as tilting to the right. (para.3-5). No one expects journalists to be completely
unbiased, just fair. However, as one’s political tilt moves toward one end of the spectrum,
it becomes more difficult to prevent the perception of what is fair from moving in that
direction as well. No one is immune from confirmation bias, and reporters are no
exception.
MEDIA CAMPAIGN CONTRIBUTIONS
In terms of campaign contributions, media companies in general gave much more
money to Barack Obama than Mitt Romney in the 2012 election. In 2012, journalist Amy
Chozick wrote a piece about contributions of employees and PAC’s of major media
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companies to both campaigns. Fox parent News Corp (FNC), gave $58,825 to the Obama
campaign and $2,750 to Romney’s, while Time Warner (CNN, HLN, TIME Inc.)
contributed $191,834 to Barack Obama and $10,750 to Mitt Romney. Similarly, Comcast
(NBC, MSNBC) favored Obama with $206,056 in contributions and only $20,500 to Mitt
Romney. Notably, the supposedly conservative News Corp, not only contributed twenty
times more to Barack Obama than Mitt Romney, it gave far less in the aggregate than its
more ‘mainstream’ counterparts. Yet, despite the fact that News Corp’s flagship property,
Fox News Channel, has only a small fraction of the combined audience its competitors
enjoy, the channel consistently draws an inordinate amount of ire from Democrats and
the left for its relatively more conservative bias. As such, it could reasonably be asserted
that opposition to corporate participation in elections may have less to do with the
amount of influence, and more to do with certain voices having any influence at all.
However, the explosive growth of internet usage in general and social media in
particular, is changing the way in which elections are influenced to a degree not
contemplated by any law or Supreme Court decision. As a relatively inexpensive form of
communication open to virtually anyone, the internet has leveled the playing field of
electoral speech to the detriment of the legacy media. In their 2013 report, “The State of
the News Media,” (2012) Pew Research found that, “In the 2012 campaign, only about
one quarter of the statements in the media about the character and records of Barack
Obama and Mitt Romney came directly from journalists while about half came from
political partisans. In 2000, half of the statements about the presidential candidates came
from the media and only about one-third from the partisan” (para.2). That statistic does
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not control for changes in audience size during those twelve years, but it does indicate
that openly biased sources of information now make up a larger share of the amount of
electoral speech. More partisan cable news shows explain some of the increase, but the
electorate can now receive and deliver information in ways not possible in 2000, at a
fraction of the cost to communicate through traditional media. Increasingly, candidates,
parties, groups, and individuals can bypass traditional media filters and communicate
directly with voters at any time through Twitter, Facebook, podcasts, and a host of other
digital services, with more on the way.
McCUTCHEON V. FEDERAL ELECTION COMMISSION
During the writing of this paper, The Supreme Court of the United States (SCOTUS)
handed down its ruling in the case of McCutcheon v. Federal Election Commission (U.S.
12-536) on April 2, 2014, and overturned the aggregate limits on contributions to federal
candidates. In that suit, Atlanta businessman and Republican donor, Shaun
McCutcheon, challenged the aggregate limits on campaign contributions of the BCRA.
For the 2011-2012 election cycle, those limits were set at $46,200 for federal candidates
and $70,800 for national parties, or an $117,000 aggregate limit from any one
contributor. With a contribution maximum of $2,500 per candidate, an individual is
limited under the BCRA as to the amount of candidates to which they may lend financial
support. McCutcheon intended to give money to twelve more candidates than the sixteen
he had already donated to during the 2011-2012 election cycle, but could not without
violating the aggregate contribution limits of the BCRA. (supremecourt.gov. 2014)
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Writing for the majority, Chief Justice John Roberts began his opinion by saying,
“There is no right more basic in our democracy than the right to participate in electing
our political leaders…and those who govern should be the last people to help decide who
should govern.” He went on to decide, “An aggregate limit on how many candidates and
committees an individual may support through contributions is not a ‘modest restraint’ at
all. The Government may no more restrict how many candidates or causes a donor may
support than it may tell a newspaper how many candidates it may endorse.”
(supremecourt.gov/opinions,2014) Indeed, newspapers routinely endorse dozens of
candidates for elective office on the federal, state and local level. There are no restrictions
on this particular type of corporate and individual speech, even if the publication is
owned by another corporation having nothing to do with media at all. Yet even the bare
whisper of government control over any aspect of their endorsements, commentary or
news coverage would receive almost universal condemnation, and rightly so. However,
the reaction by most news organizations to the McCutcheon decision have been negative,
and risibly composed as if those writing them have no influence, nor any personal or
business interest in the outcome of any election, when nothing could be further from the
truth.
The response by The New York Times to the McCutcheon decision illustrates that
attitude well in their editorial entitled “The Court Follows the Money” (2014), After
denouncing the court’s ruling as a continuation of “its crusade to knock down all barriers
to the distorting power of money on American elections,” The Times went on to say,
“The McCutcheon decision is less about free speech than about giving those few people
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with the most money the loudest voice in politics.” (para.2,4) According to the Alliance
for Audited Media, Neal Lulofs (2013) reported The New York Times has the second
largest circulation of any daily news publication, behind only the Wall Street Journal,
which applauded the decision. As of March 31, 2013, The Times had a combined average
daily print and digital circulation of 1,865,318. On Sundays, The New York Times is
number one with a circulation of 2,322,429. But apparently, The New York Times
believes its voice is small and the money used to operate its publication has no ‘distorting
power’ on elections. That voice can be rather predictable however, when we consider the
fact that The Times has endorsed a Democrat in every presidential election since 1960.
(nytimes/interative, 2012)
CONCLUSION
All of these laws attempt to limit the corrupting influence of money in politics, but in
doing so they - and many in the media - ignore the half of the equation. If the government
did not insert itself into so much of the economic and personal affairs of American
industry, and Americans at large, then there would be less interest in influencing its
decisions. The reason there is so much money in politics is because it is an effective way
of influencing legislation in favor of the contributor. The argument is always made that
campaign finance reform will reduce the corrupting influence of money in politics. But
what is not mentioned is the real possibility, and probability, that already corrupt
incumbent politicians will demand money from industries, businesses and others in
exchange for promises to protect them from harm or advance their interests through
legislation. Instead of fretting over how much money influences government, perhaps we
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should ask how much of that influence is due to politicians exacting tribute as unspoken
extortion. How many contribute to candidates and parties out of the fear that not doing so
could result in unfavorable treatment in hopelessly complex legislation, in which one
sentence can single out one industry or business? How often do these organizations
contribute to local, state or federal candidates and party organizations out of the fear that
not doing so could invite the scrutiny of myriad regulatory agencies?
But even a corrupt politician cannot afford to stray far from their public positions, at
least not too obviously. Most contributions are given to parties and candidates who are
already pre-disposed to support their positions, as it is easier to influence an office holder
when your interests are closely aligned with their public image. Teachers unions and
academia in general, give far more to Democrats than Republicans, partly because they
financially benefit from government largess and their substantial control over the
education system. The National Rifle Association mostly gives to Republicans, as they
are generally strong supporters of the Second Amendment. Democrats are far less likely
to support the right to keep and bear arms, but the NRA does support the handful that
does, despite their more liberal positions on other issues. So it is not clear that politicians
will routinely take positions on issues they otherwise would not have without campaign
contributions, although it would be naïve to say it doesn’t happen. It is also not clear that
money in and of itself is determinative of an election’s outcome. While it certainly helps,
there are many instances of less well financed candidates beating wealthier opponents,
and the failed presidential candidacies of William Randolph Hearst, Ross Perot, Steve
Forbes and others, also attest to the fact that campaigns are not just about money.
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But the most serious inherent problem with all of these campaign finance laws is that
they limit speech based on presumptions as to the motives of the speaker, and treat some
as being intrinsically more virtuous and deserving of First Amendment rights than others.
Nowhere is that more obvious than the treatment of media corporations. These companies
have a great deal of influence on the outcome of elections, yet none of these laws restrict
their speech in any way. When The New York Times endorses a candidate or slants its
reporting by commission or omission as to a candidate, party, or issue, the law does not
require them to disclose how their own interests guide those explicit and implicit
opinions. When CBS reported a false story about George W. Bush’s National Guard
service less than two months before the 2004 presidential election, the question of
whether campaign finance laws were broken never came up, because CBS is exempt as
being a member of the press.
These discrepancies bring up the larger issue of whether the federal government has
any right at all to limit speech under its enumerated powers. The First Amendment
clearly says that “Congress shall make no law…abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.” It is an unqualified demand that does not
provide congress with the power to select certain groups or individuals for unequal or
special legal treatment in the exercise of pre-existing rights the amendment guarantees.
Certainly, elections at that time were influenced through any number of expenditures by
groups or individuals, but the founders did not see a need to address the issue at all. They
clearly felt those freedoms were too precious and fragile to allow the federal government
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to parse and selectively protect those rights, and obviously, they never envisioned a
federal government having so much power that anyone would feel an ongoing need to
exercise massive influence on its behavior. The First Amendment also does not restrict
those rights when individuals organize themselves as corporations, or any other entity.
Yes, corporations, unions and other people and organizations promote candidates they
believe will act in their best interest. It is called “lobbying,” which has existed since the
founding of this country. Lobbying is one of the primary ways the people’s voice is heard
by the government, which many have now deemed a form of corruption in and of itself.
Whether done by an individual or group of citizens, lobbying, in essence, is merely the
exercise of First Amendment rights.
Further, the Bill of Rights preamble, which is routinely forgotten by many, says that
with regard to federal government that states “…expressed a desire, in order to prevent
misconstruction or abuse of its powers, that further declaratory and restrictive clauses
should be added:” But constitutional arguments today revolve almost exclusively around
Supreme Court precedents that have incrementally reduced these enduring and
inalienable rights. It is fashionable in some quarters to view those who insist on
adherence to these universal and undying principles as being quaintly backward. But they
do so at their own peril, for these rights are meant for all people at all times, and the
rationales for their dilution can, and will eventually be used against them.
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REFERENCES
Bai, M. (2012). How much has citizens united changed the political game?
New York Times Magazine. Retrieved from
<http://www.nytimes.com/howmuchhascitizensunitedchangedthepoliticalgame>.
Chozick, A. (2012). Donations by media companies tilt heavily to obama. The New York
Times. Retrieved from
http://mediadecoder.blogs.nytimes.com/2012/08/22/donations-by-mediacompanies-tilt-heavily-to-obama/
Citizens United v. Federal Election Commission. (u.s. 08-205). Cornell journal of public
policy, lexis nexis, spring 2011. Retrieved from
http://litagation-essentials-lexisnexis.com/webcd/app
Editorial. 2010, jan.21.The court’s blow to democracy. The New York Times. Retrieved
from
http://www.nytimes.com/2010/01/22/opinion/22fril.html
Editorial. 2012, oct.27. NY times endorsement through the ages. The New York Times
Opinion Pages. Retrieved from
http://www.nytimes.com/interactive/2012/10/28/opinion/presidentialendorsement-timeline.html?ref=editorials
Editorial. 2014, apr.3. The court follows the money. The New York Times. Retrieved from
<http://www.nytimes.com/2014/04/03/opinion/the-court-follows-themoney.html?partner=rssnyt&emc=rss>.
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Froomkin, D. (2012). Citizens united seen as root of evils by editorial writers across
democracy." Huffington Post, para.4. Retrieved from
http://www.huffingtonpost.com/2012/01/10/citizens-unitededitorials_n_1197330.html
Harshaw, T.(2010 Jan.). Put your money where your politics are. Opinionator,
The New York Times, para.2 Retrieved from
http://opinionator.blogs.nytimes.com/2010/01/22/put-your-money-where-yourpolitics-are/.
Lulofs, N. (2013,Apr). top 25 u.s. newspapers for march 2013.
Alliance for Audited Media. Retrieved from
http://www.auditedmedia.com/news/blog/top-25-us-newspapers-for-march2013.aspx
McConnell v Federal Election Commission. u.s 08-205 (2003) Brennan Center for
Justice. New York University of Law. Retrieved from
https://www.brennancenter.org/legal-work/mcconnell-v-fec-bipartisan-campaignreform-act
McCutcheon v Federal Election Commission. u.s. 12-536 (2014). united states supreme
court reporter of decisions Retrieved from
http://www.supremecourt.gov/opinions/13pdf/12-536_e1pf.pdf
The Media and Campaign 2012. (2012). The state of the news media 2013, para 2.
Pew research center's project for excellence in journalism. Retrieved from
http://stateofthemedia.org/2013/special-reports-landing-page/
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The Money Behind the Elections. (2012) Open secrets center for responsive politics.
Retrieved from
https://www.opensecrets.org/bigpicture/
United States Federal Election Commission Law and Regulation, (2014). federal election
campaign act. federal election commission. Retrieved from
http://www.fec.gov/law/feca/feca.shtml
United States Government. (2014). campaign finance law quick reference. federal
election commission. Retrieved from
http://www.fec.gov/press/bkgnd/bcra_overview.shtml
Winning the Media Campaign. (2006 Oct.). Pew research journalism project analysis.
The American Journalist. Retrieved from
http://www.journalism.org/2006/10/06/the-american-journalist
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