Wednesday, July 28, 2010

Bloggers just dodged a bullet with DISCLOSE Act


Yesterday, S-3295, the Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act failed of cloture, 57-41 with one absence and one member voting "Present." From the weeping and gnashing of teeth from the bill's sponsors and their allies, "money has spoken" to sink the bill. In reality that vote is a holding action for the First Amendment to the Constitution, against an allied political and media establishment bent on re-establishing the Fairness Doctrine.

The Fairness Doctrine, as articulated first by Federal Communications Commission Chairman Wayne Coy (D) in 1949 (and not, as erroneously supposed, by Chairman Newton N. Minow, D, who served as Chairman under the Kennedy administration), basically said that any station manager allowing anyone to make a controversial statement in an FCC-licensed medium (first radio, then TV) must allow "equal time" for others to reply. The practical consequence was twofold:

  1. Station managements would air editorials and then "invite those having opposing viewpoints to request time to reply." The requestors were typically rank amateurs, and the contrast between the polished performances by the station managers and editorial directors on the one hand, and the unskilled performances by the reply requestors on the other hand, was often too painful even for regular devotees of the local Improv. (Gary Cooper, they weren't.) Result: the station's opinion carried the day, because the opponents often looked like unlearned rubes. (And indeed one memorable but fictitious editorial reply requestor, Archie Bunker as portrayed by Carroll O'Connor, deliberately acted like one.)
  2. Radio stations avoided "talk" and chose music, on the theory that music was value-free and morally neutral. That isn't so, actually, but that is not relevant here. What is relevant is that no one had an opportunity to talk about issues except for approved commentators, who often were given a free pass.

In 1969, in the case of Red Lion Broadcasting v. FCC, the Supreme Court held that FCC was correct in telling Red Lion Broadcasting that they must allow someone time to reply to someone who complained that he had been the subject of an ad hominem attack in the course of a "Christian Crusade" that aired on Red Lion stations. After that, no station manager or network programming director dared allow such hard-hitting commentary, fearing bedlam.

In the spring of 1987, FCC chairman Mike Fowler finally revoked the Fairness Doctrine, saying that TV and radio were no longer "scarce" as they once had been. Congress tried to enact the Fairness Doctrine into law then, but President Ronald Reagan vetoed that attempt. In the next year, a new talk jockey named Rush Hudson Limbaugh III inaugurated his "Excellence In Broadcasting Network" and singlehandly saved AM radio from stale-music oblivion. The rest is history--and more to the point, those "music" formats were history, as station after station changed formats to "talk."

What has this to do with the DISCLOSE Act? Everything. Read it for yourself, thanks to the good grassroots folks at OpenCongress.org. Contrary to the much-ballyhooed discussion involving this Act, and that it is a direct attempt to circumvent the Supreme Court's decision in Citizens United v. FEC, the DISCLOSE Act doesn't truly "amend the Federal Election Campaign Act of 1971," unless one counts moving a few punctuation marks as "amendment." The real meat of the Act is in its proposed amendment to 2 USC 431 Section 324, defining a "coordinated communication." This is either:

  1. "A publicly distributed or disseminated communication" other than one appearing in print (yes, print, not online) or a broadcasting station (and broadcasting does not mean cable, fiber, satellite, or anything other than ATSC, which is the new rabbit ears), that directly refers to any candidate for federal office within 120 days of the Presidential primary season or 90 days in advance of the Congressional primary, or
  2. Anything that reproduces any "campaign material," such as press releases, bumper sticker images, sign designs, or the like.

In other words: bloggers, and indeed anyone who contributes to an online-only site (like examiner.com), are the immediate targets. And so, too, are Fox News Channel, Fox Business Channel, the aforementioned Rush Limbaugh (except maybe for his printed newsletter and radio program--this time), and our favorite hosts Sean Hannity, Bill O'Reilly, Glenn Beck--and Judge Andrew Napolitano.

Less than two weeks ago, the Heritage Foundation laid out other objections to the DISCLOSE Act. Among them: it would be easy to forbid any corporation doing business in the United States to engage in campaign activity. The definition of a "foreign-owned corporation" is one in which 20 percent of the shares are foreign-held--and it doesn't matter whether the foreign shareholders are a few, or one (like a Baron Guy de Rothschild or a Lazard Brother), or many individual shareholders who happen to buy American shares that are traded on the London Exchange, the Paris Bourse, etc. And pointedly, labor unions are excepted--which was the specific reason why even Susan Collins, one of the Lamers from Maine, balked. (Her colleague Olympia Snowe said that it was "premature" to take up a measure about which "consensus" was lacking, whatever in James Madison's name that means.)

The implications of this bill go far beyond a mere prohibition against, say, the head of Volkswagenwerk AG trying to influence an election in order to win regulatory exceptions for VWs that don't apply to Fords (or to Government Motors models, the American answer to VWs). If this ever passes (and Senator Harry Reid craftily changed his vote from "Yea" to "Nay" to allow him to move to reconsider the bill later on), then after the bloggers are shut down, Rush Limbaugh (which those same Senators mention only while making warding-off gestures against the Evil Eye) will be the target of a complete shutdown, and AM radio will go back to playing that awful noise that once passed for music and that almost killed it.

True enough, Judge Nap would almost certainly have filed a lawsuit against the government (with Mark Levin as his co-counsel) to get the DISCLOSE Act declared unconstitutional. (That is, one hopes that the Judge would have realized the extent to which he

  1. would have standing, and
  2. would suffer injury.)

But support and defense of the Constitution cannot limit itself to filing suit when some unconstitutional act damages you. Some things require heading off at the pass--and then guarding that pass for as long as is necessary.

Yesterday, S-3295, the Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act failed of cloture, 57-41 with one absence and one member voting "Present." From the weeping and gnashing of teeth from the bill's sponsors and their allies, "money has spoken" to sink the bill. In reality that vote is a holding action for the First Amendment to the Constitution, against an allied political and media establishment bent on re-establishing the Fairness Doctrine.

The Fairness Doctrine, as articulated first by Federal Communications Commission Chairman Wayne Coy (D) in 1949 (and not, as erroneously supposed, by Chairman Newton N. Minow, D, who served as Chairman under the Kennedy administration), basically said that any station manager allowing anyone to make a controversial statement in an FCC-licensed medium (first radio, then TV) must allow "equal time" for others to reply. The practical consequence was twofold:

  1. Station managements would air editorials and then "invite those having opposing viewpoints to request time to reply." The requestors were typically rank amateurs, and the contrast between the polished performances by the station managers and editorial directors on the one hand, and the unskilled performances by the reply requestors on the other hand, was often too painful even for regular devotees of the local Improv. (Gary Cooper, they weren't.) Result: the station's opinion carried the day, because the opponents often looked like unlearned rubes. (And indeed one memorable but fictitious editorial reply requestor, Archie Bunker as portrayed by Carroll O'Connor, deliberately acted like one.)
  2. Radio stations avoided "talk" and chose music, on the theory that music was value-free and morally neutral. That isn't so, actually, but that is not relevant here. What is relevant is that no one had an opportunity to talk about issues except for approved commentators, who often were given a free pass.

In 1969, in the case of Red Lion Broadcasting v. FCC, the Supreme Court held that FCC was correct in telling Red Lion Broadcasting that they must allow someone time to reply to someone who complained that he had been the subject of an ad hominem attack in the course of a "Christian Crusade" that aired on Red Lion stations. After that, no station manager or network programming director dared allow such hard-hitting commentary, fearing bedlam.

In the spring of 1987, FCC chairman Mike Fowler finally revoked the Fairness Doctrine, saying that TV and radio were no longer "scarce" as they once had been. Congress tried to enact the Fairness Doctrine into law then, but President Ronald Reagan vetoed that attempt. In the next year, a new talk jockey named Rush Hudson Limbaugh III inaugurated his "Excellence In Broadcasting Network" and singlehandly saved AM radio from stale-music oblivion. The rest is history--and more to the point, those "music" formats were history, as station after station changed formats to "talk."

What has this to do with the DISCLOSE Act? Everything. Read it for yourself, thanks to the good grassroots folks at OpenCongress.org. Contrary to the much-ballyhooed discussion involving this Act, and that it is a direct attempt to circumvent the Supreme Court's decision in Citizens United v. FEC, the DISCLOSE Act doesn't truly "amend the Federal Election Campaign Act of 1971," unless one counts moving a few punctuation marks as "amendment." The real meat of the Act is in its proposed amendment to 2 USC 431 Section 324, defining a "coordinated communication." This is either:

  1. "A publicly distributed or disseminated communication" other than one appearing in print (yes, print, not online) or a broadcasting station (and broadcasting does not mean cable, fiber, satellite, or anything other than ATSC, which is the new rabbit ears), that directly refers to any candidate for federal office within 120 days of the Presidential primary season or 90 days in advance of the Congressional primary, or
  2. Anything that reproduces any "campaign material," such as press releases, bumper sticker images, sign designs, or the like.

In other words: bloggers, and indeed anyone who contributes to an online-only site (like examiner.com), are the immediate targets. And so, too, are Fox News Channel, Fox Business Channel, the aforementioned Rush Limbaugh (except maybe for his printed newsletter and radio program--this time), and our favorite hosts Sean Hannity, Bill O'Reilly, Glenn Beck--and Judge Andrew Napolitano.

Less than two weeks ago, the Heritage Foundation laid out other objections to the DISCLOSE Act. Among them: it would be easy to forbid any corporation doing business in the United States to engage in campaign activity. The definition of a "foreign-owned corporation" is one in which 20 percent of the shares are foreign-held--and it doesn't matter whether the foreign shareholders are a few, or one (like a Baron Guy de Rothschild or a Lazard Brother), or many individual shareholders who happen to buy American shares that are traded on the London Exchange, the Paris Bourse, etc. And pointedly, labor unions are excepted--which was the specific reason why even Susan Collins, one of the Lamers from Maine, balked. (Her colleague Olympia Snowe said that it was "premature" to take up a measure about which "consensus" was lacking, whatever in James Madison's name that means.)

The implications of this bill go far beyond a mere prohibition against, say, the head of Volkswagenwerk AG trying to influence an election in order to win regulatory exceptions for VWs that don't apply to Fords (or to Government Motors models, the American answer to VWs). If this ever passes (and Senator Harry Reid craftily changed his vote from "Yea" to "Nay" to allow him to move to reconsider the bill later on), then after the bloggers are shut down, Rush Limbaugh (which those same Senators mention only while making warding-off gestures against the Evil Eye) will be the target of a complete shutdown, and AM radio will go back to playing that awful noise that once passed for music and that almost killed it.

True enough, Judge Nap would almost certainly have filed a lawsuit against the government (with Mark Levin as his co-counsel) to get the DISCLOSE Act declared unconstitutional. (That is, one hopes that the Judge would have realized the extent to which he

  1. would have standing, and
  2. would suffer injury.)

But support and defense of the Constitution cannot limit itself to filing suit when some unconstitutional act damages you. Some things require heading off at the pass--and then guarding that pass for as long as is necessary.

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