Two days before Christmas in 1967, President Lyndon Johnson, visiting the Vatican, presented Pope Paul VI with a foot-high bust of Lyndon Johnson. Small choices can reveal the character of a person.
Or of an institution. Consider the New York Times' choices concerning MoveOn.org's issue advocacy ad calling Gen. David Petraeus "General Betray Us" and accusing him of "cooking the books for the White House."
In June, the Times was in high dudgeon it knows no other degree of dudgeon about the Supreme Court's refusal to affirm a far-reaching government power to suppress political speech. The court ruled that a small group of Wisconsin residents had been improperly refused the right to run an issue advocacy ad urging the state's two senators not to filibuster the president's judicial nominees.
Because one of those senators was seeking reelection, the group's ad was deemed an "electioneering communication" one that "refers to" a candidate for federal office. McCain-Feingold bans such communications by corporations, including incorporated nonprofit citizens' groups, in the weeks before an election when the Times' editorial page is in full-throated enjoyment of speech rights it would deny to others.
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Concurring with the court's judgment that the Wisconsin group's ad should have been permitted, Justice Antonin Scalia noted that although McCain-Feingold was written to prevent "corrosive and distorting effects" by entities with "immense aggregations of wealth," it actually muzzled with the Times' strenuous approval a small group of Wisconsin residents.
Less than three months after the Times excoriated the court for weakening restrictions on issue ads, the paper made a huge and patently illegal contribution to MoveOn.org's issue advocacy ad. The American Conservative Union, under Chairman David Keene, immediately filed a complaint with the Federal Election Commission, noting that the purchaser of the ad, MoveOn.org Political Action, is a registered multicandidate political committee regulated by the mare's-nest of federal laws and rules the multiplication of which has so gladdened the Times.
The Times, a media corporation that is a fountain of detailed editorial instructions about how the rest of the world should conduct its business, seems confused about how it conducts its own. The Times now says the appropriate rate for MoveOn.org's full-page ad should have been $142,000, a far cry from $65,000, which is what the group paid. So the discount of $77,000 constitutes a large soft-money contribution to a federally regulated political committee. The Times' horror of such contributions was expressed in its enthusiasm for McCain-Feingold.
FEC regulations state: "The provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services is a contribution." Individuals are limited to contributing $5,000 in a calendar year; corporations such as the Times are forbidden to make any contributions.
MoveOn.org is going to send the Times a check for $77,000. The Times has apologized, which is sweet, but normally the FEC does not accept apologies in lieu of fines. And often FEC fines are levied after intrusive investigations into motives and intentions. Will there be such an investigation of the Times? The FEC is not lenient when dealing with individuals who, less lawyered-up than the New York Times Co., fall afoul of regulations much more recondite than the bright line the Times ignored.
Bob Bauer, a Democratic lawyer specializing in laws regulating political speech, notes not approvingly that the Times supposedly has a policy of rejecting ads involving "personal attack" speech. But the Times accepted MoveOn.org's ad accusing a soldier of betraying his country. According to the Times' public editor, a Times official said the ad was "a comment on a public official's management of his office."
Publisher Arthur Sulzberger Jr., defending the decision to run the ad, said: "If we're going to err, it's better to err on the side of more political dialogue. . . . Perhaps we did err in this case. If we did, we erred with the intent of giving greater voice to people." Bauer notes that Sulzberger might have used words from a Supreme Court decision: "In a debatable case, the tie is resolved in favor of protecting speech." And: "Where the First Amendment is implicated, the tie goes to the speaker, not the censor." So spoke Chief Justice John Roberts in the Wisconsin decision that Sulzberger's paper denounced because it would magnify the voices of, among other things, "wealthy corporations." The Times Co.'s 2006 revenue was $3.3 billion.
The Times' performance in this matter confirms an axiom: There can be unseemly exposure of mind as well as of body.