Citizens United, before the Supreme Court for argument this morning, nicely shows how experience with McCain-Feingold’s complexities has tested press opinion.  Not all press: not,  of course, the New York Times.  The Times holds out, firm and unyielding, against all ambiguities.  It represents the old media school of reform, and it barely seems to notice that there has been a drop-off in attendance.

     The Reporters Committee for Freedom of the Press has filed a brief with the Court, joining in an attack on the law as applied to the documentary, Hillary: The Movie.  It is troubled that the law would crunch under-feet a “documentary”: it fears for the further applications of the law, on different facts, when the line between constitutionally protected press opinion and regulated speech is declining in visibility. 

     To the Reporters Committee, what separates the one type from the other is neither “objective” nor “relatively intuitive”.  And it notes that a news industry in the grip of change, turning increasingly to electronic forms of publishing, is ill-served by rules that too rigidly classifies media forms.

     The New York Times: its appetite for the old wars never exhausted, delivers the same stale fare to its readers.  To be fair—on one point, the Times is clear and it is correct:  that the Court has the chance to overrule Austin v. Michigan Chamber of Commerce and should not take it.  The case is not all about Austin, however: and even counsel for Citizens United is arguing a far narrower ground for victory.  The Times could care less.

     For the Times, it is all the same: The court should reject all of Citizens United’s claims.”

     And the reason for this wholesale dismissal of all of Citizens United”s arguments?  That the failure to hold the line here will bring on, or near, the collapse of the campaign finance laws—or, more precisely, that part of it which is McCain-Feingold.  “If Citizens United prevails, it would create an enormous loophole in the law and allow corporate money to flood into partisan politics in ways it has not in many decades.” 

     For years, at a different time, these dark prophecies passed for argument about the campaign finance laws and carried weight with a wide audience, leading the press on this issue.  No more.  The Reporters Committee has shown that there is room now elsewhere in the press for more careful thought about modern campaign regulation. 

     The Times could have risked this care while still arguing for preserving Austin and for the application of at least disclosure requirements.  It did not bother.

Bob Bauer