OPINION:
T he United Kingdom, whose history is most closely associated with our own, naturally also provides a harbinger of our dystopian future if our regulatory pathologies continue unchecked. From the country that gave us George Orwell’s “1984,” a cautionary tale about the dangers of rampant statism, and the National Health Service, whose rapacious rationing of medical treatment foretells the folly of recently passed health care legislation, now comes the News of the World scandal, an allegory about the unintended consequences of ham-fisted campaign finance regulation.
While the immediate concern centers around the British tabloid’s resort to phone hacking to generate stories, the controversy has quickly enveloped Parliament and Scotland Yard and cast a spotlight on the inordinate influence the press wields over politics on the other side of “the pond.” Alternately feared and obsequiously courted by politicians, the British press is widely credited with making or breaking the fortunes of the political parties.
Several observers have attributed this outsized power to the country’s draconian campaign finance laws, which not only limit the amounts that political parties, candidates and even independent groups can spend on political speech, but also outright prohibit advertising on broadcast media. As in the United States, the media’s own news and editorial coverage of politics is exempt from such limits, although the British broadcast media are subject to a rough equivalent of our defunct “Fairness Doctrine,” which purports to ensure that television and radio networks offer equal time to opposing viewpoints. Like American laws, which subject broadcast campaign ads to more rigorous regulation, the British laws view newspapers as being somehow less subversive and thus exempt from the impartiality obligations.
As our Supreme Court justices have noted for many years, and most recently in the Citizens United opinion, the so-called “media exemption” provides “that a news organization has a right to speak when others do not.” Moreover, as the British system demonstrates, the inherent tendency of any regulation is to create categories upon subcategories of favored speakers, even within the media itself.
Beyond fundamental unfairness, the political process is distorted by laws burdening the public’s and candidates’ right to political speech while giving a free pass to the press. They necessarily elevate the power of the media, which has no inherent entitlement to such legal preference. After all, to paraphrase James Madison in the Federalist Papers, if the media were angels, no fairness doctrine would be necessary. And yet, after regulating the public’s political speech out of existence, the British found they had to regulate the media’s political speech as well.
Where does this all end? Jacob Rowbottom, a law lecturer at Cambridge University, writes in the New Republic that some have urged newspapers to be subject to the same impartiality requirements as other media. Others have suggested diluting the concentration of media ownership. Naturally, for those of a regulatory mindset, the kneejerk reaction to any problem is more regulation, even when it was regulation that created the underlying problem in the first instance. Such a foolish notion would be laughable if the consequences weren’t so dangerous. The inevitable end-game of this regulatory mentality is precisely what Orwell warned us against: a society in which government censors at the “Ministry of Truth” protect the naive and impressionable public from the subversiveness of the free marketplace of ideas. In the days before the “Newspeak Dictionary,” we called this “totalitarianism.” Now we call it “campaign finance reform.”
Here in the States, the Supreme Court has taken the more sensible approach to political fairness, not by subjecting the media to greater burdens, but by recognizing the same freedoms that apply to the press also apply to the general public. Rather than feel chastened, the regulatory crowd has been emboldened by the Citizens United decision, first by attempting to hinder corporate political spending with prohibitive disclaimer and reporting burdens, and now by proposed legislation requiring unwieldy shareholder ratification procedures. All the while, these proposals would exempt unions. Sound familiar? As the denizens of Orwell’s “Animal Farm” held, all are equal, but some are more equal than others.
To be fair to the regulatory wing, there is a colorable concern that aggregations of corporate wealth could prove to be so pervasive that, like the British media, they come to dominate the political system. But unlike the media industry’s economics, which naturally tend to produce oligopolies, the American corporate sector is hardly monolithic, and there is ample evidence of “progressive” corporations offsetting their conservative counterparts in the political arena. Such an unregulated free-for-all admittedly is imperfect, but to quote Churchill, it is “the worst form of government except all the others that have been tried.” For evidence, just look at the United Kingdom. Sir Winston, I daresay, would be appalled.
Eric Wang is a campaign finance lawyer.
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