Supreme Irrelevance: Will the high court be undone by political reality?

When is a television station not a television station? How about if it is owned by the National Rifle Association? It may not seem momentous, but the NRA's announcement this week that it might buy a television or radio station has sent shockwaves through campaign-finance-regulation advocates and may ultimately undo last week's Supreme Court decision upholding McCain-Feingold. If the NRA were recognized as a media organization, it would be free to say what it wanted about political candidates, not constrained by any campaign-finance laws. No worries about restrictions on independent campaign expenditures.

General Electric or Time Warner or Viacom own television companies and can easily produce positive news coverage for favored candidates. No one would seriously think of limiting the number of their favorable news stories for a candidate or the ads that they could take out advertising the favorable show. But right now the NRA is not the media and without getting a media exemption, the campaign-finance laws restrict what radio or television ads the NRA can run.

So what distinguishes the NRA from these companies? Surely, not that they are nonprofit. Churches own radio and television stations and publish newspapers.

Possibly the NRA is simply different because it has a well-known political opinion. But doesn't theNew York Times or the Washington Post also have a well-known stance on gun control? Newspapers can run an editorial or news stories supporting candidates any day. Unlike everyone else, the media can mention a candidate's name during the 60 days before the general election. Yet, the NRA is forbidden from placing an ad next to the editorials in those very same newspapers.

It is not even really clear whether the NRA even has to buy a television station to qualify as part of the media. The NRA already is one of the biggest magazine publishers in the country, with about a dozen publications, and provides news on their website.

Just this September when the Supreme Court heard the challenges to the newest campaign-finance rules (the McCain-Feingold law), Justice Anthony Scalia anticipated this problem with campaign finance. During the oral arguments he noted: "if history teaches us anything, [it] is that when you plug one means of expression, the money will go to whatever means of expression are left."

By trying to become part of the media, the NRA has shown ultimate unenforceability of campaign-finance rules.

Not surprisingly, the NRA's actions have generated outrage. Senator John Kerry demanded that the Federal Election Commission block any attempt by the NRA to get a media exemption claiming: "We urge you to prevent the NRA from hijacking America's airwaves with the gun lobby's money."

It has been a brutal couple of months for campaign-finance reform. Democratic presidential candidates have abandoned public financing. Candidates who have long claimed the system necessary for helping challengers now say when their own campaigns are on the line that public financing entrenches incumbents.

Campaign-finance reform will undoubtedly also survive recent scandals. Even the revelation of a Brooklyn city-council candidate who was apparently the first to realize that you could use donations to get matching funds and then hire those same donors as political consultants with the government money. With New York City offering four dollars of matching funds for every dollar raised, few legal investments provide that kind of return.

Others have noted that if Governor Dean, Senator Kerry, and President Bush hadn't opted out of the public-finance system, the program would be out of money now. Taxpayers have simply been unwilling to even redirect some of the taxes that they have to pay anyway into the system. When you have the Federal Election Commission just announcing that Lyndon LaRouche, the perennial conspiracy-theorist candidate and convicted felon, will soon get a check from the government for $840,000, taxpayer distaste for the system is quite understandable.

Yet, despite these various problems, the events surrounding the NRA this week may be something quite different — the effective end of campaign-finance regulations. News organizations will rightly claim that they cannot do their jobs if campaign-finance regulations are applied to them. Surely even the liberal majority on the Supreme Court will realize that regulating the content of news stories or stopping the media from advertising their shows goes too far.

But what really distinguishes General Electric's versus General Motors's ability to influence elections? Is it really simply GE's ownership of television networks? Can Unions buy radio stations? Can anyone possibly rationalize such distinctions?

It looks like Scalia was right. Before the Supreme Court's decision was even issued last week to uphold McCain-Feingold parts of the regulations were already coming apart.

John Lott, a resident scholar at the American Enterprise Institute, is the author of The Bias Against Guns (Regnery 2003). He served as an unpaid statistical expert for the plaintiffs challenging McCain-Feingold.