Article published Monday, September 17, 2007, at New York Post.


By John R. Lott, Jr. and Bradley A. Smith

LAST week saw an outcry over the unfairness and content of's New York Times ad belittling Gen. David Petraeus as "General Betray Us." But the episode also illustrates a much more fundamental problem with campaign-finance regulations - the advantage that these laws give to the institutional press over ordinary citizens. It's time to admit the unenforceability and hidden favoritism of campaign-finance regulations.

As The Post reported, MoveOn may have received a massive and illegal in-kind contribution from the Times. The group paid some $65,000, but Abbe Serphos, director of public relations for the Times, told The Post that "the open rate for an ad of that size and type is $181,692." Another reporter who called the Times was quoted a rate of $167,000 for a full-page ad run on a Monday (as MoveOn's was).

Meanwhile, an official for the pro-Iraq policy group Freedom's Watch told ABC that his group was charged "significantly more" when it bought a full-page Times ad. Rudy Giuliani's ad on Friday also received the same preferential treatment - but only, it appears, because MoveOn's preferential rate was discovered.

Any way you cut it, MoveOn got a sweet deal from the Times. Indeed, the American Conservative Union has filed a complaint with the Federal Election Commission, charging MoveOn and the Times with violating the campaign-finance laws.

MoveOn clearly thought it was running a political message that might influence the '08 elections - paying for the ad via its Political Action Committee, and even including a disclaimer like those mandated by federal campaign-finance law that the ad was "not authorized by any candidate."

But when it comes to influencing elections, the Federal Election Campaign Act makes it illegal for corporations, such as the Times Co., to charge federal PACs "less than the usual and normal charge for such goods or services." And Federal Election Commission regulations specify that this prohibition includes discounts for "advertising services."

Newspapers have a privileged legal status under our campaign-finance laws: Unlike most other American institutions, they can spend unlimited amounts to influence elections through endorsements and coverage. But that exemption does not cover outright gifts of money or valuable ad space to politicians, parties or PACs such as MoveOn's.

Nevertheless, neither MoveOn nor the Times is likely to face legal repercussions. The Times' rate structure is so complex and flexible that it would be near-impossible to prove that MoveOn got a discount that would not be available - under some future set of unspecified circumstances - to a conservative group such as Freedom's Watch.

As a Times spokesperson told ABC, "The rate that is charged for an ad will depend on a variety of factors including how frequently the advertiser advertises with us, the day of the week, is it color, is it black and white, what section it appears, all of those kinds of things."

So, even if the Times did give MoveOn a $100,000 discount out of a desire to promote the group's anti-war views (which the Times broadly shares) and help MoveOn influence the 2008 election, any Federal Election Commission investigation would fail to prove it. The Times' flexibility in pricing allows it to aruge that the transation was simply a normal business deal that might at some point be available to others, even if it not to Freedom's Watch earlier this month.

In short, there's little to stop the Times, or other newspapers, from discriminating on the basis of political viewpoint when charging for ads.

All of which demonstrates the foolishness of our campaign-finance laws, and the way they increase the power of the institutional press, such as the Times - organizations that, as it happens, are typically cheerleaders for these restrictions.

The laws leave the press free to editorialize and slant the news without limit - while virtually all other Americans face sharp restrictions and regulation on buying ad space to respond. And now we see that that the press can effectively charge political advertisers differing rates, further stacking the deck.

Owning a newspaper or TV or radio station is thus the ultimate way around campaign-finance restrictions. Individuals, unions, corporations, grassroots citizens' groups and even political parties face strict limits on what they can give to campaigns. The law are also prevents them, in many cases, from taking out ads immediately before elections. But newspapers can publish any number of news stories, "news analyses" or opinion pieces that favor a candidate on any day they want.

In short, our many restrictions on what individuals can do to help a campaign don't "level the playing field," but merely increase the impact and power of the media.

No wonder the Times is such a fan of campaign-finance "reform."

*John R. Lott Jr. is a senior research scholar at the University of Maryland. Bradley A. Smith is chairman of the Center for Competitive Politics and the former chairman of the Federal Election Commission.

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