Published Thursday, October 26, 2006, in Washington Times

Special treatment for Air America

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

When is a campaign donation not a campaign donation? Apparently if you spend the money to run a radio program instead of paying for campaign ads that run on that same program. Just look at Air America. With $41 million in losses since 2004, and $9.8 million owed just to Robert Glaser, RealNetworks chairman, Democrats who bankrolled this "company" weren't so much investors as campaign contributors. The losses are seen as simple business ineptitude,but Air America effectively, and perhaps intentionally, cleverly avoided the campaign finance limits which Democrats had worked so hard to pass.

With McCain-Feingold's "hard money" donation limits of $2,000 per candidate and "soft money" limits to party campaign committees of $57,500, there is no way that Mr. Glaser or other wealthy Democratic donors could have legally given such large sums directly to Democrats. But Air America provided a vehicle for their multimillion-dollar political campaigns.

Take Al Franken's show last Friday, the very day the network was declaring bankruptcy. The program devoted two-and-a-half hours to "Meet the Democrats," where five U.S. House and Senate candidates explained why they were the people for the job. Two-and-a-half hours straight of candidates talking is hardly stirring radio, but it is the Democrats' version of religious radio. Hardly meant to make a profit, but there to inspire the troops. After all, when the network started in 2004, Al Franken announced that: "I'm doing this because I want to use my energies to get Bush unelected."

Since Air America started, successful radio entrepreneurs most notably Rush Limbaugh have argued that Air America never had a business model that made sense. But perhaps it had a model that made political sense.

It's hardly a coincidence that Air America debuted in time for the 2004 presidential campaign or that the bankruptcy filing was put off long enough so that creditors actions won't stop broadcasts before the Nov. 7 election. As if the willingness to lose money weren't already obvious, over a year ago the network started asking listeners to donate money to keep the programs on the air.

Air America merely follows a grand tradition of circumvention by the very people who have supported campaign-finance regulation. George Soros donated millions to help pass McCain-Feingold, but was quick to work around it so that his big dollars could keep flowing. During the 2004 presidential campaign,Mr. Soros was prohibited from giving money directly to his preferred candidate, Howard Dean, so he gave $15 million to so that it could raise the money for Mr. Dean.

The big innovation for Air America was using the bankruptcy laws to turn non-Democrats into involuntary campaign donors. Not only are Democratic "investors" out in the cold, but landlords, limo services, law firms, stations that sold Air America air time and state governments are owed money. Apparently, the network still owes the Gloria Wise Boys and Girls Club, a New York City program for poor kids, a whopping $875,000 money that was transferred from the club by its former director. But even while these people are being stiffed, since the bankruptcy Air America's founders brazenly announced they are starting a new left-wing radio network.

More importantly, though, Air America shows what a mess campaign finance regulations are in. As Justice Anthony Scalia noted during the oral arguments on McCain-Feingold's constitutionality: "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." One such means is the press: broadcast stations, magazines and newspapers are exempt from the law.

But the term "news media" is difficult to define. When McCain-Feingold first passed in 2002, the National Rifle Association generated outrage when it talked about buying a TV station, so that like other media, it could mention a candidate's name during the 60 days before the general election. Sen. John Kerry demanded that the Federal Election Commission block any attempt by the NRA to get a media exemption, stating, "We urge you to prevent the NRA from hijacking America's airwaves with the gun lobby's money." There is no record of Mr. Kerry objecting to Air America's expenditures.

Unfortunately, the contradictions may soon be getting a lot worse. Recently two Seattle radio talk-show hosts were found guilty of violating the Washington State's campaign finance regulations. The monetary value of their commentary on an initiative exceeded campaign contribution limits.Their sin was apparently to fight for lower taxes. What's next? A monetary value assigned to positive news stories in newspapers?

News organizations will rightly claim that they cannot do their jobs if campaign-finance regulations are applied to them. Hopefully even the majority on the Supreme Court, which supported McCain-Feingold, will realize that regulating the content of news stories and regulating who is part of the media goes too far.

How to solve this problem? One solution we'll call it the First Amendment solution is to deregulate the system, let the voters hear what people (even those with "big money") have to say, and trust the voters to choose wisely. The alternative is to extend restrictions to the press. If the latter course is chosen, Mr. Soros and his friends risk finally bringing to America the strict government control of the news he witnessed firsthand as a boy growing up under Nazi and communist dictators.

John R. Lott Jr., the dean's visiting professor at SUNY-Binghamton, served as an unpaid expert witness for the plaintiffs in the McCain-Feingold case.Bradley A. Smith, chairman of the Center for Competitive Politics, is a law professor at Capital University Law School and a former chairman of the Federal Election Commission.


Academic papers:

Social Science Research Network

Book Reviews:

For a list of book reviews on The Bias Against Guns, click here.

List of my Op-eds

Posts by topic

Research finding a drop in violent crime rates from Right-to-carry laws

Baghdad murder rate

Arming Pilots

Appalachian law school attack

Sources for Defensive Gun Uses

The Merced Pitchfork Killings

Fraudulent website pretending to be run by me

Ayres and Donohue

Stanford Law Review

General discussion of my 1997 and 2002 surveys as well as related surveys

Mother Jones article (description of book, downloadable data sets, and discussions of previous controversies)

Collection of some of my other op-eds


Cold Comfort, Economist John Lott discusses the benefits of guns--and the hazards of pointing them out.

A debate that I had with George Mason University's Robert Ehrlich on guns

Lyonette Louis-Jacques's page on Firearms Regulation Worldwide

An interview concerning More Guns, Less Crime: Understanding Crime and Gun Control Laws

The End of Myth: An Interview with Dr. John Lott

Alphecca -- weekly review on the media's coverage of guns


A Nation of Riflemen

Clayton Cramer's Blog

My hidden mathematical ability (a math professor with the same name)


My AEI Web Page

Craig Newmark

Eric Rasmusen

William Sjostrom

Dr. T's

Interview with National Review Online

Some data not found at

Updated Media Analysis of Appalachian Law School Attack

Since the first news search was done additional news stories have been added to Nexis:

There are thus now 218 unique stories, and a total of 294 stories counting duplicates (the stories in yellow were duplicates): Excel file for general overview and specific stories. Explicit mentions of defensive gun use increase from 2 to 3 now.

Journal of Legal Studies paper on spoiled ballots during the 2000 Presidential Election

Data set from USA Today, STATA 7.0 data set

"Do" File for some of the basic regressions from the paper

International Crime Victimization Survey data from 2000

John Lott's CV