The Complexity of the NY Times

Last week an ad was running in the TN Senate race that raised a lot of eyebrows, including charges by the left and the media that the ad was "racist" and "worse than the Willie Horton ad." Whether these charges are true or not remain, as always, irrelevant. But what is interesting is the condemnation from the NY Times whose own twisted recollection of their role in creating the rules that led to their problem with the ad.

Last week, the NY Times editorialized:

The ad, resonating with the miscegenation taboos of Old South politics, may or may not be the nadir in the low-blow salvos now assailing the nation. But it takes the statuette for political hypocrisy as G.O.P. leaders insist they were hobbled by campaign law from cutting off what is clearly their own handiwork. “We didn’t have anything to do with creating it,” insisted Ken Mehlman, the chairman of the Republican National Committee.

All Mr. Mehlman’s committee did was finance the ad by way of a supposedly “independent” political shop that serves as a shadow party operation specializing in attack ads on behalf of the Republican candidate, Bob Corker. Mr. Corker eventually criticized the ad as tacky and not part of his campaign, asking that it be killed. But Republican assurances that it was finally off the air after days of damage have proved untrue, according to news reports. The 30-second fiction continued to air like some monstrous G.O.P. orphan.

Strategists from both political parties use the “independent” route of the campaign law for launching sleaze and disclaiming provenance. Voters across the nation are hard-pressed to separate wheat from chaff in the whirlwind of political ads. But one of the few keys they have in figuring out who’s responsible for something particularly egregious is the tag line required at each commercial’s close.

Brad Smith, in his usually pointed manner, points out the law behind the Melman denial, noting that it is accurate and a result of the rather stupid coordination and independent spending rules perpetrated upon the American Voter. Calling the NY Times characterization of Melman's response a "loophole," Smith writes:

Reformers many years ago wrote a law limiting the ability of political parties to contribute directly to, or to coordinate their activity with, candidates. Further, the reform organizations have fought successfully in the Supreme Court to preserve that law against Constitutional challenge - Federal Election Commission v. Colorado Republican Federal Campaign Committee ("Colorado II"), 533 U.S. 431 (2001) - and in Congress against efforts to repeal or raise the coordinated spending limits. However, the Supreme Court has also held that parties have a right to spend unlimited sums of "hard money" if they do so independently of their candidates. Colorado Republican Federal Campaign Committee v. Federal Election Commission ("Colorado I"), 518 U.S. 604 (1996). The Court held that this was so because spending funds, once they have been raised in legally limited amounts, does not lead to corruption. Is a constitutional ruling by the Supreme Court a "loophole?" Would the Times call New York Times v. Sullivan, allowing newspapers much more leeway to get away with libel than was previously the case, a "loophole?"

Of course, the NY Times will view Sullivan as a vindication of the freedom of the press while conveniently forgetting that the same First Amendment also protects speech.

For decades, the reform community has added complex layer upon layer of regulation in the interest of "protecting" the voter from getting confused. But until 30 years ago, the American voter was quite capable of deciding for themselves about canddiates and politicians. TV and radio ads ran for decades without regulation concerning coordination or independent exenditures and it would be hard to say that the American republic was worse off under that regime. The result of the efforts of the reform community, as aided by the press, is that when something comes up that they don't like, they can slap at it from the sidelines, decry it, ask high ranking campaign operatives like Melman about it and then get offended when the operative cites the law, calling what ever is said a "loophole."

A complex law invites loophole interpretations and exceptions. That is what election lawyers get paid to find. If we didn't have the complex regulations foisted upon us by the reform community, we would have far fewer loopholes.