Media's uneven balance of power

John Lott & Bradley Smith:

LAST week saw an outcry over the unfairness and content of MoveOn.org'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."

...

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.

...

That assumes there are no smoking gun emails between the Times and MoveOn. The Election Commission should move quickly to seize copies of all communications between the group and the times if they are going to take a serious approach to the case. If there are none that will prove the authors point that the regulations give unregulated power to the paper.

The ad has had blow back for the Times and MoveOn that neither expected. It has galvanized GOP opposition to the group and will increase scrutiny for them over the coming months.