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NRO reader asks an intriguing question: "Would the
West
Wing count as a soft-money political contribution to the Democratic
party under the new campaign-finance legislation?"
The answer is "No, unless the Federal Elections Commission decides
to be ridiculous." With that caveat, the answer would be "probably
not." Tracking down the answer to this took me all the way back
to the campaign-finance "reforms" of Theodore Roosevelt — and
the story of turn-of-the-century reform from the last century has
some interesting modern parallels.
Section 101 of McCain-Feingold forbids parties to solicit or receive
"a contribution, donation, transfer of funds or any other thing
of value" outside the limits of the Act.
One could certainly argue that all the pro-Democrat propaganda from
The West Wing is a "thing of value." The party would have
to spend tens of millions of dollars to buy an equivalent amount
of favorable advertising exposure on NBC.
McCain-Feingold makes it illegal to "solicit or receive." Arguably,
the Democratic party does not "receive" West Wing —
at least not in the same way that the party has received money from
the Chinese military and its American and Indonesian surrogates.
On the other hand, the party members (like everyone else in America)
do "receive" the program on their television receivers.
Whether or not a television program can be "received" for purposes
of McCain-Feingold, the party could still "solicit…any other
thing of value" by contacting the producers of the show, or the
television network, and trying to plant story ideas.
So it would be possible for the FEC to rule that The
West Wing, or many other television programs constitute
illegal contributions to the parties. Such a ruling would, however,
get the FEC into a mess from which it might never recover. The day
after an FEC ruling on The West Wing, Democrats would petition
to have the Fox News Channel declared a Republican contribution;
Republicans would then petition for almost every news program on
ABC, CBS, NBC, and CNN to be declared a Democratic contribution,
and on and on and on.
The FEC, besides having a motive of not wanting to get stuck with
eventually having to review everything on television, would also
probably want to avoid a West Wing ruling because such a ruling
would have huge implications for other campaign laws.
The 1907 Tillman Act (2 U.S. Code section 441b) makes it "unlawful
for any national bank, or any corporation…to make a contribution
or expenditure in connection" with a federal election. The term
"contribution or expenditure" is defined broadly, to include "any
thing of value." The Tillman Act has never been interpreted to apply
to propaganda from the media. So if the FEC were to interpret McCain-Feingold
to apply to television dramas, the FEC would have to justify many
decades of interpreting the Tillman Act another way.
The Tillman Act was sponsored by South Carolina Democratic Senator
"Pitchfork" Ben Tillman, who served from 1895 until his death in
1918. The Encyclopedia Britannica explains that the nickname came
from his "vituperative and often profane attacks on his political
opponents." Tillman was one of the most vicious racists ever to
serve in the U.S. Senate. As governor of South Carolina before entering
the Senate, he disenfranchised the state's black population; he
was ardently pro-lynching. As a senator, Tillman was once censured
because he assaulted another senator on the floor of the Senate.
The Tillman Act was signed into law by John McCain's spiritual ancestor,
Theodore Roosevelt. In the 1904 presidential election, Roosevelt
promised that he would not accept any corporate contributions. During
the campaign, he portrayed himself as a champion of reform, inveighing
the "malefactors of great wealth." Roosevelt defeated Democrat Alton
B. Parker 336 electoral votes to 140, partly because Parker was
considered too close to Wall Street.
After the election, it turned out that Roosevelt had raised vast
sums from corporate officers and directors. J. P. Morgan had given
Roosevelt $150,000 — equivalent to over two million dollars
today. Overall, about three-quarters of Roosevelt's campaign money
came from railroad and oil interests. It was also discovered that
Roosevelt had taken a direct corporate contribution of $50,000 from
New York Life.
The resulting national scandal might have destroyed a lesser politician,
but Roosevelt adapted quickly, proposing extensive campaign-finance
reform. He didn't get everything he wanted, but he did get the honor
of signing the Tillman Act into law — and going down in history
as a reformer who crusaded against big corporations. Perhaps Sen.
John "Keating Five" McCain will win similar accolades. Certainly
if McCain-Feingold becomes law, McCain will join Sen. Tillman in
the first rank of hot-tempered politicians from hot climates who
worked diligently to suppress constitutional rights.
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