Election Integrity’s Most Insidious Foe — the FEC

One of the most insidious election integrity issues is the effort to get our government to regulate spending by our newspapers to publicize their editorials and other opinions. The latest is a complaint filed by President Trump’s campaign against the Washington Post for, as our Novi Zhukovsky reports, “illegally” spending marketing dollars on election eve to promote its anti-Trump content. On this matter, we don’t wish Trump luck.We first encountered this issue in 1981, when the Federal Election Commission opened an investigation of spending by Reader’s Digest to promote the magazine’s investigation of Senator Ted Kennedy’s accident at Chappaquiddick, part of Martha’s Vineyard. An ex-aide to his brother Robert, Mary Jo Kopechne, drowned when, one July evening, a car in which she was riding and which Ted Kennedy was driving went off a bridge and sank in Poucha Pond.That was in 1969. Exactly what happened was still outstanding in the late 1970s, when Ted Kennedy was preparing a run for the presidency. Questions about his actions in the Chappaquiddick incident continued to burden his ambitions — and couldn’t be more newsworthy. That’s the context in which the FEC opened its investigation of whether Reader’s Digest was breaking the law by spending money to promote the magazine’s findings.Talk about no good deed going unpunished. The FEC, created to help keep elections honest, curdled into an enemy of the press. It was sued by the Reader’s Digest. The Wall Street Journal, where we were then pulling an oar in the editorial galley, was infuriated by the Commission’s move and, in early 1981, issued at least three editorials in support of the Digest. It understood that promoting editorials was inherently part of what it meant to publish them.The Digest hoped to bar the investigation, arguing that further meddling would have a “chilling effect” on the free press rights vouchsafed by the First Amendment. The FEC was allowed to continue anyway. By the end of its investigation, however, the Commision did not proffer any evidence to suggest that the Digest had acted outside of its function as a publisher and thus had no probable cause to believe it had violated the law. Which brings us back to Trump’s FEC complaint against the Washington Post. The complaint cites an article from a news site, Semafor, which reports that the Post, just a little over a week before the election, “aggressively ramped up its paid advertising campaign” to boost articles that were critical of Trump. Conversely, Semafor concludes that the articles that the paper paid to highlight Ms. Harris were either neutral or positive in tone. Although advertising promotion is a common marketing practice, the Trump-Vance campaign seeks to characterize the elevation of anti-Trump articles as, effectively, paid advertising in favor of Ms. Harris and thus an illegal campaign contribution. Under the Federal Election Campaign Act, corporations are barred from making “a contribution or expenditure in connection with any election to any political office.” Trump’s complaint pokes the Post just as it is grappling with a wave of subscriber defections over its decision to end its custom of endorsing presidential candidates. The paper’s billionaire owner, Jeff Bezos, interdicted the editorial board’s draft endorsement of Ms. Harris, in an effort to improve the paper’s trustworthiness. The ensuing avalanche of publicity led to more than 250,000 subscriber cancellations. The Post dismissed Trump’s allegations as “improper” and “without merit,” adding that advertising promotion is “routine” practice across publishers. A Columbia Law School professor, Richard Briffault, who specializes in campaign finance regulation, told CNBC that the case was “completely preposterous” and an example of “litigation by press release and not more serious than that.”In the long-ago case involving Reader’s Digest, the Journal reckoned that freedom of the press wasn’t the central issue. “The ultimate issue,” the editorial board averred, “is whether American elections, and the discourse on all levels that is so basic to them,” can “be free from the meddling of political commissars in Washington.” What is President Trump doing wading into such waters?

Election Integrity’s Most Insidious Foe — the FEC

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