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Today in History (1973) - The Saturday Night Massacre. |
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Today in History (1973) - The Saturday Night Massacre. |
According to this AP article, a bill has been introduced in the Ohio legislature that would "require the disclosure of independent and special interest groups' donations in Supreme Court races." Now, I can't imagine that this is what it means, since there is already reporting requirements for judicial candidates in Ohio.
Since the article mentions that the bill "grew out of an earlier version that would also have forced the disclosure of outside groups in legislative races," I think what AP writer John McCarthy means is independent and special interest groups' expenditures -- not donations. As such this would be a direct result of McConnell, which blurred -- if it did not eliminate altogether -- the constitutional distinction between express advocacy and "issue advocacy."
Looking on the Ohio legislature's Web site, I could not find this new bill, but I believe I found the original bill -- with the same lead sponsor, Sen. Randy Gardner -- here.
Among the bill's provisions are this one, clearly modeled after the BCRA:
(3) "Electioneering communication" means any broadcast, cable, or satellite communication that meets all of the following requirements:
(a) It refers to the name, image, or likeness of a candidate.
(b) It occurs on the day of an election or during the sixty days preceding an election at which the name of the candidate appears on the ballot.
(c) It is not otherwise reported as a contribution or expenditure under Title XXXV of the Revised Code.
(d) It does not appear in a public service announcement, news story, commentary, or editorial distributed through the facilities of any broadcast station, unless those facilities are owned or controlled by any political party, legislative campaign fund, political action committee, political contributing entity, campaign committee, or candidate. As used in this division, "commentary" and "editorial" include any communication delivered through a television, radio, cable, or satellite broadcast that is not a paid advertisement.
(e) It is not made by any club, group, association, or organization to its membership.
Finally, check here for the Ohio Legislative Service Commission's pre-McConnell analysis of the original bill. This is more restrictive of speech interests even than BCRA, and is a likely sign of the unfortunate things to come.
(Thanks to Professor Rick Hasen for the pointer.)
March 29, 2004 07:28 PM | TrackBackOn subsection (d), if the "speech" is commercial, that is, paid for, it seems that distinction can be made. The bar for infringing on the freedom of the press is (rightly) quite high. The presumption would be that the press is not partisan, something that cannot be said for other forms of advocacy not referred to so clearly in the Constitution.
Posted by: eimi at March 30, 2004 12:01 AMFirst, "commercial speech," as a term of art, does not mean speech for which a fee is paid.
Second, if you check through much of my writing -- both here and at the other place -- you would see I am a former journalist and very pro-press freedom. However, to assert that the founders or any realistic interpretation of press freedom is based on some "presumption" that the press is non-partisan is laughable. The understanding until the last century was that press -- almost by definition -- was political (and, in modern parlance, partisan). Is your suggestion that The National Review and The Nation should receive less press freedom than say, The Washington Post or The Washington Times (who many would assert aren't non-partisan, either).
The protection of the press is against abridgement of their freedoms, which is not -- in the Court's history, the same thing as promotion of the press through additional freedoms. Generally applicable laws permissibly can be applied against newspapers.
Doesn't the argument for deference to the expertise of the legislature in determining what properly combats the appearance of corruption lose force when the law aims at the Supreme Court candidates? What do legislators know about the interplay between the judges and special interest groups? Just a consideration.
Posted by: Erik Newton at March 30, 2004 12:05 PMA very good consideration, Erik.
Posted by: Chris Geidner at March 30, 2004 12:11 PM