Former FEC chairman ponders free-speech implications of latest Trump probe wrinkle

Bradley Smith writes in the New York Daily News about the implications of federal prosecutors granting immunity to the National Enquirer in an investigation linked to President Trump.

The Enquirer’s involvement adds an interesting wrinkle to the controversy, which revolves in large part around campaign finance laws. Prosecutors argue that the publication’s hush money payments were illegal campaign expenditures because they were paid in order to help Trump’s campaign. …

… The interesting wrinkle is that campaign finance laws typically don’t apply to the media. A statutory “press exemption” shields media outlets from these laws, including disclosure and reporting requirements. …

… If the Enquirer violated campaign finance laws by spiking the stories it purchased, would it also be illegal to spike stories it spent money to research? Both things happen in the media world, but the latter is likely far more common. If a news outlet devotes substantial resources to digging on a candidate, then chooses not to publish what it found because it doesn’t like the political implications, would that be illegal?

In fact, in this day and age, when advocacy organizations, think tanks and corporations have publications, and websites or even Twitter feeds function as the equivalent of printing presses, it is difficult to know who even qualifies for the “press” exemption. We are likely to see more and more claims of that exemption by political partisans operating outside of traditional media.

There has been much concern that Trump’s criticism of the press threatens the First Amendment. But a greater threat would come from inviting the government into editorial rooms, to second-guess decisions to run or not to run stories.

Given the many ways press outlets can influence elections, and the reality of today’s decentralized, partisan media, the press exemption from campaign finance laws is coming under increased skepticism.

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...