In Defense of Corruption: CNN Debates, the Press Clause, and Campaign Finance Regulation
This election cycle, CNN’s Republican presidential debates have twice violated campaign finance law, specifically by failing to issue invitations based on “pre-established objective criteria.”
These violations went unpunished, not because of the ineptitude of the regulators, but because of the absurdity of the regulation violated, which presumes that television debates violate campaign finance law, and only permits such debates as an exception.
More important than the absurdity of one regulation, though, is the broader issue CNN’s violations highlight, namely, an unresolved tension that arises whenever campaign finance’s free speech jurisprudence regulates press activity. The tension follows inexorably from the law’s current free speech framework: the Speech Clause permits any campaign speech besides corruption, be it natural (endorsements) or monetary (contributions). Press activity has a monetary value that amounts to a contribution. Corporate contributions are corrupting. Therefore, press activity amounts to corruption that may be prohibited. Thus, all press activities, from hosting debates to publishing newspapers, are vulnerable to prohibition, and necessarily so.
In part, the tension stems from the strength of a speech claim—because the Court cannot conceive of a press claim adding anything to a speech claim, it protects campaign-related activities solely under a speech framework. However, as this Essay argues, the Press Clause offers protection beyond that of the Speech Clause. Namely, it protects press activity even when the press engages in “corruption or the appearance of corruption.”
In doing so, this Essay provides a reading of the Press Clause consistent with the Constitution’s design and capable of resolving an absurdity that mars much of campaign finance law.