West Wing Finance

Does McCain-Feingold apply to television dramas?

Mr. Kopel is research director of the Independence Institute.

National Review Online, April 10, 2001 1:05 p.m. Also by Kopel on campaign finance: The Campaign-Finance Struggle. The solution to the campaign finance mess is to kill corporate welfare, not to undermine the First Amendment. National Review Online. Mar. 21, 2001.

An 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.