Was the White House planning to use McCain-Feingold to silence Fox News?

The White House war on Fox News heated up in early October. It culminated, after almost 3 weeks of harassment, in an unsuccessful effort to exclude Fox, a member of the White House press pool, from an interview with pay czar Kenneth Feinberg. In a successful pushback, members of the press pool unanimously refused to conduct any interview, unless Fox was included. The White House backed down.

The language used to marginalize Fox was primarily “Fox is not a legitimate news organization” used by Gibbs on many occasions, and then Communications Director Anita Dunn’s “[T]he way we view it is that it really is more a wing of the Republican Party” followed by “But let's not pretend they're a news network….” It was Dunn’s comments on CNN’s Reliable Sources that started the drumbeat that ostensibly ended in late October. But it hasn’t. Last Monday (Jan. 18), just two days prior to the to the Citizens United decision that wisely gutted the censorship provisions of McCain-Feingold, current Communications Director Dan Pfeiffer (and Anita Dunn’s husband) picked up the drumbeat again. We don't feel an obligation to treat [Fox News] like we would treat a CNN or an ABC or an NBC or a traditional news organization. But there are times when it would make sense to communicate with them and appear on the network.

 The cause for worry is the precise language used by the White House to demean Fox. It has been: “not a legitimate/traditional news organization/network,” and “a wing of the Republican Party.” McCain-Feingold bans electioneering communications by corporations and unions that mention federal candidates by name 30 days prior to primaries and 60 days prior to the general election. It carves out an exemption for the “institutional press” but disallows the exemption when a broadcast station is “owned or controlled by any political party, political committee, or candidate.”

Does Dunn’s contention that Fox is “a wing of the Republican Party” constitute “control” under McCain-Feingold? Would Gibbs’ “not a legitimate news organization” disqualify Fox News from the “institutional press” exemption? Would the FEC go along with these assertions and apply a gag order on Fox deep into the election cycle, making a stay impossible before Election Day? Fortunately the Supreme Court resolved the problem, so we will never know.

But the explosive response by Senator Schumer D-NY to the decision may give a clue to Democrat intentions. We must recognize the Obama administration has an “enemies list.” And unlike the Nixon administration, it makes no secret of who is on it. Fox News and Rush Limbaugh are in their crosshairs.

The First Amendment has protected free and vibrant political speech for over 200 years, and will continue to do so if we are vigilant.