When Congress set about trying to clean up campaign politics 10 years ago, it passed a law to control political contributions and created the Federal Election Commission (FEC) as a watchdog.
Now the biggest magazine in the country is charging that the watchdog is biting into freedom of the press.
In what is shaping up to be a major court challenge, Reader's Digest Association Inc. is suing to halt an FEC investigation into a charge that the magazine illegally worked to defeat Sen. Edward M. Kennedy's bid for the presidency.
The dispute grows out of a highly publicized article about the 1969 automobile accident in which Senator Kennedy drove off a bridge on the island of Martha's Vineyard and his passenger, Mary Jo Kopechne, was killed.
Reader's Digest hired experts on tidal flows and on speed to research the accident. One of the experts produced a videotaped animation showing the path of the car.
Titled "Chappaquiddick: The Unanswered Questions," the article hit the newsstands one year ago, just as Kennedy was campaigning for president.
To promote the article, Reader's Digest sent the videotaped animation plus news releases to TV networks. Both the CBS Evening News and NBC's Today show mentioned the story, and NBC broadcast part of the videotape.
Last August, a complaint arrived at the FEC. Larryann C. Willis of Vale, Ore., charged that Reader's Digest had broken federal laws by spending money to oppose Kennedy's election.
Under the election reform law, corporations are forbidden to spend money either to elect or defeat candidates. The news media are exempt, but the Oregon resident claimed that Reader's Digest stepped into an advocacy role when it ordered the expert studies and when it used the videotape to promote its story.
The FEC dismissed the complaint regarding hiring experts, but it voted that there is "reasonable cause to believe" that Reader's Digest broke the law in its use of the videotape.
In short, the FEC ruled that the news article itself was protected from campaign laws, but promoting an article may not be exempt. The FEC directed Reader's Digest to answer 15 questions about the article and its promotion.
So far, the magazine has refused to answer the questions, citing its First Amendment freedom of the press rights. It is asking a federal district court in New York to rule that the FEC inquiry on the issue is unconstitutional.
Fulton Oursler Jr., managing editor of Reader's Digest, says in a deposition that any further investigation of his magazine will violate its right to "speak freely and comment on newsworthy topics."
"The notion that the federal government may investigate the policies, practices, and expenditures of a periodical in connection with the publication and dissemination of an article about an elected official is an abhorrent violation of the First Amendment," argue the magazine's lawyers in their brief.
The FEC counters that the magazine is suing too soon -- since the commission has not even made a final ruling. "We're just asking Reader's Digest to answer some questions," says an FEC spokeswoman.
New York Federal District Judge Pierre N. Leval now is considering the issue and could make a decision this week, but the case can be expected to go into higher courts before it is finally resolved.
Reader's Digest is not the first publication to run afoul of the FEC. A little-known conservative newsletter with the tongue- and-cheek title "The Pink Sheet on the Left" has run into similar trouble. In that case, the Kennedy campaign committee brought the newsletter to task for sending out a promotional letter which detailed the publication's anti-Kennedy stand in order to attract new subscribers.
So far the two sides are at a standoff. Publisher Thomas L. Phillips has refused to answer FEC questions, and the FEC has not taken further action.
Clem Work, attorney for the Reporters Committee for Freedom of Information, has backed the "Pink Sheet" in the case. He says that his g roup is "concerned" about such FEC investigations.