June 8, 1998
Free TV Speech for Candidates
By E. Joshua Rosenkranz
We own the airwaves. We, the public. Not GE, not Disney, not Westinghouse, and not Rupert Murdoch. But we lend them our airwaves for free, as trustees, in return for a pledge to serve the public interest. That’s a good place to start when evaluating the broadcast industry’s cri du coeur against proposals to require them to reserve a tiny sliver of air time for political candidates.
Led by lobbying Goliath the National Association of Broadcasters, the industry has blocked the notion at every pass, often wielding specious arguments that free TV proposals are unconstitutional. Broadcasters forced the prime movers of campaign finance reform in the Senate, Senators John McCain and Russell Feingold, to strip their bill of its modest free TV requirement. They flexed their muscles again a few weeks ago when, for the first time, a newly reconstituted F.C.C. seemed poised to do what Congress would not. The broadcasters’ Senate allies forced FCC chair William Kennard to back away from the proposal, at least temporarily, by threatening to pass an appropriations rider prohibiting the F.C.C. from adopting a free TV rule. Congress is moved, at least in part, by millions in broadcast-related campaign contributions—$7.6 million in the last election cycle alone, according to the Center for Public Integrity—an ironic twist, since much of the money is recycled back to the broadcasters to pay for TV ads.
Gauging from the vigor of the broadcasters’ response, you’d think free TV proposals would spell certain doom for the industry. To the contrary, the proposals that are gaining currency are quite modest. Perhaps the most popular would require every broadcaster to put aside only two hours of prime time a year into a “time bank” for political candidates. That’s a razor-thin two-hundredths of one percent of a broadcaster’s air time. Qualified candidates and political parties would then redeem some prescribed allocation of the time, in segments of a minute or more, with vouchers furnished by the government.
Let’s put this proposal in perspective. Broadcasters make a pretty penny from our gift of free spectrum. They rake in over $36 billion in revenues a year. Political advertising accounts for about 1 percent of the revenue of local stations, but in the last election year, it was still a hefty $400 million, more than a threefold increase since 1972, in constant dollars. So when we hear newscasters and pundits railing about the skyrocketing costs of campaigns, let’s not forget whose pockets the money is lining.
The broadcasters breathlessly invoke their public interest obligations whenever conversation turns to steps that would line their pockets even more. Their trustee status was front and center when they insisted that the government waive charges for the precious digital spectrum—or, as former F.C.C. chair Reed Hundt called it, “the beachfront property of the cyber sea”—as part of the Telecommunications Act of 1996. Sure, they said, other bidders, like wireless phone or beeper services should pay—to the tune of $20 billion since 1993 when Congress first authorized the auctioning of non-broadcast spectrum—but not us. We serve the public interest.
So it was that the powerful broadcast lobby convinced Congress to give 1,500 TV stations an estimated $70 billion in digital spectrum owned by the public. Not reduced rate. Free. The broadcast industry “is managing to steal a Fort Knox worth of spectrum,” chided Adam Thierer of the Heritage Foundation. A “rip-off on a scale vaster than dreamed of by yesteryear’s robber barons,” cried William Safire.
Seventy billion dollars ought to buy a lot of public interest. But no. When faced with the legislative proposal to provide free airtime to political candidates, the broadcasters came down with a bout of public interest amnesia. To force them to give up even a minute of television time is unconstitutional, claimed the broadcasters. Why? It’s a “taking without just compensation.” That’s right, we’re stealing from them!
As constitutional arguments go, this one’s a no brainer. The government can’t be accused of “taking” what it already owns. The takings clause of the Fifth Amendment prohibits the government from building a highway through your house without compensating you. But if you’re living rent free on a government estate, you can’t complain when the government reserves a walkway for public use. Especially, when you agree up front as a condition of occupancy to accede to the government’s broad authority to define public uses.
Equally specious is the broadcasters’ claim that a free TV requirement would violate their First Amendment rights by forcing them to “speak”—i.e., to broadcast other people’s political ads—against their will. True, the First Amendment prohibits compelled speech just as it prohibits censorship. That means, for example, the government cannot pre-empt Frasier to air government propaganda. Laws cannot interfere with a broadcaster’s editorial judgments. But a broadcaster’s choice to air one commercial rather than another is not an editorial judgment. It’s a pure business decision. That’s why we call them commercials. And the First Amendment does not protect a broadcaster’s right to extract the largest possible profit from every commercial spot. Otherwise, the Supreme Court would have struck the rules that currently govern political advertisements, such as the “lowest unit rate” rules (a somewhat elusive cap on the price a broadcaster can charge a political candidate) and the “reasonable access rules” (limiting a broadcaster’s ability to turn away political ads).
Put another way, the First Amendment applies differently to the same broadcaster depending upon whether the broadcaster is acting as a speaker (as it is when it determines what shows to air) or as a gatekeeper (as it is when it determines which commercials to run). Broadcasters understand the distinction well. They’re the ones who lobbied for the so-called “must carry” rules that require cable companies—against their will—to carry the television shows broadcast over the air in the same area. And with the broadcasters cheering loudly at the sidelines, the Supreme Court rejected the cable operators’ free speech objections. If the government can say that cable companies must carry the broadcasters’ shows, then certainly it can say that broadcasters must carry political advertisements.
In the end, all this talk about free speech and constitutional entitlement is a thin subterfuge for protecting the bottom line. It won’t be long before the public will see through it, as it is beginning to see through the constitutional fig leaves donned by self-interested politicians as an excuse for inaction in the face of the campaign finance scandals of 1996. The new villains of the next election cycle will be the broadcasters. They could do themselves a great service by seizing the opportunity now to fashion a free TV solution they can live with, for in time they will be stuck with rules that are far more onerous.
ABOUT THE AUTHOR
E. Joshua Rosenkranz is Executive Director of the Brennan Center for Justice at New York University School of Law.