FCC chief backs away from free air time for politicians

Thursday, March 26, 1998

The Federal Communications Commission has
delayed considering President Clinton's goal of government-mandated
schedules of free television time for political candidates, heading off a
collision with Congress and with First Amendment advocates in the courts.

The decision was announced yesterday by FCC Chairman William E.
Kennard, who said the commission would freeze its considerations of
proposals to obligate broadcasters and perhaps other media to donate free
time and space to political candidates as part of a larger effort to reform
the way political campaigns are financed.

“A tactical half-step backward” is how yesterday's announcement was
characterized by Paul
Taylor, executive director of The Free TV for Straight Talk Coalition
and a leading advocate of mandated free time for candidates.
But another specialist on the issue, Norman J. Ornstein, said, “I'm very
comfortable with what Bill (Kennard) has done.” Ornstein is resident scholar
at the American Enterprise Institute and co-chair of the federal advisory
committee or “Gore Commission” appointed by President Clinton to find
ways to mandate free television time.

“The practical reality is you are going to have to find a formula, which is
not going to be all that easy,” Ornstein said today
while on vacation. “And you are going to have to do it in a way that makes
Congress somewhat more comfortable.”

Taylor said this morning, “The incumbent members of
Congress don't like it because when they think of free time they think it's
time (that) their opponents have to hit them over the heads.”
It was opposition from the Senate, and specifically from Senator John McCain
(R-Ariz.), that led Kennard to drop the free-time idea. McCain supports free
television time for candidates, but he is on the record as saying only
Congress, not the FCC, has the power to order broadcasters to change their
programs to donate time to politicians. McCain had threatened to reduce the
FCC's budget if Kennard had gone forward on his own to impose the new

McCain has attempted to get Senate approval of a free-time requirement, but
he has not been able to win support.

In his 1997 and 1998 State of the Union
messages, President Clinton called on Congress to enact legislation
mandating free television time for politicians. Last year, he appointed
Ornstein co-chair of a new advisory panel, also known as the Gore
Commission, and assigned the
panel to “help the FCC decide precisely how free broadcast time can be
given to candidates.”

Many First Amendment lawyers believe even Congress lacks the power to
mandate a schedule of free time for politicians. P. Cameron DeVore, one of
the nation's leading experts on broadcasting and the First Amendment, argued
this point in his March 2
testimony before the Gore Commission.

“[S]trictly as a matter of First Amendment analysis it is impossible to
escape the conclusion that a 'free air time' mandate would be subjected to
strict First Amendment scrutiny and struck down by the courts,” said DeVore.
“Indeed, even if lesser scrutiny were to be applied, the government would be
equally unable to meet its heavy burden of proving not only that the goals
of 'free air time' are both real and substantial when weighed in the balance
against First Amendment values, but also that mandated 'free air time' would
'directly and materially' advance those goals.”

DeVore and Taylor were two of the three witnesses who testified March 2 in
the Gore Commission hearings (see trans
cript). The third witness was Tracy A. Westen, president of the Center
for Governmental Studies who called for the government to require each
broadcaster to give politicians “13 minutes a day for the 60 days before the
election.” Westen also argued print media should be part of any
government plan for free access for political candidates.

“I think, in many races, candidates really are better off using print,
direct mail,” Westen said then. “It's more efficient. It's more direct.
And, I think, public financing … subsidies of that … ought to be
included in the entire packet. So I don't think broadcasters should be
singled out at all.”