Free air time for candidates carries a high price

Friday, April 7, 2000

“Money … is not speech,” Justice Stephens wrote in his concurrence to the majority opinion in Nixon v. Shrink, the recent Supreme Court decision upholding a Missouri law’s limits on political campaign contributions. That may seem to be a simple truth, but in the context of political speech it is out of touch with logic, reality and the First Amendment.

That is especially so when it comes to requiring television broadcasters to provide free air time for political candidates as a way of improving democracy and the political process.

If money isn’t speech, then why do businesses, organizations and individuals squander all those billions each year in advertising and promotion of their issues, goods and services?

If money isn’t speech, why do individuals, organizations and corporations shower all those lobbyists with billions each year to make their voices heard in legislative chambers across the land?

If money isn’t speech, why has the Supreme Court said in two different rulings that it would be a violation of candidates’ free-speech rights to limit their campaign spending?

The fact is that if you’ve got money, you’ve got speech, and if you only have a little money you should have a right to put it together with others of like mind to amplify your voices.

Money is speech especially in the context of free air time for political candidates.

This issue takes on urgency because it is part of a package of proposals the Federal Communications Commission has put forth for consideration. Other elements of that package affecting First Amendment concerns include new program-content ratings, minimum hour requirements for news, educational, classroom and children’s programs, and the extension of public-interest obligations to the Internet.

The FCC and groups supporting these proposals say that broadcasters and new media must suffer these limitations on their free-speech rights because they have public-interest obligations that other media do not have. Even so, these latest proposals raise to a new level the shaky premise advanced 70 years ago that the power to license broadcast frequencies translates easily into a license to regulate speech.

In putting forth these proposals, proponents hope to take advantage of the convergence of two unrelated matters: the transition of broadcast television from analog to digital technology and the mounting pressure for campaign-finance reform.

The cry for campaign reform itself seems to be based more on assertions than demonstrations that democracy generally and the electoral process specifically are in deep trouble. But accepting the argument that reform is needed, it seems passing strange that the remedies sought would be more of the same as those proposed in 1974, which apparently have led to the current mess.

As for the transition from analog to digital — which will allow broadcasters to engage in multicasting and datacasting because of the splitting of frequencies — we should keep in mind that while technology has changed, the Constitution has not.

The proposal for requiring free air time for political candidates seems to have been kept deliberately vague. But any meaningful discussion would have to involve answers to some basic questions.

  • Does the requirement cover off-year, primary and general elections? Issues and initiatives as well as candidates? Major and third-party candidates only, or fringe and write-in candidates, too?
  • Which broadcasters are covered? Networks and affiliates only, or independent stations, too? Must each station air the same messages as competing stations? Do they all have to air at the same time to block viewer flight?
  • What does the free time consist of? Live speeches, soundbites, commercials, a position paper from the candidate’s Web site? Can candidates provide surrogate speakers? Can they use visual aids or produced pieces?

As complicated as it may be, arriving at specific requirements for providing air time might be the easiest part of the problem for proponents. There are a number of practical problems with a free-time requirement that they will need to address satisfactorily:

  • It would shift costs of political campaigning from candidates and their contributors to ordinary consumers, who would have to pay higher prices for goods and services to make up for higher advertising costs imposed by broadcasters to make up for the lost time.
  • It would deprive broadcasters of resources for what the public has said is more useful programming for political campaigns: news, debates, candidate interviews.
  • It would exacerbate rather than ameliorate financial disparities among candidates because well-funded candidates still could buy ads in addition to using the free time.
  • It would duplicate the problem that the Fairness Doctrine (before it was discarded) and the political attack and editorial rules have produced; i.e., those requirements have reduced rather than enhanced public-interest goals by discouraging broadcasters from dealing with political issues and candidates.
  • It would further exaggerate the roles of political parties, independent organizations, and the news media in the political process.

Beyond all that, the free-time requirement would flout both the letter and the spirit of the First Amendment.

The idea that broadcasting can be regulated in ways that other media cannot has always been on shaky constitutional footing. The rationale for regulating broadcast media was twofold:

  1. They were using airwaves that belong to the public.
  2. Those airwaves were scarce in supply.

The first has pretty well stuck, despite the fact that no one would dare suggest that newspapers, for example, should be required to obtain a license to operate because they use the public highways, post office, railways or airways.

As for spectrum scarcity, in recent years members of Congress, the courts and some FCC commissioners themselves have questioned whether that argument is good enough in today’s multifaceted media environment to justify First Amendment limitations on broadcasters that now exist, let alone new and expanded ones.

Constitutional concerns also are raised because requiring broadcasters to provide free time to candidates is a form of compelled or coerced speech. It would discriminate among speakers. It would impose upon the First Amendment rights of the viewers. It would impose on the free-speech rights of the candidates themselves.

In essence, it would make the government censor, editor and programmer.

The people have said in surveys that they thought radio and television broadcasters devoted enough or too much time to political discourse during the New Hampshire primaries and the Super Tuesday primaries; only 7% thought there was too little. While political coverage on the networks has gone down dramatically, there is plenty on CNN, MSNBC, PBS and C-SPAN, not to mention newspapers, magazines and radio.

In sum, there has been no real demonstration by the proponents of free time that the public needs it, wants it, watches it, or uses it in a meaningful way.

This is a proposal that doesn’t have public mandate, it is rife with practical problems, it would be nearly impossible to implement, monitor or enforce, it unfairly discriminates among media, and it violates the First Amendment rights of broadcasters, political candidates and the public.

It is simply a bad answer to the wrong question.

And to Justice Stevens’ simple assertion that money isn’t speech, the question is: Why would free air time come at such a high price?

Paul McMasters may be contacted at