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The Constitutional Case against "Free" Airtime, Cato Policy Analysis No. 481

The Constitutional Case against "Free" Airtime, Cato Policy Analysis No. 481

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Published by Cato Institute
Executive Summary

Sen. John McCain (R-Ariz.) plans to revive his

free airtime bill for the 108th Congress. The proposed

law forces broadcasters to cover political

campaigns and to subsidize advertising for candidates.

Normally such legal restraints on editorial

discretion would run up against First

Amendment protections for the media.



Advocates of "free" airtime argue that the

courts have long recognized that similar regulations

on the media may pass constitutional

scrutiny. Broadcasters do not actually own their

slice of the spectrum but rather lease it from the

federal government. The government has traditionally

imposed "public interest" obligations on

broadcasters in exchange for the original license.

The free airtime requirements are seen as an

additional "public interest" mandate.



The legal justifications offered for free airtime

should not be accepted. Scarcity no longer marks

broadcasting in the United States. Free airtime is

not a price paid for use of the spectrum. The government

does not own the spectrum. It does not

regulate the content of newspapers because they

use sidewalks to deliver their product. The broadcasters

have created almost all the value of the

licenses since 1927. Free airtime is less a payback for

using the spectrum than an open-ended effort by

Congress to extract favors from the broadcasting

industry. Free airtime also places an unconstitutional

condition on receiving a broadcasting

license. The proposal transfers the burden of funding

campaigns from supporters of candidates to

commercial broadcasters, an unconstitutional

transfer of wealth under the Fifth Amendment.
Executive Summary

Sen. John McCain (R-Ariz.) plans to revive his

free airtime bill for the 108th Congress. The proposed

law forces broadcasters to cover political

campaigns and to subsidize advertising for candidates.

Normally such legal restraints on editorial

discretion would run up against First

Amendment protections for the media.



Advocates of "free" airtime argue that the

courts have long recognized that similar regulations

on the media may pass constitutional

scrutiny. Broadcasters do not actually own their

slice of the spectrum but rather lease it from the

federal government. The government has traditionally

imposed "public interest" obligations on

broadcasters in exchange for the original license.

The free airtime requirements are seen as an

additional "public interest" mandate.



The legal justifications offered for free airtime

should not be accepted. Scarcity no longer marks

broadcasting in the United States. Free airtime is

not a price paid for use of the spectrum. The government

does not own the spectrum. It does not

regulate the content of newspapers because they

use sidewalks to deliver their product. The broadcasters

have created almost all the value of the

licenses since 1927. Free airtime is less a payback for

using the spectrum than an open-ended effort by

Congress to extract favors from the broadcasting

industry. Free airtime also places an unconstitutional

condition on receiving a broadcasting

license. The proposal transfers the burden of funding

campaigns from supporters of candidates to

commercial broadcasters, an unconstitutional

transfer of wealth under the Fifth Amendment.

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Published by: Cato Institute on Mar 26, 2009
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Sen. John McCain (R-Ariz.) plans to revive hisfree airtime bill for the 108th Congress. The pro-posed law forces broadcasters to cover politicalcampaigns and to subsidize advertising for can-didates. Normally such legal restraints on edito-rial discretion would run up against FirstAmendment protections for the media.Advocates of “free” airtime argue that thecourts have long recognized that similar regula-tions on the media may pass constitutionalscrutiny. Broadcasters do not actually own theirslice of the spectrum but rather lease it from thefederal government. The government has tradi-tionally imposed “public interest” obligations onbroadcasters in exchange for the original license.The free airtime requirements are seen as anadditional “public interest” mandate.The legal justifications offered for free airtimeshould not be accepted. Scarcity no longer marksbroadcasting in the United States. Free airtime isnot a price paid for use of the spectrum. The gov-ernment does not own the spectrum. It does notregulate the content of newspapers because theyuse sidewalks to deliver their product. The broad-casters have created almost all the value of thelicenses since 1927. Free airtime is less a payback forusing the spectrum than an open-ended effort byCongress to extract favors from the broadcastingindustry. Free airtime also places an unconstitu-tional condition on receiving a broadcastinglicense. The proposal transfers the burden of fund-ing campaigns from supporters of candidates tocommercial broadcasters, an unconstitutionaltransfer of wealth under the Fifth Amendment.
The Constitutional Case against“Free” Airtime
by Laurence H. Winer
_____________________________________________________________________________________________________
 Laurence H. Winer is a visiting professor at the Brooklyn Law School in 2002–03 and professor of law and faculty fellow at the Center for the Study of Law, Science and Technology, Arizona State University College of Law.
Executive Summary
No. 481August 6, 2003
 
Introduction
The other shoe of campaign finance reformis dropping.
1
Sen. John McCain (R-Ariz.) isagain taking the lead by sponsoring legislationrequiring radio and television broadcasters toprovide free airtime to political candidates infurtherance of their campaigns.
2
In fact, suchairtime would not be free; we would pay a highprice in one of our most precious currencies,freedom of the press.Proponents of campaign finance reformhave long sought to mandate some form of freeairtime for candidates.
3
Five years ago PresidentClinton established the President’s AdvisoryCommittee on Public Interest Obligations of Digital Television Broadcasters (popularlyknown as the Gore Commission) to deal in par-ticular with the burgeoning costs of televisionadvertising time for political candidates.
4
Thepresident expected this body to recommend,and the Federal Communi-cations Commis-sion then to implement, a program for govern-ment-mandated free television airtime for can-didates for political office.
5
The GoreCommission, a “Noahs Ark” of representativesof special interests,
6
was not able to agree on anymandate, and some of its members had to set-tle for a statement urging broadcasters to do abetter job of covering political campaigns.
7
Yet the initiative behind the GoreCommission lives on. In June 2002 McCainpublicly thanked political scientist NormanOrnstein, the cochair of the Gore Commission,and journalist Paul Taylor, head of the Alliancefor Better Campaigns, for developing the core of the senator’s current proposal.
8
The followingOctober McCain introduced S. 3124, thePolitical Campaign Broadcast Activity Improve-ments Act, to implement the proposal. He nodoubt will reintroduce such legislation in the108th Congress where he chairs the SenateCommittee on Commerce, Science andTransportation to which S. 3124 was referred.
9
Senator McCain’s bill has three main com-ponents. First, it explicitly regulates programcontent by requiring broadcasters to devote atleast two hours per week in the period just priorto federal elections to “candidate-centered” or“issue-centered” programming, defined toexclude paid political advertising. At least oneof those hours must be in an expanded primetime, and none can be “night owl” broadcastsbetween midnight and 6:00
A
.
M
.
10
Second, theact establishes a complicated voucher program,in the aggregate initial amount of $750 millionfor each two-year election cycle, under whichfederal candidates and national committees of qualifying political parties (on behalf of federal,state, or local candidates) would be givenvouchers to purchase broadcast time for politi-cal ads.
11
Broadcasters would have to acceptthose vouchers as payment; they could thenredeem them at face value. Commercial broad-casters would have to finance the voucher sys-tem through an annually assessed “spectrumuse fee” of between one-half and 1 percent of astation’s gross revenues.
12
Finally, the proposedlegislation would tighten the requirements of the current 47 U.S.C. § 315(b) to widen the cir-cumstances under which broadcasters mustcharge political candidates only the lowest unitrate for advertising time.
13
Overall, McCain’s bill proposes to shiftmuch of the cost of political campaigning,especially on television, from candidates andtheir supporters to broadcasters simplybecause the latter own and control an effec-tive medium of mass communication. Thedetails could vary and are not as important asthe principles at stake. Put simply, requiringbroadcasters to carry campaign-related con-tent and finance content- and speaker-specif-ic airtime cannot survive modern FirstAmendment scrutiny. Such a scheme alsowell may constitute a “taking” requiring justcompensation under the Fifth Amendment.
Practical Issues
Broadcasters are not necessarily doing agood job of covering political campaigns, andtheir shortcomings attract appropriate criti-cism. Paul Taylor and the Alliance for BetterCampaigns contribute positively to public dis-course by cataloguing the deficiencies of 
2
Requiring broad-casters to carrycampaign-relatedcontent andfinance content-and speaker-specific airtimecannot survivemodern FirstAmendmentscrutiny.
 
broadcasters and demanding better perfor-mance.
14
When citizens expose, embarrass,and entreat, we may all applaud their efforts.When interest groups and senators seek to use the heavy hand of government regula-tion of the press, however, they enter consti-tutionally forbidden territory. In the longrun government regulation can hardly out-perform the marketplace and institutionalforces in improving how the press operates.As the Supreme Court once sagely observed,A responsible press is an undoubtedly desir-able goal, but press responsibility is not man-dated by the Constitution and like manyother virtues it cannot be legislated.”
15
The proposals for free airtime raise manypractical questions that relate directly to thegovernments heavy burden to sustain the con-stitutionality of free airtime.
16
First, why focuson broadcast coverage of political campaigns?Proponents say the broadcast media are themajor source of news and information, includ-ing information about political campaigns, formost of the American people.
17
They also arguethat campaign ads on television drive up thecost of campaigns, causing a host of allegedlydeleterious side effects. Technological changes,however, are undermining both arguments.The proposals for free airtime are peaking justas the influence of broadcast television on polit-ical campaigns is rapidly declining because of the advent of new, proliferating electronicmedia and digital devices.
18
But additional questions remain. What isthe great value of television campaign ads thatwe should want to encourage them? Do theyreally inform and educate voters and fosterdeliberative democracy? Do we need more 30-and 60-second political ads that candidatesmight choose to run if such ads were availablefree of charge and that, with increasing fre-quency, may be “zapped” along with other com-mercials by proliferating technologicaldevices?
19
Just what is the candidate- and issue-centered discourse the proposals call for?Assuming, as is unlikely, that those can be ade-quately defined, why is this the favored form of campaign speech? And who will monitor com-pliance with such amorphous requirements,and how? Why not instead have taxpayers sub-sidize the mailing to all registered voters of can-didates’ position papers on the major issues intheir campaigns? Alternatively, we could subsi-dize such position papers carried as paid insertsin major daily newspapers. Such written state-ments would have far greater potential for con-veying meaningful information, especially if supplemented by “dueling” position state-ments continuously released during a cam-paign on opposing candidates’ websites.Indeed, those websites are perhaps the bestsource for educating oneself about, and eveninteracting with, a candidate.
20
If the complaint is that most people willignore such messages in other media, that’smost unfortunate. The ultimate answer mightbe a better educated populace. But people havea right to ignore speech no matter how valuableothers deem it to be.
21
Why force broadcastersto subsidize candidates bombarding listenersand viewers with images and slogans theywould rather avoid, and often do avoid?Finally, why should we give preference tomajor political parties with grants of vouch-ers?
22
If anything, it seems that fringe candi-dates and parties most need and deserveassistance in getting their messages to thevoters, at least from the standpoint of theFirst Amendment interest in diversity of political thought and ideas. Broader subsi-dies, however, might mandate support forsome rather unpopular or objectionableideas.
23
But why is that any different fromrequiring support for the Republican orDemocratic Party? There may be some polit-ical science theory behind the effort tostrengthen the major political parties at thefederal and state levels through vouchers, butbroadcasters should not be made unwillingparticipants in this social science experiment.
Constitutional Issues
The First Amendment
Those practical problems are less impor-tant than the constitutional questions raisedby the “free airtime” proposal. Under the
3
Government reg-ulation can hard-ly outperform themarketplace andinstitutionalforces in improv-ing how the pressoperates.

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