Topic: Government and Politics

TV Broadcasters Should Have Same Rights As Everyone Else

Remember broadcast television? Amid the avalanche of new streaming services, DVRs, and Rokus, not to mention cable TV, some people may have forgotten—or, if they’re under 25, never known—that there are TV shows in the air that can be captured with an antenna. The Supreme Court certainly hasn’t forgotten, given that it maintains an outdated rule that broadcast TV gets less First Amendment protection than cable, video-on-demand, or almost anything else–a rule dating to the 1969 case of Red Lion Broadcasting Co. v. FCC.

That lower standard of protection comes from the belief that the broadcast-frequency spectrum is scarce, and thus that the Federal Communications Commission is properly charged with licensing the spectrum for the public “interest, convenience, and necessity.” But if newspapers or magazines were similarly licensed, the First Amendment violation would be obvious to all but the most hardened censor.

Hence the case of Minority Television Project v. FCC. Minority Television Project is an independent, noncommercial license-holding TV station in San Francisco. Unlike most noncommercial license holders, Minority TV receives no PBS money. Because it’s an over-the-air broadcaster, however, it must comply with the restrictions placed on the licenses by Congress and the FCC, including prohibitions on paid commercials and political ads. Minority TV challenged these restrictions as violating the First Amendment.

Applying Red Lion’s lower First Amendment standard, the district court, a panel of the U.S. Court of Appeals for the Ninth Circuit, and even the en banc Ninth Circuit (11 judges rather than the usual 3) all ruled against Minority TV. On petition for certiorari to the Supreme Court, Minority TV argues that Red Lion’s rationale for reducing broadcasters’ rights is outdated and should be overruled.

Cato has filed an amicus brief in support of Minority TV, agreeing that it’s time to give broadcast TV full First Amendment protection. Just as we argued in 2011’s FCC v. Fox Television Stations—where the Court chose to evade the question—it’s time to update our law to fit current realities. The way that people consume information and entertainment has changed dramatically since 1969. Rather than three broadcast networks, we have hundreds of channels of various kinds, and increasingly people are forgoing traditional TV altogether. The FCC can still license broadcasters—that system isn’t going away anytime soon regardless of the next mind-boggling innovation—but the conditions it places on those licenses have to satisfy strict First Amendment scrutiny, especially when they pertain to political speech.

The Supreme Court should take this case in order to update its treatment of broadcasters’ speech rights, including a requirement that the government offer a truly compelling justification any time it wants to restrict them. 

Why Did Western Nations Continue to Prosper in the 20th Century even though Fiscal Burdens Increased?

In the pre-World War I era, the fiscal burden of government was very modest in North America and Western Europe. Total government spending consumed only about 10 percent of economic output, most nations were free from the plague of the income tax, and the value-added tax hadn’t even been invented.

Today, by contrast, every major nation has an onerous income tax and the VAT is ubiquitous. Those punitive tax systems exist largely because—on average—the burden of government spending now consumes more than 40 percent of GDP.

historical-size-of-govt

To be blunt, fiscal policy has moved dramatically in the wrong direction over the past 100-plus years. And thanks to demographic change and poorly designed entitlement programs, things are going to get much worse, according to Bank of International Settlements, Organization for Economic Cooperation and Development, and International Monetary Fund projections.

While those numbers, both past and future, are a bit depressing, they also present a challenge to advocates of small government. If taxes and spending are bad for growth, why did the United States (and other nations in the Western world) enjoy considerable prosperity all through the 20th century? I sometimes get asked that question after speeches or panel discussions on fiscal policy. In some cases, the person making the inquiry is genuinely curious. In other cases, it’s a leftist asking a “gotcha” question.

Long-Run GDP

I’ve generally had two responses.

Ideas Have Consequences: The Neoconservatives

The New York Times has produced a useful video about the “super-predator” scare from the 1990s.  At that time, we were already waging a drug war, so we were advised to build more prisons–and so we did.  Then regrets.

You can watch the video here.

As it happens, we are also finding more scrutiny of neoconservative ideas at the movies. A new documentary film directed by Errol Morris looks at former Secretary of Defense, Donald Rumsfeld and the Iraq war.  Here is the film trailer:

For related Cato work, go here, here, and here.

Washington Should Not Risk War over Ukraine

Russia’s brazen annexation of Crimea has generated a flood of proposals to reinvigorate NATO. Doing so would make America less secure.

For most of its history, the United States avoided what George Washington termed “entangling alliances.”  In World War II and the Cold War, the United States aided friendly states to prevent hostile powers from dominating Eurasia. 

The collapse of communism eliminated the prospect of any nation controlling Europe and Asia. But NATO developed new roles to stay in business, expanding into a region highly sensitive to Russia. 

The invasion of Crimea has triggered a cascade of demands for NATO, mostly meaning America, to act. President Barack Obama responded: “Today NATO planes patrol the skies over the Baltics, and we’ve reinforced our presence in Poland, and we’re prepared to do more.”

The Eastern Europeans desired much more. An unnamed former Latvian minister told the Economist: “We would like to see a few American squadrons here, boots on the round, maybe even an aircraft carrier.” A gaggle of American policy advocates agreed.

Minimum Wage Solidarity Misplaced

Senate Democrats are anxious to bring the Minimum Wage Fairness Act (S. 1737) up for a vote to express their solidarity with “progressives.”  That solidarity, however, is misplaced. The bill is not a panacea for the prosperity of low-skilled workers; it is anti-free market and immoral—based on coercion not consent.

The bill would increase the federal minimum wage to $10.10 after two years, index it for inflation, and increase the minimum for tipped workers.  Those changes would substantially increase the cost of hiring low-skilled workers, lead to job losses and unemployment (especially in the longer run as businesses shift to labor-saving methods of production), and slow job growth.

Although there is virtually no chance this bill would pass, Senate Majority Leader Harry Reid (D-Nev) wants it to come to the floor so he and his compatriots can express their support for low-income workers (and for unions and others who support the minimum wage increase) in an election year.  “Democrats are focused on the future,” says Reid, and “we were elected to improve people’s lives.” 

No, There Are NOT Three Job Seekers for Every Job Opening

Unemployment benefits could continue up to 73 weeks until this year, thanks to “emergency” federal grants, but only in states with unemployment rates above 9 percent.  That gave the long-term unemployed a perverse incentive to stay in high-unemployment states rather than move to places with more opportunities.   

Before leaving the White House recently, former Presidential adviser Gene Sperling had been pushing Congress to reenact “emergency” benefits for the long-term unemployed.  That was risky political advice for congressional Democrats, ironically, because it would significantly increase the unemployment rate before the November elections.  That may explain why congressional bills only restore extended benefits through May or June.

Sperling argued in January that, “Most of the people are desperately looking for jobs. You know, our economy still has three people looking for every job (opening).”  PolitiFact declared that statement true.  But it is not true. 

The “Job Openings and Labor Turnover Survey” (JOLTS) from the Bureau of Labor Statistics does not begin to measure “every job (opening).”  JOLTS asks 16,000 businesses how many new jobs they are actively advertising outside the firm.  That is comparable to the Conference Board’s index of help wanted advertising, which found almost 5.2 million jobs advertised online in February.  

With nearly 10.5 million unemployed, and 5.2 million jobs ads, one might conclude that our economy has two people looking for every job (opening)” rather than three.  But that would also be false, because no estimate of advertised jobs can possibly gauge all available jobs.

Consider this: The latest JOLTS survey says “there were 4.0 million job openings in January,” but “there were 4.5 million hires in January.”  If there were only 4.0 million job openings, how were 4.5 million hired?   Because the estimated measure of “job openings” was ridiculously low. It always is.

Another Campaign Restriction Falls Because First Amendment Strongly Protects Political Speech

Despite the 5-4 split among the justices, McCutcheon is an easy case if you apply well-settled law: Restrictions on the total amount an individual may donate to candidates and party committees—as opposed to how much he can donate to any one candidate—violate the First Amendment because they do not prevent quid pro quo corruption or the appearance thereof. That corruption-prevention rationale is the only government interest that the Supreme Court accepts as a valid one for restricting political-campaign activities. As Chief Justice Roberts wrote for the majority (and it is a majority because Justice Thomas concurs in the judgment): “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.”

With Justice Thomas, however, I would go beyond that simple point and overrule Buckley v. Valeo (1976) altogether because “[c]ontributions and expenditures are simply ‘two sides of the same First Amendment coin’” and the Court’s “efforts to distinguish the two have produced mere ‘word games’ rather than any cognizable principle of constitutional law” (quoting Chief Justice Burger’s partial dissent in Buckley). Buckley rewrote the speech-restrictive post-Watergate campaign-finance law into something no Congress would’ve passed, also inventing legal standards such that one type of political speech has greater First Amendment protection than another. Nearly 20 years later, the Supreme Court rewrote another congressional attempt (McCain-Feingold) to “reform” the rules by which people run for office, shying away from striking down Buckley and producing a convoluted mish-mash opinion that serves nobody’s interest. Enough! The drip-drip of campaign-finance rulings over the last decade has shown, existing campaign-finance law is as unworkable as it is unconstitutional.

As Cato argued in its amicus brief, in a truly free society, people should be able to give whatever they want to whomever they choose, including candidates for public office. The Supreme Court today correctly struck down the biennial campaign contribution limits and gave those who contribute money to candidates and parties as much freedom as those who spend independently to promote campaigns and causes. But it should have gone further.

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