The urge to regulate political speech did not end with the passage of the Bipartisan Campaign Reform Act of 2002. Sen. John McCain (R‐Ariz.) and several of his congressional allies have taken the next step in campaign “reform” and introduced S. 1497, the Our Democracy, Our Airwaves Act of 2003, in the Senate. The bill codifies the efforts of many politicians and so‐called “public interest” groups to force broadcasters to provide “free” airtime to political candidates and parties. Welcome to the age of subsidized soapboxes for politicians and the next major step toward full‐blown taxpayer financing of elections.
The bill would impose two major requirements on broadcasters. It would require broadcasters to run 12 hours of “candidate‐centered and issue‐centered programming” in the six weeks prior to primary and general elections. Broadcasters would have no choice about the content of those 12 hours (half of which would have to run during prime time). The bill would also create a voucher system for the purchase of commercial broadcast airtime for political advertisements, financed by an annual spectrum use fee on all broadcast license holders (equal to .5 to 1 percent of gross revenues). In other words, broadcast stations would pay a tax to the federal government that would in turn finance a pool of voucher funds that politicians could then use to run ads on those same stations. And we’re not talking small sums here. In 2004, the bill foresees giving candidates for Congress and the presidency $750 million in airtime.
Two new Cato Institute studies show that McCain’s free airtime proposal is based on obsolete assumptions about the media and politics and raises a number of constitutional concerns as well. In the first study, Why Subsidize the Soapbox? The McCain Free Airtime Proposal and the Future of Broadcasting, we challenge one of the most popular rationales for the free airtime measure: the notion that ad rates have driven up the cost of political campaigns, leading to special interest influence over candidates. A new study by Stephen Ansolabehere, James Snyder Jr., and Alan Gerber, proves that rising ad rates have not caused the rise in campaign spending over the past two decades. Ansolabehere and Snyder further document 30 social science studies that show contributions have no influence on roll call votes in Congress.
We also show that the free airtime measure rests on and propagates the long‐standing theory that the wireless broadcast spectrum must be treated as a public resource, owned and regulated by the government at the whim of legislators and bureaucrats. This need not be the case, although it has been for almost 70 years. Spectrum property rights can and are developing that will allow for the private management of the airwaves, including broadcast television and radio spectrum. In fact, the Federal Communications Commission recently released a major report by the Spectrum Policy Task Force that calls for the abandonment of the traditional “command‐and‐control approach” to spectrum management and a movement toward spectrum flexibility and free market trading.
Critics like Norman Ornstein of the American Enterprise Institute and Michael Calabrese of the New America Foundation bemoan the movement toward property rights in spectrum and continue to advocate collective ownership of the airwaves. But the inexorable march of recent regulatory history has been in the direction of expanding the bundle of rights granted to each spectrum licensee. Although spectrum users still need a federal license to operate, the FCC and the courts have become increasingly convinced that spectrum licenses must be treated more like spectrum deeds of ownership. This means that it will become increasing difficult for politicians to impose random rules on spectrum holders, including broadcasters, who traditionally have been forced to tolerate the most extreme legislative and regulatory shenanigans. McCain’s free airtime proposal is an unfortunate step backward in the ongoing progression from mandates to markets.
Importantly, in the second new Cato study entitled The Constitutional Case against “Free” Airtime, Laurence H. Winer, professor of law at Arizona State University College of Law, points out that the McCain proposal also raises serious First Amendment concerns. “Why should broadcasters, or other electronic media, be subject to content regulation any more than newspapers?” asks Winer. Indeed, if Senator McCain sought to control the editorial discretion of newspapers or forced them to provide free ad space to candidates, everyone would immediately see the patent unconstitutionality of his proposal. Yet courts have said government regulation of broadcasting is different, largely because of its scarcity. But the scarcity rationale looks silly at a time when Americans can receive hundreds of television channels. Almost everything in nature is scarce, but that does not justify collective public ownership of all natural resources. Indeed, that is exactly why clearly defined property rights are essential for the efficient allocation of scarce resources.
Winer also points to potential Fifth Amendment takings concerns with the McCain measure. “The substantial bundle of rights modern broadcasters now enjoy in their licenses easily comprises ‘property’ for purposes of Fifth Amendment analysis of regulatory takings.” By transferring the burden of supporting political campaigns from the backers and supporters of candidates to commercial broadcasters, “free airtime proposals thus violate at least the spirit, if not also the letter, of the Fifth Amendment.”
Finally, what is perhaps most offensive about the free airtime proposal is the way in which its proponents boldly proclaim that it is “in the public interest” to subsidize political campaigns in this manner. Says who? As economic history has made clear, “public interest” regulation rarely has much to do with what the viewing public really desires‐rather, the public interest theory has been used as a universal excuse for politicians and industry interests to use regulation to achieve a variety of ends. While the public has very little say in what determines the politically defined public interest standard, they have made it clear what they demand in the actual video programming marketplace. Broadcast commercial television in America does reflect what the public really wants to see and hear. What politicians are perhaps afraid to ask is: Does the public really want to watch more campaign commercials and politically oriented programming and debates, or would they rather tune into American Idol or a rerun of The West Wing? “The notion that Americans are starving for more exposure to politics is cockeyed,” argues Boston Globe columnist Jeff Jacoby. “Americans have never been less interested in campaigns and elections.” Indeed, recent public opinion polls say broadcasters provide “about the right amount” or “too much” campaign coverage during recent election cycles.
Senator McCain wants to control the editorial discretion of broadcasters to solve problems that do not exist. His free airtime proposal has no place in a market‐driven digital media age wherein broadcasters give consumers the programs they want and plenty of news alternatives exist for citizens who desire more political information. Why does Senator McCain have the right to force Americans to watch what he deems good for us?