The urge to regulate political speech did not end with thepassage of the Bipartisan Campaign Reform Act of 2002. Sen.John McCain (R-Ariz.) and several of his congressional allies havetaken the next step in campaign "reform" and introduced S. 1497,the Our Democracy, Our Airwaves Act of 2003, in theSenate. The bill codifies the efforts of many politicians andso-called "public interest" groups to force broadcasters to provide"free" airtime to political candidates and parties. Welcome to theage of subsidized soapboxes for politicians and the next major steptoward full-blown taxpayer financing of elections.
The bill would impose two major requirements on broadcasters. Itwould require broadcasters to run 12 hours of "candidate-centeredand issue-centered programming" in the six weeks prior to primaryand general elections. Broadcasters would have no choice about thecontent of those 12 hours (half of which would have to run duringprime time). The bill would also create a voucher system for thepurchase of commercial broadcast airtime for politicaladvertisements, financed by an annual spectrum use fee on allbroadcast license holders (equal to .5 to 1 percent of grossrevenues). In other words, broadcast stations would pay a tax tothe federal government that would in turn finance a pool of voucherfunds that politicians could then use to run ads on those samestations. And we're not talking small sums here. In 2004, the billforesees giving candidates for Congress and the presidency $750million in airtime.
Two new Cato Institute studies show that McCain's free airtimeproposal is based on obsolete assumptions about the media andpolitics and raises a number of constitutional concerns as well. Inthe first study, Why Subsidizethe Soapbox? The McCain Free Airtime Proposal and the Future ofBroadcasting, we challenge one of the most popular rationalesfor the free airtime measure: the notion that ad rates have drivenup the cost of political campaigns, leading to special interestinfluence over candidates. A new study by Stephen Ansolabehere, James SnyderJr., and Alan Gerber, proves that rising ad rates have not causedthe rise in campaign spending over the past two decades.Ansolabehere and Snyder further document 30 social science studiesthat show contributions have no influence on roll call votes inCongress.
We also show that the free airtime measure rests on andpropagates the long-standing theory that the wireless broadcastspectrum must be treated as a public resource, owned and regulatedby the government at the whim of legislators and bureaucrats. Thisneed not be the case, although it has been for almost 70 years.Spectrum property rights can and are developing that will allow forthe private management of the airwaves, including broadcasttelevision and radio spectrum. In fact, the Federal CommunicationsCommission recently released a major report by the Spectrum PolicyTask Force that calls for the abandonment of the traditional"command-and-control approach" to spectrum management and amovement toward spectrum flexibility and free market trading.
Critics like Norman Ornstein of the American EnterpriseInstitute and Michael Calabrese of the New America Foundationbemoan the movement toward property rights inspectrum and continue to advocate collective ownership of theairwaves. But the inexorable march of recent regulatory history hasbeen in the direction of expanding the bundle of rights granted toeach spectrum licensee. Although spectrum users still need afederal license to operate, the FCC and the courts have becomeincreasingly convinced that spectrum licenses must be treated morelike spectrum deeds of ownership. This means that it will becomeincreasing difficult for politicians to impose random rules onspectrum holders, including broadcasters, who traditionally havebeen forced to tolerate the most extreme legislative and regulatoryshenanigans. McCain's free airtime proposal is an unfortunate stepbackward 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 StateUniversity College of Law, points out that the McCain proposal alsoraises serious First Amendment concerns. "Why should broadcasters,or other electronic media, be subject to content regulation anymore than newspapers?" asks Winer. Indeed, if Senator McCain soughtto control the editorial discretion of newspapers or forced them toprovide free ad space to candidates, everyone would immediately seethe patent unconstitutionality of his proposal. Yet courts havesaid government regulation of broadcasting is different, largelybecause of its scarcity. But the scarcity rationale looks silly ata time when Americans can receive hundreds of television channels.Almost everything in nature is scarce, but that does not justifycollective public ownership of all natural resources. Indeed, thatis exactly why clearly defined property rights are essential forthe efficient allocation of scarce resources.
Winer also points to potential Fifth Amendment takings concernswith the McCain measure. "The substantial bundle of rights modernbroadcasters now enjoy in their licenses easily comprises'property' for purposes of Fifth Amendment analysis of regulatorytakings." By transferring the burden of supporting politicalcampaigns from the backers and supporters of candidates tocommercial broadcasters, "free airtime proposals thus violate atleast the spirit, if not also the letter, of the FifthAmendment."
Finally, what is perhaps most offensive about the free airtimeproposal is the way in which its proponents boldly proclaim that itis "in the public interest" to subsidize political campaigns inthis manner. Says who? As economic history has made clear, "publicinterest" regulation rarely has much to do with what the viewingpublic really desires-rather, the public interest theory has beenused as a universal excuse for politicians and industry intereststo use regulation to achieve a variety of ends. While the publichas very little say in what determines the politically definedpublic interest standard, they have made it clear what they demandin the actual video programming marketplace. Broadcast commercialtelevision in America does reflect what the public reallywants to see and hear. What politicians are perhaps afraid to askis: Does the public really want to watch more campaign commercialsand politically oriented programming and debates, or would theyrather tune into American Idol or a rerun of The WestWing? "The notion that Americans are starving for moreexposure to politics is cockeyed," argues Boston Globe columnist Jeff Jacoby. "Americanshave never been less interested in campaigns and elections."Indeed, recent public opinion polls say broadcasters provide "aboutthe right amount" or "too much" campaign coverage during recentelection cycles.
Senator McCain wants to control the editorial discretion ofbroadcasters to solve problems that do not exist. His free airtimeproposal has no place in a market-driven digital media age whereinbroadcasters give consumers the programs they want and plenty ofnews alternatives exist for citizens who desire more politicalinformation. Why does Senator McCain have the right to forceAmericans to watch what he deems good for us?