Those are all valid points. But they do not constitute the fundamental objection to government support for the Corporation for Public Broadcasting. Let me note here that the term “public broadcasting” is a euphemism that hides an important fact. In actuality, all broadcasting is public: it is produced by members of the public, paid for by members of the public, and consumed by members of the public. What is misleadingly called “public broadcasting” is actually coercive, tax‐funded broadcasting. Even if all the programming supported was unobjectionable, there would remain an incontrovertible case against CPB, namely, that subsidies to broadcasting fall outside the proper scope of government and, in particular, the enumerated powers delegated to the federal government by the U.S. Constitution. In other words, the appropriation of money to the Corporation is flagrantly unconstitutional.
Determining the constitutionality of any given government act is not solely a matter for the Supreme Court. Every member of Congress takes an oath to uphold the Constitution. That oath has a very specific meaning. It obligates every member of Congress to ask before every vote on every bill, “Did the Constitution delegate to the national government the power embodied in this legislation?” If the answer is no, it should be rejected.
This approach to legislation was the one used by all three branches of the federal government for more than one hundred years after the founding of the Republic. Much well‐intended legislation was defeated after it was pointed out that the implied power was nowhere to be found in the Constitution. For example, in 1794 James Madison opposed an appropriation of relief funds because, as he put it, he couldn’t “lay [his] finger on that article of the Federal Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” That approach was not a mere custom to be outgrown. It is logically entailed in the very idea of a constitution. The primary purpose of that document was to define, circumscribe, and limit the powers of the national government. Had that not been the purpose, there would have been no need for the Constitution beyond setting up the branches. But the document did not merely establish the branches. It said what each of those branches could do. And that meant there were things they could not do. The idea of limited government is intrinsic to the Constitution. There is no way to get around that fact.
According to the federal budget, the Congress provides taxpayer money to the Corporation for Public Broadcasting so that it may give grants to “qualified public television and radio stations to be used at their discretion for purposes related primarily to program production and acquisition.” It also “supports the production and acquisition of radio and television programs for national distribution [and] assists in the financing of several system‐wide activities, including national satellite interconnection services.” No one can reasonably oppose the objective sought by the creation and funding of the Corporation: the support of broadcasting. But the desirability of the objective of legislation is not the test imposed on the Congress by the Constitution. The test is much tougher. That test is: Where in Article I is the Congress empowered to transfer money from the one group of citizens to another for the purpose of supporting broadcasting? In the days of the Founding Fathers, there was of course no broadcasting; but there were newspapers, theater, and other forms of entertainment. And yet, the framers did not authorize the national government to subsidize those things because in their view it would have been outside the scope of a properly limited government. That is how you should view the appropriation for the Corporation for Public Broadcasting.
Why did the framers see support for newspapers and entertainment as outside the proper scope? The most obvious reason is that they believed that government existed to protect the people’s rights and to maintain the peace. It should, as Jefferson put it, “restrain men from injuring one another [but] leave them otherwise free to regulate their own pursuits of industry and improvement.” George Washington provided the reason for this decision to limit the power of the state. “Government,” he said, “is not reason, it is not eloquence, it is force; like fire, it is a troublesome servant and a fearful master.”
That fact ought to provide sufficient incentive to contain the power of government. But Jefferson issued an admonition that directly addresses the matter we are discussing today. In the Virginia Statute of Religious Liberty, he wrote, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.”
Jefferson was referring to the establishment of a state church and the taxing of citizens to support it. But his wisdom applies perfectly well to subsidies to broadcasting. Virtually everything that is broadcast on National Public Radio and the Public Broadcasting Service involves someone’s opinion. Not everything can be broadcast. Someone makes a selection among all the things that could be put on the air. Ideology is part of that selection process. Often the selections are controversial. How a news story is played on “All Things Considered” or the “MacNeil‐Lehrer NewsHour” is inherently controversial. How the war on poverty is portrayed in a documentary–to take a timely example–is by nature disputatious. There will never be universal agreement on those matters. Thus, some portion of the American citizenry will, to use Jefferson’s words, be “compel[led] to furnish contributions of money for the propagation of opinions which [it] disbelieves.” That is not fair. Moreover, it violates the First Amendment’s prohibition on abridging freedom of speech. Freedom of speech must include the freedom not to speak, and that freedom logically entails the freedom to abstain from subsidizing the speech of others. The Supreme Court agrees that forcing someone to speak violates the First Amendment. The Congress itself should understand that forcing someone to subsidize someone else’s speech likewise runs afoul of the Constitution.
But I would like to emphasize that one need not resort to the Bill of Rights to invalidate federal aid to broadcasting. One must merely note that there is no such power delegated to the national government. Now I realize that this form of constitutional reasoning is not in fashion just now. The other day I was on a radio program with a member of the Senate. In response to my claim that the Constitution does not authorize such subsidies, he responded that the Congress has what he called “broad discretion” in defining the public good. He is surely right that the courts have granted the Congress that discretion. The problem is that the courts do not have the power to do so under the Constitution and have abdicated their constitutional responsibilities. To grant Congress broad discretion to define and carry out the public good is to allow it to define its own powers. And to do that is to vitiate the Constitution. A constitutional republic in which the government defines its own powers is a contradiction in terms.
Finally, let me say a word about elitism. Federal aid to the Corporation for Public Broadcasting is elitism two times over. First, it is elitist because a politically selected few tell the rest of us that we must spend a portion of our earnings on the television and radio programming of their choosing. They presume to know better than we do how to allocate our entertainment spending. That’s elitism. Second, the subsidies are also elitist because the vast working class is forced to pay for the entertainment of the upper class. Most of the tax‐supported programming has a predominantly upper‐income and better educated audience. Despite the claims that the subsidies are intended to bring the finest in broadcasting to the masses, the fact remains that the middle class pays and the upper crust consumes. Subsidies from working class to rich are not something you’d want to defend openly. Yet that’s what the Corporation for Public Broadcasting accomplishes. Robert Coonrod, the executive vice president of CPB, defends his organization by saying that “about 90 percent of the federal appropriation goes back to the communities, to public radio and TV stations, which are essentially community institutions.” Only 90 percent? Why not leave 100 percent in the communities and let the residents decide how to spend it? Since only 14 percent of CPB revenues come from the federal government, other sources would take up the slack if the federal government ended the appropriation.
For all these reasons, you should cut off the flow of tax money to the Corporation and related entities.
Thank you for this opportunity to come before you today. I’d be happy to answer any questions.