F.  Senate Bill Would Require

Free Air Time for Candidates

 

      While their campaign finance reform act was being challenged in the federal courts, Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.) fashioned another bill, S. 3124, the Political Campaign Broadcast Activity Improvements Act.  Introduced on Oct. 16, 2002, the bill sought to amend Section 315(b) of the Communications Act of 1934 but remained dormant in committee until Congress adjourned.  The legislation would require television and radio stations to provide their “lowest unit charge” for the advertisements of federal candidates and their parties 45 days before a primary election and 60 days before a general election.  Stations would be prohibited from preempting these advertisements.

 

Voucher System Proposed

      The bill would create a $750-million voucher system for 2004, indexed to inflation.  Up to $650 million could be tapped by qualifying federal candidates to place advertisements on the air; the remaining $100 million would be used by political parties.  The voucher system would be funded by spectrum usage fees imposed on broadcasters amounting to not more than 1 percent of their gross annual revenues.

      To qualify, a candidate for the House of Representatives would first have to raise $25,000 from individuals.  The candidate could spend no more than $125,000 of his or her own money and would have to face a candidate who had raised at least $25,000. 

      Senate candidates would first have to raise $25,000 from individuals and could spend no more than $500,000 of their own money.  To qualify, they too would have to be opposed by a candidate who had raised at least $25,000.

      Once qualified, candidates would receive three dollars in vouchers for every one dollar they raised from individual contributors.  However, no candidate would receive more than $375,000 in vouchers in any one election cycle.  Vouchers could not be carried over to the next election, but could be transferred to the political party during the election.

      Another provision of the bill would require broadcasters to provide political coverage of an election in the 30 days leading up to the election.  Specifically, the legislation would require broadcast licensees to devote at least two hours a week in the 30-day period prior to an election to candidate-  and issue-centered programming including debates, interviews, and town hall meetings.  

      The legislation would require the Federal Communications Commission to administer the system and collect spectrum fees through the creation of a Political Advertising Voucher Account.

      The legislation was cobbled together from provisions deleted from the campaign finance reform bill that eventually passed.  Sens. McCain and Feingold based their legislation on long-standing regulations imposed on broadcasters by the Communications Act of 1934, subsequent amendments by Congress, and regulations of the FCC.  For example, if a legally qualified candidate for federal office requests advertising time for his or her campaign, stations are bound to provide it at their lowest advertising rate.  If an opponent of any legally qualified candidate for office (federal or not) has been given air time, then the other candidate is entitled to equal and comparable time unless the time was a result of a legitimate news event, exempted interview program, or fully covered debate.

 

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      These rules and regulations leave the nation with two contradictory First Amendment standards.  In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the U.S. Supreme Court ruled that newspapers were not subject to equal space or response space laws.  It made no mention of Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), which subjects broadcasters to such laws.  Thus for the print media compelled speech is unconstitutional, but for the broadcast media compelled speech may be held constitutional.  However, the suspension of the Fairness Doctrine and the retirement of the personal attack and political editorial rules bode well for broadcasters.  The McCain-Feingold legislation certainly compels speech in its sections on campaign news coverage and could provide a test of this issue.

 

Bill Could Implicate Fifth Amendment 

      These reforms may also offend the Fifth Amendment’s restrictions on unjust taking.  In 1978 the Supreme Court handed down a key ruling in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).  Writing for the majority, Justice William Brennan articulated a complex balancing test that included: (1) how permanent the regulation is or has been; (2) whether the regulation advances a state’s interest; (3) whether the regulation prevents a harm; (4) whether the economic impact of the regulation is negative; and (5) whether the regulation is equitable and just.

      The new regulations of Sens. McCain and Feingold would bear the burden of proof in Fifth Amendment cases.  That is to say, broadcasters have a permanent and traditional revenue stream in advertising that allows Americans to enjoy free programming.  The new regulations would interrupt that stream and, therefore, take something from broadcasters without just compensation -- both in terms of a new tax (spectrum fees) and mandated free time.

      Another Supreme Court ruling augurs well for broadcasters on this issue.  In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Court ruled that depriving an owner of the economically beneficial use of his property is an unjust taking.  After David H. Lucas purchased a piece of property, the South Carolina legislature enacted a beachfront control act that effectively destroyed the property’s value by prohibiting construction.  Despite South Carolina’s claim that building was disruptive to a sensitive environmental area, the Supreme Court, with Justice Antonin Scalia writing the majority decision, sided with the property owner.  Thus, even when environmental concerns were apparent, the deprivation of economic reward had to be compensated. 

      The impact of the Lucas case on broadcasters’ Fifth Amendment rights could be significant.  Under the Lucas standard, if the federal government were to enact a law that deprived broadcasters of an historical income, i.e., an economic benefit, that action would constitute an unjust taking.  Compensation would then have to be provided to broadcasters.

      Senate Commerce Committee staff expected the McCain-Feingold bill to be re-introduced in early 2003.

 

--Craig R. Smith