McCain's Free Airtime Bill Raises Constitutional Concerns

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The drive to regulate political speech did not end with the passage of the Bipartisan Campaign Reform Act in 2002 (search).

Sen. John McCain, R-Ariz., and several congressional allies recently introduced the Our Democracy, Our Airwaves Act of 2003 (search), which would force broadcasters to provide "free" airtime to presidential and congressional 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 McCain bill would impose two major rules on broadcasters. One would require them to run 12 hours of "candidate-centered and issue-centered programming" in the six weeks prior to primary and general elections--without giving them any control over the 12 hours (half of which must occupy prime time). The second would create a voucher system for the purchase of airtime for political advertisements, financed by an annual spectrum-use fee (search) on all broadcast license holders.

In other words, if McCain's bill passes, stations will pay a tax to the federal government that would in turn finance a pool of voucher funds that politicians could turn around and spend 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 worth of airtime.

McCain's free airtime proposal is based on outdated assumptions about the broadcast media and politics, and raises a number of constitutional concerns.

Supporters of free airtime say galloping TV ad rates have sent the cost of political campaigns soaring and have thus led to even more special interest influence over candidates. But a new study by MIT and Yale scholars shows that ad rates are not to blame for the increase in campaign spending over the last two decades. Further, the researchers uncovered 30 reputable social science studies that show financial contributions have no influence on roll call votes in Congress.

The free airtime measure rests upon the longstanding theory that the wireless broadcast spectrum (search) should be a public resource, owned and regulated by the government at the whim of legislators and regulators. But spectrum property rights (search) can, and are, developing that will allow for the private management of the airwaves, including broadcast television and radio spectra. Besides being heavy handed, the McCain approach may soon be obsolete.

The proposal also raises serious First Amendment (search) concerns. If McCain sought to control the editorial content of newspapers, everyone would immediately see the patent unconstitutionality of his proposal. Yet courts have said government regulation of broadcasting is different, largely because of spectrum scarcity. That rationale looks silly when Americans can receive hundreds of television channels from all manner of sources.

The McCain bill's proponents proclaim it is "in the public interest" to subsidize political campaigns. But as economic history has made clear, "public interest" regulation rarely has much to do with what the viewing public desires. Rather, such regulation has been employed as an excuse for politicians and industry interests alike to use regulation to achieve a variety of private ends.

While the public has very little say in shaping the politically defined public interest standard, consumers have made it clear what they demand in the video programming marketplace. Commercial television in America does reflect what the public really wants to see and hear.

What politicians are perhaps afraid to ask is: Do people really want to watch more campaign spots and politically oriented programming? "The notion that Americans are starving for more exposure to politics is cockeyed," says Boston Globe columnist Jeff Jacoby. "Americans have never been less interested in campaigns and elections." Recent polls say broadcasters have provided "about the right amount" or "too much" campaign coverage during recent election cycles.

McCain and friends want to solve problems that do not exist by overriding the editorial discretion of broadcasters. His free airtime proposal has no place in a market-driven digital media age where broadcasters give consumers the programs they want.

John Samples is director of the Center for Representative Government and Adam Thierer is director of telecommunications studies at the Cato Institute.