No Such Thing as a Free Ad
By Harold Furchtgott-Roth
Published in the Wall Street Journal
Friday, April 10, 1998
President Clinton has called on the Federal Communications Commission to mandate that broadcasters offer free air time for political candidates. But does the FCC have the legal authority to enact campaign finance reform?
No law governing the FCC gives it the power to command that broadcasters charge politicians nothing for advertising spots. In fact, federal statutes define broadcasters' obligations to political candidates, and they stop far short of guaranteeing free time. Given all this, my fellow commissioners and I might do better to focus on what we are required by law to do rather than searching for extracurricular activities.
To be sure, the FCC is not strictly limited to those areas listed in our governing statutes. Under the Communications Act, the FCC has discretionary authority to regulate broadcasting in the "public interest." But this authority has its limits. The U.S. Supreme Court has ruled that FCC actions not expressly authorized by law must be "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting." The relevant legal issue thus is whether the free air time proposal bears a real connection to the efficient management of broadcast licensing. Surely it isn't enough that broadcasters seem to be a convenient means to address a general problem of public disaffection with politics.
The New York Times recently editorialized in favor of Mr. Clinton's proposal, arguing that at the heart of the issue "is an argument about how to make campaigns cheaper and cleaner." This is precisely the problem. For if that is the central purpose, the commission has no more jurisdiction over the proposal than any other federal agency. The FCC was established to manage the electromagnetic spectrum, not political campaigns.
What's more, the FCC has no expertise in this area. How would we decide which candidates were entitled to air time -- federal or state candidates, or both? Only major party candidates, or independents and write-ins too? How much "free" time is enough? Having the FCC answer such questions makes as much sense as charging the Federal Aviation Administration with regulating agriculture because airplanes transport fruit and vegetables.
One final problem with Mr. Clinton's measure: It may be unconstitutional. Compelling broadcasters to communicate political messages may violate the First Amendment. And politicians' commercials wouldn't really be free; broadcasters would pay for them through lost advertising revenue. This may amount to an uncompensated taking under the Fifth Amendment.
Those who wish to strengthen American democracy should be troubled by the idea of the FCC exercising questionable authority. Limits on administrative agencies preserve governmental accountability for the decisions that affect people's lives. Congress, not unelected bureaucrats, should make public policy. That way, Americans who disagree have a means of recourse -- the chance to cast a vote in protest.