The topic of this speech is the so-called voluntary standards.
I cannot mention the word "volunteer" without thinking of Tennessee. In East Tennessee, children don't grow up learning to say "Ma" and "Pa" but rather "Go Vols!"
It is a great week to have followed Tennessee football, although perhaps not the women's basketball team. Tennesse football has now been ranked number one for two weeks in a row. In nearly 40 years of following the team, this has never happened before. And probably won't happen for another 40 years.
I have vivid memories of my public elementary school in Knoxville in the 1960s. I don't recall so much the three "Rs" as I recall bible reading, patriotic songs, and, at every turn, the distinction between good and evil, right and wrong.
In my school, there were no grays of moral relativism, only the sharp and brilliant colors of goodness. And one of the highest forms of goodness that an individual could achieve was volunteerism.
Volunteers were a noble class, not by birth or genetics, but by personal rectitude, a noble class accessible to all. Its nobility was only reinforced when that class became the mascot of the local university.
To be a volunteer was to be selfless, to take on additional responsibilties without compensation. Indeed there could be no reward, not even recognition for volunteerism. At least not in this life.
Volunteerism often involved risks, success was never guaranteed. Tennessee got its nickname from the large number of men who "volunteered" to fight in various wars, particularly the Mexican-American War, many never to return.
Volunteerism is aspirational. It is choosing to do good when it would be more convenient not to. It is a moral act not by compulsion but by volition.
There are different types of volunteerism. Perhaps the highest form is completely anonymous. It is not pointed out or suggested by others. It is the proverbial helping the little old lady across the street, a lady who you do not know, and who you will never meet again. An act of kindness that is not witnessed nor recorded. An act of goodness that is never mentioned, that will live in no person's memory but only in eternity.
Anonymity is important for volunteerism. One can enter volunteerism at free will, and one can leave volunteerism at free will. It is a two-way street. No one other than the people who volunteer actually know who the volunteers are. There is no binding contract for volunteerism, no enforcement mechanism beyond a sense of honor, duty, and pride.
Volunteerism is non-compulsory. Compulsory behavior is the opposite of voluntary. Compulsory behavior is not a moral act, a choice of right over wrong. It is not aspirational. It is not selfless. It is not anonymous. Indeed, corcion destroys not only volunteerism but all value and merit in individual action. In a world of compulsory behavior, there is no clear distinction between good and bad behavior.
At a tender age, perhaps ten, I first heard a shattering phrase: "In the military, never volunteer." It hurt my idealistic ears to hear that not everyone thought volunteerism is a good thing.
It seems in the military that volunteers are called for only when miliatry law prohibits coercion. Volunteerism is often based less on chivalry than on limitations of military law.
Volunteerism in the military is not a two-way street. When you volunteer to join the military, you oblige yourself to service for years. You cannot simply walk away tomorrow. Once in the military, volunteering means binding obligation.
But here we are in Washington, not in Tennessee. Not in the military. Here, volunteerism is a federal program costing hundreds of millions of dollars.
If only it were money. It is more the coercion that frightens me. Coercion outside of the direct rule of law. Coercive behavior in Washington has an ironic euphemism: "voluntary standards."
I am sure that many of you, coming from the media industry, are all too familiar with this special breed of laws. Voluntary standards are a favored tool at the Federal Communications Commission.
My thesis about voluntary standards is two-fold. First, voluntary standards are neither a product of free will, nor are they merely exemplary. In other words, they are not voluntary, and they are not standards.
Second, when coupled with broad agency discretion in other matters concerning the regulated parties, voluntary standards provide a dangerous mechanism for the evasion of statutory limits on delegated authority. Evasion of limits on agency authority is a threat to the rule of law and to the principle of limited government, both of which are essential to a free society. Worse, the use of these standards may involve constitutional violations.
Voluntary Standards Are Neither
Often, it helps to step back and think about what people are really saying when they use certain words. When we do so, we sometimes learn that the actual meaning of the terms and the accepted understanding of them -- the "spin" -- are worlds apart.
Let's consider the etymology of the phrase "voluntary standard." According to my dictionary, the adjective "voluntary" means "performed, made, or given of one's own free will" and "acting of oneself, not constrained, impelled, or influenced by another." There is even a legal definition for all of the lawyers here: "acting or done without any present legal obligation to do the thing done or any such obligation that can accrue from the existing state of affairs." (Webster's Third New International Dictionary (1961)).
The original derivation of the noun "standard" is from the German term for "rallying place" or "flag to mark a rallying place." Today, it has come to mean "something that is established by authority, custom, or general consent as a model or example to be followed."
Thus, to meet the actual definition of a voluntary standard, an exemplary or suggested, but not definitive, approach to certain conduct -- that is, a starting point or "rallying place" for behavior -- would have to be undertaken as a matter of free will, without its selection being constrained or influenced by anyone outside the selecting group. Models, not baselines, for behavior would be created, adopted, and adhered to in the absence not only of current legal obligations to do so, but also of future legal obligations that could be imposed -- as the dictionary says, "without . . . any obligation that can accrue."
The First Amendment is premised on a healthy skepticism toward government-supplied descriptions of official action. In the mind of the Framers, the "fourth estate" would always be free, under the Free Press Clause, to supply its own characterization of such action and to challenge the government's, and the citizenry would be at liberty, under the Freedom of Speech Clause, to ventilate their opinions about those matters politic. Such freedoms would, hopefully, serve as a check against the incentive of those in authority to seek to control public criticism of their decisions and thus to perpetuate their power.
Perhaps now more than ever, however, the language of government is the language of euphemism, as Robert Corn-Revere, the Chairman of your First Amendment Advisory Council, has observed in his refreshing essay, "Voluntary" Self-Regulation and The Triumph of Euphemism. Quoting Orwell, Corn-Revere explained that this language is used to "make lies sound truthful and murder respectable, and to give the appearance of solidity to pure wind."
But even taking the government at its own choice of words -- in this case, "voluntary standards"-- the FCC's regulatory efforts fail to qualify as the "sound-good, feel-good" mechanisms they purport to be. They don't even live up to their spin.
Too many examples of supposedly voluntary commitments come to mind: broadcast ratings systems for v-chips; promises, such as free cable access for schools, in "social contracts" for cable operators as consideration for the resolution of rate complaints; the airing of children's programming in exchange for waivers of broadcast ownership rules; the performance of conditions attached to telecommunications merger reviews; financial payments to the government by broadcasters for the dismissal of indecency filings; and compliance with unconstitutional employment "outreach" regulations and reporting requirements. The list is long, and those are only the publicly made commitments.
For speakers of ordinary English, none of those pledges could fairly be called voluntary. As two respected administrative law commentators, Professors Davis and Pierce, have observed, even agency statements that purport to be nonbinding can have coercive effects through more subtle, less formal means. To the extent that an agency possesses significant discretionary power over a class of regulatees or beneficiaries, many are likely to "comply" "voluntarily" with an agency's "nonbinding" statement of its preferred policies.
(Davis & Pierce, I Administrative Law Treatise 232 (3d ed. 1994)).
Each of these so-called voluntary standards, if done in a truly voluntary and resolute manner, might be considered a righteous act. But done by government coercion, or at government suggestion with government scrutiny, these acts cease to be either voluntary or righteous; they remain resolute only in their fear of government coercion.
In each of the aforementioned cases, the regulatees' promise of performance was made in the face of potential adverse action by the FCC in licensing, rate regulation, or enforcement matters. What regulated entities saw when they looked down the barrel at the agency was: possible denial of their license renewal applications; denial of applications to transfer licenses; orders of rate refunds; orders of divestitures; and monetary forfeitures.
Even when the FCC had limited jurisdiction, as with respect to the ratings system, where our role was limited by statute to determining whether that system was "acceptable," broadcasters were faced with the explicit statutory alternative of outright government regulation if they failed to produce an agreement. That in itself is a harm that industry would strive to avoid, and indeed did.
Circling back to the definition of voluntariness, in none of these scenarios did the regulatees "act of theirselves." In each instance, the regulatee's dance partner was the government: like Fred and Ginger, each step they took was cheek to cheek, made either in response to, or in anticipation of, a move by the government. Can it be doubted that the regulatee's every choice of maneuvers was influenced, limited, or affected by the government? And while perhaps executed without any presently existing, direct obligation, they were carried out not only under indirect pressure but surely also with the knowledge that failure to do so could lead to the accrual of express obligations.
As I said in the v-chip proceeding, once the government becomes involved in pressuring parties to take part in any particular program, the program ceases to be "voluntary" in any real sense of the word. Participation on pain of governmental penalty is simply not willing participation.
Nor can the criteria decided upon in the above examples be termed "standards." When backed by the regulatory authorities, linguistically soft "guidelines" quickly harden into minimum rules of behavior.
As Judge Lawrence Silberman, writing for the D.C. Circuit, recently held, even "screening device[s] . . . create a strong incentive to meet the . . . goals" stated therein. "No rational firm--particularly one holding a government-issued license--welcomes a government audit. . . . In order to avoid the inconvenience and expense of being subjected to further review, [regulatees] will treat . . guidelines as 'safe-harbors.'" (Lutheran Church-Missouri Synod v. FCC, slip op. at 17.)
For example, are broadcasters going to offer less than 3 hours of children's programming per week, the current "processing guideline" offering "nonmandatory guidance," as the Commission called it, on compliance with the Children's Television Act of 1990? Only if they wish to engender stricter scrutiny by the Commission.
Evasion of Statutory Limits and the Constitution
So the phrase "voluntary standards" is, even by the government's own terms, a misnomer. But what is substantively wrong with this administrative mechanism? What is it that the misnomer seeks to obscure?
The use of voluntary standards allows administrative agencies better to skirt statutory limits on their authority, an offense to the concept of administrative agencies in possession of only those powers delegated to them by Congress. Their use can also more readily permit agencies to impose requirements violative of the Constitution.
It is no coincidence that the commitments extracted from regulated entities in the guise of voluntary standards tend to be things that the agency lacks statutory authority straightforwardly to require. Voluntary standards, as opposed to duly promulgated rules, can all too easily be used to bootstrap jurisdictional issues: got jurisdiction to approve or disprove the transfer of licenses but no express statutory authority to require unbundling of the licensee's product offerings? Just make it a "optional" condition of the license transfer, add water, mix, and you have fresh jurisdiction to regulate a whole new area.
The problem with this approach, however, is that it renders superfluous Congressional attempts to delineate our areas of responsibility. When unelected federal regulators are not bound by specific Congressional delegations of power, governmental accountability, principles of federalism, and the rule of law are thwarted. And each time this happens, we are all a little less free.
The agency may not only be seeking to impose conditions that exceed its statutory authority. The conditions might be unconstitutional to boot. As with the commitment to provide children's programming that arose out of the FCC's consideration of the 1995 CBS/Westinghouse application for transfer of control, the Commission might seek to require indirectly the very sort of content-based commitments that it may well suspect the First Amendment cordons off from its reach. And each time this happens, we lose some freedom of speech.
Voluntary standards are tempting to regulators for technical reasons too. They allow agencies to bypass the seemingly cumbersome and time-consuming requirements of the Administrative Procedure Act, such as notice and comment. These procedures, however, were designed and enacted into law in order to provide some measure of accountability and reasoning in agency decisionmaking. When effectively binding rules -- which, as I have argued, is what "voluntary standards" are -- are adopted but these procedures are not followed, the safeguards of the APA are violated.
There is another reason that agencies might prefer voluntary standards to rules: they are harder to challenge in a court of law. Judicial review of the statutory basis for "voluntary" standards may be difficult to obtain because such guidelines, being technically non-binding, may never formally be announced or enforced against any regulatee. Indeed, the agency's "suggestions" may be entirely unwritten, emanating from ad hoc discussions between regulators and the regulated. For these reasons, procedural problems of jurisdiction and of justiciability may arise for plaintiffs who try to challenge administrative arm-twisting.
Moreover, while regulatees who are the subject of retaliatory adverse action for failure to accede to the agency's wishes will have certainly have standing to challenge that action, as opposed to the standards themselves, success in that endeavor will be hard to come by. It is not easy to prove retaliation as a factual matter. And as long as the agency articulates a contemporaneous, reasonable explanation for its decision, courts are generally required to defer to the agency.
Thus, by issuing "voluntary standards" in one area while wielding tremendous discretionary authority over industry in others, the agency can obtain indirectly guarantees from regulatees that it lacks substantive authority to require directly or which would likely violate the Constitution if that were done -- all the while increasing insulation of its actions from judicial review.
Regulated entities should not be put in the untenable position of being asked by those with potential power to regulate their businesses out of existence to "agree" to certain rules of conduct that would be unlawful if promulgated formally. In the interest of fairness and accountability, I believe that the Commission should adopt rules, as opposed to nominally non-binding "standards" or "guidelines," whenever possible.
If our statutory authority to prescribe certain rules of conduct is dubious, covered entities should have the opportunity to challenge the legal basis for any such rules in a court of law. We should not resolve doubts about statutory authority by issuing nonbinding documents rather than rules. We should either not act at all, or act through established rulemaking processes, with notice and comment, and then defend our position. But we should not leave regulated entities with decreased opportunities for judicial review of the standards but effectively bound to comply with them.
By avoiding procedural mechanisms such as "voluntary standards," we could help, as legal scholar Lars Noah put it, to "push administrative bargaining out of complete darkness and, if not into the sunshine, at least into the shadow of the law." (Lars Noah, "Administrative Arm-Twisting in the Shadow of Congressional Delegations of Authority," 1997 Wis. L. Rev. 873, 941)).
In the end, though, what makes the above-described administrative arm-twisting work is the repeat-player nature of most regulated entities. They know they will have to deal with regulators not just once, but over the course of many decisions about their very livelihood. The pressure to go along to get along can be powerful.
I understand that pressure. Yet I would give the media industry an admittedly unsolicited piece of advice to place on the other side of the scale: the broad discretion that you bargain away to your friends today will almost certainly be used against you by your foes tomorrow. In the long run, negotiating when the law is on your side may be more harmful to your interests than the immediate regulatory evil you seek to avoid.
But it is the Media Institute that is uniquely situated to take a stand against the subtle, but nonetheless real, effects of administrative arm-twisting. It has no government licenses to lose or sanctions to avoid, only people to persuade.
As Americans, we join many voluntary groups: civic, social, religious, charitable, and others. In the last century, DeTocqueville was amazed at the capacity of Americans to join voluntary groups. Through these groups and our own initiative, we engage in many voluntary activities -- not as the result of coercion or government enforcement, but through personal commitments. The Media Institute is one such organization.
In this regard, the Media Institute is a striking symbol of the byproducts of the constitutional principles that it so vigorously defends. It is the First Amendment that protects the associational rights of the members of the Media Institute to convene likeminded persons for the purpose of advancing their ideas. It is the First Amendment that protects the Media Institute from government impingement upon, or retaliation for, the statements that it makes in pursuit of those goals, however critical of government or individual decisionmakers they may be. Without the First Amendment, we might not have a Media Institute: its ideas might be "too dangerous," or its voice "too loud."
And without the Media Institute, we would not have a First Amendment discourse in government that is as meaningful as it is. Thank you for the good work that you do, for your vigilance and thoughtfulness on the issues that surround the regulation of communication. Please keep it up.