Now You See It, Now You Don't: Free Air Time For Political Candidates?

Co-Written by Brian Wong

What started with a roar in the President's State of the Union address has settled down to background noise as the controversy over free air time for political candidates continues. Here is a chronology of recent events in this ongoing saga.

In calling for Congress to pass campaign finance reform in his January 27, 1998 State of the Union address, President Clinton said, "I will . . . formally request that the Federal Communications Commission act to provide free or reduced-cost time for candidates who observe spending limits voluntarily."

The next day FCC Chairman William Kennard proclaimed that the FCC has authority to require free time for candidates, and stated that a rulemaking on the subject likely would be considered by the FCC in March. Two other Commissioners, Susan Ness and Gloria Tristani, who like Kennard are Democrats, supported a rulemaking on free or reduced-cost air time. But the two Republican Commissioners, Michael Powell and Harold Furchtgott-Roth, disagreed, stating that Congress has the sole authority to require free or reduced-cost air time.

On February 5, 1998, President Clinton wrote to Chairman Kennard instructing the FCC "to develop policies, as soon as possible, which ensure that broadcasters provide free and discounted air time for candidates to educate voters." On February 19, 1998, Chairman Kennard issued a statement setting forth his "preliminary view that the Commission has authority to act in this area under the public interest standard governing license renewals set forth in Section 309(k)(1)(A) of the Communications Act" consistent with longstanding Commission and judicial precedent.1 The statement also concluded that two statutory provisions addressing broadcasters' obligations to political candidates had not created a legislative scheme precluding further agency action under 47 U.S.C. 309.2

Members of Congress jumped into the fray, with Representative John Dingell (D-Michigan) leading the criticism of the FCC and its asserted lack of authority to act in the matter, and Representative W.J. (Billy) Tauzin (R-Louisiana) introducing a bill to prevent the FCC from requiring free air time. Senators John McCain (R-Arizona) and Conrad Burns (R-Montana) planned to introduce a provision in a supplemental appropriations bill that would ban the FCC from using funds to create and enforce a rule requiring free air time, but the Senate Appropriations Committee decided not to include the provision when President Clinton threatened to veto the bill. Senators McCain and Burns plan to introduce a similar provision in another bill, and Senator S. Trent Lott (R-Mississippi) and Don Nickles (R-Oklahoma) have introduced bills prohibiting a free time requirement.

Finally, at a Senate Appropriations Subcommittee hearing, Senators directly challenged Chairman Kennard's proposals. Appropriations Committee Chairman Ted Stevens (R-Alaska) went so far as to suggest that the FCC should be abolished. While at first he resisted the pressure not to act, Chairman Kennard accepted a compromise. He pledged not to conduct a rulemaking on the issue unless there was a sufficient show of Congressional intent. Instead, he suggested that...