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Media Reform, Lessig Fighting Corruption, Free Air Time

By Jack M. Balkin

Last week I attended the National Conference on Media Reform, hosted by Free Press, a "national, nonpartisan organization working to reform the media" by promoting "diverse and independent media ownership, strong public media, and universal access to communications." The tenor of the conference was set by Josh Silver, Executive Director of Free Press, in his opening remarks: "The corporate media are not a watchdog protecting us from the powerful, but a lapdog begging for scraps."

Larry Lessig delivered the opening plenary. Lessig was invited, no doubt, as one of our nation's leading activists, scholars, and visionaries in the struggle for a "free culture" in the face of excessive intellectual property rights and telecommunications corporations efforts to exert proprietary control over Internet communications channels. But Lessig announced last summer, courageously and admirably in my opinion, that he would be leaving the cause that had defined his career for the previous decade in order to fight corruption -- not out and out bribery, but the far more pervasive problem of money's influence over our democratic political process. Lessig's NCMR address, accordingly, focused on his fight against corruption, in particular his new advocacy organization, Change Congress, not media reform per se. In fact, Lessig made a special plea for support from the thousands of media activists in the audience. He argued that, as important as media reform is, (1) media reform will not by itself end the profoundly dangerous corruption of democratic government wrought by public officials' abject dependence on massive corporate contributions and (2) media reform cannot be achieved so long as corporate media and telecommunications firms can buy undue influence in the halls of power. In short, the dependency wrought by corruption is the fundamental problem that must be solved before others (notably including legislation to combat global warming as well as media reform) can be addressed.

As Lessig enumerated, Change Congress will give its badge of support to candidates for Congress who pledge to:
1. "accept contributions from individuals only, lobbyists excepted";
2. "support the fundamental reform of congressional earmarks";
3. "support reform to increase transparency in Congress"; and
4. "support public financing of public elections."

My kudos to Lessig; as quixotic as his effort may seem, I have no doubt that, as in the area of media and telecommunications reform, he will at the very least succeed in raising awareness of the problem and provoke thought and action towards possible solutions. Yet notably missing from the Change Congress list and Lessig's NCMR address is an action item of direct relevance to the role that corporate media plays in corruption: the obscene amounts that candidates must spend on television advertising.

According to U.S. News & World Reports: "Even before the final primary contests in Montana and South Dakota, the presidential candidates had spent almost $200 million flooding the television sets of Americans with their campaign messages." In past election cycles, total spending on political television advertisements (including all local, state, and federal candidates) have reached $1 billion. In competitive campaigns - those where the margin of victory was 10 percent of votes cast or less --the amount of overall campaign spending devoted to TV advertising exceeded 50 percent. That money must be raised from somewhere, and even with public funding of elections, as Change Congress advocates, candidates are free to eschew public funding if they can raise more money from other sources.

Especially given the inevitable loopholes in other campaign reform measures, an essential action item for fighting corruption must be to work towards requiring broadcast and cable TV licensees to provide free -- or low cost -- air time for candidates and to forbid licensees from selling candidates or political parties any other election advertising. Current law requires that broadcasters sell candidates advertising at their "lowest unit cost" for the same type of advertising. But, in practice, that provision imposes virtually no cap on candidates' advertising costs because unlike most other advertisers, candidates must buy "non-preemptible" time, for which broadcasters charge much higher rates.

Rules for free or discounted air time have been proposed repeatedly in Congress and the FCC, including in the original version McCain-Feingold campaign finance reform legislation, but have gotten nowhere, in part because of heavy media firm lobbying against them (i.e., corruption). Most other advanced democratic countries provide candidates and parties free air time. The UK and Israel, for example, provide parties with free air time proportional to their seats in Parliament (with an allocation for unrepresented parties as well) and forbid any television campaign advertising aside from that free time. And despite campaign finance reform opponents charges that such limitations make it more difficult to challenge incumbents, there is no shortage of successful challenges, in the case of Israel even by new parties.

It is a complex question whether such free air time laws could survive First Amendment challenge in the United States. To the extent not, as in other areas in which campaign finance reform has been held unconstitutional, it would be yet another example of the Supreme Court's impoverished jurisprudence, one that fails to define the First Amendment in terms of free speech's importance for democratic governance and has allowed the First Amendment to be used as a shield for the destructive corruption of our democratic process.

Full post as published by Balkinization on June 10, 2008 (boomark / email).