Bills
| 3.23.22

Should TV, Cable, and Radio Stations Have to Give Political Candidates Free Airtime? (H.R. 896)

Do you support or oppose this bill?

What is H.R. 896?

(Updated February 20, 2022)

This bill — the Fairness in Political Advertising Act of 2019 — would require television broadcasting stations and cable operators to make free broadcast time available for political advertising. For political candidates in statewide or national elections whose parties received more than two percent of total votes in the most recent election, the bill would require an equal amount of free broadcast time to each candidate in each even-numbered year. Each candidate would receive a minimum of two hours of free broadcast time.

This bill also sets standards for allotting free broadcast time from 7-10pm during specific periods before an election, at comparable times of day and days of the week, to candidates for the same office. For TV stations, at least half of the allotted time per candidate would be during the 7-10pm primetime window.

If a station doesn’t comply with the requirements set forth in this bill, the Federal Communications Commission (FCC) could deny its license renewal.

Nothing in this bill, and no use of allotted free broadcast time, would restrict a candidate’s right to purchase other broadcast time.

Argument in favor

The high cost of buying advertisements for their campaigns makes candidates for public office beholden to special interests’ financial support, perverting American democracy. Giving political campaigns free air time would remove this pressure on political candidates, and give campaigns with less money a better chance.

Argument opposed

It’d be unconstitutional to require broadcasters to give free air time to political campaigns, as it’d violate either — or both — the First and Fifth Amendments. Additionally, given the range of mediums for campaigns to get their messages to voters, it’s no longer crucial to have TV advertising, so this bill’s impact would be less than advocates suggest.

Impact

TV stations; cable operators; radio stations; political campaigns; candidates for political office; campaign finance; and the FCC.

Cost of H.R. 896

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Marcy Kaptur (D-OH) reintroduced this bill from the 115th Congress to level the playing field for viable candidates to compete against campaigns bankrolled by special interests. In floor remarks when reintroducing this bill in the 115th Congress, Rep. Kaptur said:

“It's time to level the playing field for viable candidates to compete against campaigns bankrolled by special interests. My bill would provide this access. It would require television stations to make available 2 hours of free advertising broadcast time during each even-numbered year, to each qualified political candidate in a statewide or national election. The direction we are headed, only millionaires or corporate interests will have a seat at the representative table. This is unacceptable in our democracy. Of the money raised in political campaigns, the largest expense for campaigns is advertising. Even today in this internet world, most dollars are still spent on television ads. In the 2014 midterms, $2.8 billion was spent on political television ads. In 2018, Cook Political Report estimates $2.4 billion will be spent on local broadcast and another $850 million for local cable. The math is clear: to be a viable candidate in America today, you need an incredible amount of capital. Our Fathers would be ashamed of this truth.”

Save Our Elections notes that candidates “spend most of their funds on radio/TV airtime[,] which makes them beholden to big donors,” and adds:

“A majority of the money spent in political campaigns is spent on advertising. The candidates with the most money have the loudest voices, drowning out ordinary people running for office. The bad taste from negative ads tends to turn people off. Consequently they lose the motivation to vote. Most other countries don't allow negative ads. Some countries, such as Brazil, have dedicated equal TV time for each politician to speak. This way voters can learn about each candidate and what they really stand for on a level playing field.”

In comments at an issue forum sponsored by the USC Annenberg Norman Lear Center and the Los Angeles League of Women Voters in 2002, Walter Cronkite argued that it was time to require broadcasters to give free air time to political campaigns:

“[I]t's time to pass a bill that would require broadcasters to provide free air time during political campaigns as is done in virtually all of the world's other democracies. We'd like to see a bill that has two parts. One would require all television and radio stations to devote at least two hours a week to candidate issue discussion in the period just before an election. They could choose how to do that by airing debates, interviews, mini-debates or town hall meetings. Whatever. The second part would create a voucher system that would give a candidate the flexibility to place his free commercials on the television or radio station most advantageous to him. The vouchers would be financed by a small tax on the broadcast industry.”

In the same issue forum, Matt Klink, then-vice president of Cerrell & Associates, argued against free air time for political campaigns, pointing out that “Congress already has a pretty sweet deal when they buy ads. They get ads at the lowest unit rate available. And now to even suggest that they get free air time is really a joke.” Instead, Klink argued that politics simply didn’t matter enough to most people’s lives to justify free air time for political campaigns:

“[T]he idea that ideas, not money, should determine who gets elected—it would be really great if we could have every single candidate do Lincoln-Douglas type debates. After about the third one, you'd have about ten people in the room and half of them would be paid people by each campaign. People just don't care. Politics does not make that much of a difference in everybody's lives. I hate to admit it to you. You all are in the minority of the American populace. They are concerned about elections maybe on Election Day. And that's why political campaigns have to go to such great lengths buying TV advertising time to play the same message over and over and over again to cut through the clutter of everything that's out there.”

In 2003, Laurence H. Winer, a then-visiting professor at the Brooklyn Law School and professor of law and faculty fellow at the Center for the Study of Law, Science and Technology at Arizona State University College of Law, argued that free air time for political campaigns would be unconstitutional:

“The legal justifications offered for free airtime should not be accepted. Scarcity no longer marks broadcasting in the United States. Free airtime is not a price paid for use of the spectrum. The government does not own the spectrum. It does not regulate the content of newspapers because they use sidewalks to deliver their product. The broadcasters have created almost all the value of the licenses since 1927. Free airtime is less a payback for using the spectrum than an open-ended effort by Congress to extract favors from the broadcasting industry. Free airtime also places an unconstitutional condition on receiving a broadcasting license. The proposal transfers the burden of funding campaigns from supporters of candidates to commercial broadcasters, an unconstitutional transfer of wealth under the Fifth Amendment.”

This bill’s opponents argue that it’d be a violation of networks’ First Amendment free speech rights to make programming decisions.

This bill has two cosponsors, both of whom are Democrats. Last Congress, this bill had two cosponsors, both of whom were Democrats. Rep. Kaptur introduced previous versions of this bill in 2011 and 2013, neither of which had any cosponsors or received a committee vote.


Of Note: The Federal Communications Commission (FCC) has an “Equal Time Rule” that requires broadcast networks to give equal amounts of time to “legally qualified” political candidates for office, but there are at least four very broad exemptions that cover most — if not all — types of programming, including debates, newcasts, interviews, breaking news, and documentaries. This bill wouldn’t include any such exemptions, and would create a minimum amount of air time. “Qualified” candidates are those who belong to political parties that won more than two percent of the vote in the most recent statewide or national election.

Currently, broadcasters are required to sell ad slots to federal candidates at the lowest unit rate during election season.

According to a 2001 study, free media for politicians is “the most widely used campaign financial regulation in the world,” with only seven of 60 countries surveyed failing to provide any free air time to their candidates. The study found that many European countries had not only developed a system of free air time, but also limited purchased advertising.


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / bee32)