Two popular conservative talk radio hosts, Kirby Wilbur and John Carlson, explained why the gas tax was bad news and urged listeners to sign the 225,000 petitions necessary to get the rollback initiative on the November ballot, though they played no official role in the campaign and regularly featured on their shows defenders as well as opponents of the tax hike. With the hosts' help, the petition drive got almost twice the needed signatures, but the ballot initiative, strongly opposed by labor unions, the state's liberal media, environmental groups and other powerful interests, narrowly lost.
Meantime, a group of pro-tax politicians sued No New Gas Tax, arguing that Wilbur's and Carlson's on-air commentaries were "in-kind contributions" and that the antitax campaign had failed to report them to the proper state authorities. The suit sought to stop NNGT from accepting any more of these "contributions" until it disclosed their worth--though how the initiative's organizers could control media discussions or calculate their monetary value remained unclear. The complaint also socked NNGT with civil penalties, attorneys' fees and costs, and other damages. Even more offensively, to litigate the suit the politicians hired a private law firm, Foster Pepper & Shefelman, which serves as bond counsel to Washington state. The firm, which represents unions, hospitals and retirement funds among its other clients, could thus clean up from the state's plan to sell gas-tax-backed bonds. Appearance of corruption, anyone?
The real target of the suit was clearly Wilbur and Carlson, or, more accurately, their corporate employer, Fisher Communications. If NNGT received the "contributions," that meant Fisher had sent them by broadcasting Wilbur's and Carlson's support for the initiative. Washington law limits contributions in the last three weeks of a political campaign to $5,000. Depending on how one measured the dollar worth of on-air "contributions," Fisher could thus face big fines and criminal penalties if it let Wilbur and Carlson keep talking about the gas tax. "Thankfully, Fisher assured us that we could keep talking about the subject on the air, and we did," Wilbur says. The judge ruled in favor of the pro-tax pols, though he finessed the $5,000 limitation problem by ruling only on the "contributions" that occurred prior to the campaign's last three weeks.
The Institute for Justice, a libertarian legal defense group, has entered the fray, filing both an appeal to the Washington Supreme Court and a counterclaim against the politicians behind the suit. "I think this case presents a substantial issue under the First Amendment," institute attorney Bill Maurer explained. "This is one of the most important cases nationally about the right of the press to speak freely, without the interference of the government or regulation of the government--because the power to regulate is the power to suppress." Should the appeal lose, the days of political talk radio could be over not only in Washington State but everywhere. "McCain-Feingold could definitely be used in the same fashion," Mr. Maurer tells me. "In fact, the prosecutors in this case say McCain-Feingold permits them to do this. But pretty much any state that has campaign-finance laws that restrict contributions is subject to this abuse, too."
All this massively begs the question: Why should any American need government permission to express himself? Instead of a media exemption, blogger Glenn Reynolds sarcastically commented at a recent conference, maybe we need a "free speech exception, in which you are allowed to say what you want about political candidates without fear of prosecution by the government."
You'd think that the Supreme Court would have rescued the new media--and the nation--from all this regulatory tyranny. President Bush reportedly agreed not to veto McCain-Feingold only because he was sure the court would do it for him and he could thereby avoid riling up Sen. McCain. After all, the language of the First Amendment is unambiguous: "Congress shall make no law . . . abridging the freedom of speech, or of the press." The court has extended First Amendment free-speech protection in recent years to nude dancing, animated online kiddie porn, flag burning, tobacco advertising and cross burning. For its original architects, of course, the First Amendment's chief aim was to protect political speech--the right to criticize the government. The notion that government could restrict the speech of some--which is what campaign-finance rules do--would have been the very definition of unconstitutional tyranny for men like Samuel Adams or James Madison. How could the justices not stop the campaign-finance juggernaut?
Yet the Court's 5-4 McConnell v. FEC ruling approved almost all of McCain-Feingold. The 2003 decision shocked many, but the court's "evolving" jurisprudence in the area of campaign finance should have made it not all that surprising. For the past three decades, the Supreme Court has chopped steadily away at constitutional protection for political speech when campaign finance is at issue. In its 1976 Buckley v. Valeodecision, the court took the first, disastrous step by authorizing the "balancing" of free speech concerns with the "governmental interest" in preventing "the actuality and the appearance of corruption."
The balancing idea has become a liberal commonplace, expressed bluntly by former Democratic House minority leader Richard Gephardt a few years ago: "What we have is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy." But as commentator Thomas Sowell retorted, whatever Mr. Gephardt's definition of a healthy campaign is, "it is not part of the Constitution of the United States--and free speech is." In fact, it is the bedrock of our healthy democracy.
Buckley's loose language is troubling, too. "The 'appearance of corruption' can mean anything," says former FEC commissioner Smith. "If the 'appearance of corruption' is sufficient to justify regulation, the practical effect is to eliminate the need for the government to show any justification for the regulation in question." In fact, even John McCain, now incorruptible after his involvement as one of the scandalous Keating Five, could appear corrupt. Several aides from his 2000 presidential run, including his former campaign manager, press secretary, finance director and legal counsel have been working for the Reform Institute, a nonprofit group dedicated to (you guessed it) campaign-finance reform--though it primarily seems to be a nascent 2008 McCain for President campaign. Some months back, when Cablevision sought approval for a pricing change from the Senate Commerce Committee, then chaired by Mr. McCain, the company developed a sudden interest in campaign-finance reform and gave the Reform Institute a $200,000 "soft" donation. Looks fishy, no?
Making matters worse, the Supreme Court's 1990 Austin v. Michigan Chamber of Commerce decision redefined "corruption" to mean not just the exchange of political favors for money--seemingly Buckley's view, though the court's opinion is vague--but also "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." In other words, the court's majority fully embraced the Inequality = Corruption thinking of the campaign-finance reformers. If corporations had or appeared to have too much influence, government could now stamp out this "corruption" by shutting them up, as McCain-Feingold has done, rather than by the checks and balances of faction against faction, as the Founders envisioned.
In his powerful McConnell dissent, Justice Thomas spelled out "the chilling endpoint" of the court's reasoning: "outright regulation of the press"--exactly what the campaign-reform theorists ultimately seek. "Media companies can run pro-candidate editorials as easily as nonmedia corporations can pay for advertisements," Justice Thomas explained. "Media corporations are influential. There is little doubt that the editorials and commentary they run can affect elections." The Supreme Court has found little to distinguish media and nonmedia corporations. Asked Justice Thomas: "What is to stop a future Congress from determining that the press is 'too influential,' and that the 'appearance of corruption' is significant when media organizations endorse candidates or run 'slanted' or 'biased' news stories in favor of candidates or parties?" Answer: Nothing. "Although today's opinion does not expressly strip the press of First Amendment protection," Justice Thomas warned, "there is no principle of law or logic that would prevent the application of the Court's reasoning in that setting. The press now operates at the whim of Congress."
Perhaps the liberal mainstream media will stop cheering campaign-finance reform when they realize their First Amendment rights are at stake, too.
Though campaign-finance madness is the No. 1 regulatory threat to the new media, it's not the only one. The left is now pushing Congress to restore the Fairness Doctrine, which would kill talk radio and possibly conservative-friendly Fox News, too.
For those who don't remember, the Federal Communications Commission's Fairness Doctrine, formalized in the late 1940s but dating back to 1929, required radio and later television stations to cover "vitally important controversial issues of interest in the community served by the broadcaster" and to provide "opportunity for the presentation of contrasting viewpoints on such issues." Any broadcaster that didn't follow these regulations could face fines, free time given to voices that federal regulators felt hadn't gotten fair treatment, and even loss of operating license. Concern that particular partisan views could dominate what was then a very limited broadcast spectrum, which government thought it had to parcel out with the public interest in mind, drove this meddling. But politicians and advocacy groups frequently used (or abused) the Fairness Doctrine to go after their political enemies, as one former Kennedy administration official acknowledged: "Our massive strategy was to use the Fairness Doctrine to challenge and harass the right-wing broadcasters, and hope that the challenges would be so costly to them that they would be inhibited and decide it was too costly to continue."
The doctrine made it hard to program political talk radio in today's Rush Limbaugh/Sean Hannity sense--boisterously opinionated, unafraid to name names, informative and, if you disagree with the host's politics, infuriating. If a station ran a show like Mr. Limbaugh's, drawing upward of 20 million listeners a week, it would also have to run a lefty alternative, even if--as with ratings-challenged Air America in some markets--it can't get any sponsors. Too risky, most radio execs concluded, and kept opinion programs off the air. In 1980, talk shows of any kind numbered fewer than 100 nationwide.
All that changed in the 1980s, when Ronald Reagan's free-market-minded FCC stopped enforcing the Fairness Doctrine and then dumped it entirely in 1987. Because cable and satellite television and FM radio had vastly expanded the number of television and radio stations, "the new technological abundance," in regulatory theorist Peter Huber's phrase, had robbed the doctrine of any plausible "scarcity" rationale.
That the doctrine was also "chilling to free speech," as FCC head Mark Fowler argued, became crystal clear after it was gone: AM radio exploded with political talk shows. From under 5% of all programming, "informational" programming expanded to over 20% of the AM mix just seven years after the Fairness Doctrine's demise. Today, more than 1,400 stations feature the talk format exclusively--and the vast majority broadcast conservative voices, because that's what draws the listeners, desperate for an alternative to the liberal mainstream press.
Small wonder, then, that House Democrats proposed two bills in 2005 to bring the Fairness Doctrine back--and as a law, rather than a mere regulation. Rep. Louise Slaughter of New York, who introduced the first of the two bills, says that right-ruled radio is a grave threat to American freedoms, "a waste of good broadcast time, and a waste of our airwaves." People "may hear whatever they please and whatever they choose," she tells PBS's Bill Moyers, in a statement as incoherent as it is illiberal. "And of course they have the right to turn it off. But that's not good enough either. The fact is that they need the responsibility of the people who are licensed to use our airwaves judiciously and responsibly to call them to account if they don't." In other words, people can't be trusted with freedom but need the supervision of a paternalist government.
Ms. Slaughter doesn't want to re-regulate only radio. When asked by Mr. Moyers if she was also proposing the new Fairness Doctrine for Fox News or MSNBC, Slaughter responded: "You bet. . . . Fairness isn't going to hurt anybody." If there's anything liberals hate more than talk radio it's Fox News, which has dominated cable news by appealing to conservative viewers fed up with the broadcast networks' liberal bias. Rep. Maurice Hinchey of New York, sponsor of the second Fairness Doctrine bill, went so far as to host a special Capitol Hill screening of "Outfoxed: Rupert Murdoch's War on Journalism," a "documentary" hit job. Ms. Slaughter, Mr. Hinchey, Vermont socialist Rep. Bernie Sanders, Washington state's Rep. Jay Inslee and several other House lefties have recently formed the Future of American Media Congress to push for a media crackdown.
It's easy to dismiss the Orwellian policy prescriptions of small fry like these. But look who else has been talking about the Fairness Doctrine:
There has been a profound and negative change in the relationship of America's media with America's people," John Kerry told the Boston Globe's Thomas Oliphant after losing the 2004 presidential race. "We learned that the mainstream media, over the course of the last year, did a pretty good job of discerning," he said, inaccurately. "But there's a . . . submedia that talks and keeps things going for entertainment purposes rather than for the flow of information," he complained. "This all began, incidentally, when the Fairness Doctrine ended," Mr. Kerry maintained. "You would have had a dramatic change in the discussion in this country had we still had a Fairness Doctrine in the course of the last campaign."
Al Gore, in a typically overheated October speech bemoaning the purported hollowing out of the American "marketplace of ideas," blamed it in part on the repeal of the Fairness Doctrine, after which "Rush Limbaugh and other hate-mongers began to fill the airwaves." And here's Howard Dean, now chairman of the Democratic National Committee, in a 2003 interview railing against Rupert Murdoch: "I believe we need to reregulate the media . . . so we can be sure that the American people get moderate, conservative and liberal points of view." Mr. Dean noted that he wouldn't need legislation to do this--he could just appoint "different kinds of people" to the FCC.
Finally, in early 2005, an online petition drive called for Americans to "renew the Fairness Doctrine." The imbalance favoring conservative media voices, especially in talk radio, the petition argued, "results in issues of public importance receiving little or no attention, while others are presented in a manner not conducive to listeners' receiving the facts and range of opinions necessary to make informed decisions." One of the three sponsors of this paternalistic document: Media Matters for America, a left-wing press watchdog group, founded by conservative-turned-lefty David Brock, with help from ex-Clinton adviser John Podesta.
These aren't marginal figures; they're the heart of today's Democratic Party. Their calls for reform rest on a preposterous claim: that "media consolidation" has led to a sharp narrowing in the range of viewpoints available to the American people. In an era of newspapers, magazines, books, broadcast radio and television, cable and satellite television, and the Internet--now joined by satellite radio, podcasts and even newer forms of "technological abundance"--the involved citizen has never had more information, more debate, more ideas from all political perspectives at his fingertips. What's really happening is that the left, having lost its media monopoly, has had trouble competing in a true "marketplace of ideas" and wants to shut that marketplace down.
If the Democrats take back Congress or the White House, watch out. Nothing would please them more than to drag the country back to the good old days, when liberals didn't have to put up with Rush Limbaugh and Laura Ingraham and Bill O'Reilly and Matt Drudge and the countless other upstarts recasting our public debate.
The right--joined by free-speech defenders from across the political spectrum--needs to defeat the liberal regulatory threat before it does real damage to Americans' rights to express their political views. President Bush should strongly back Rep. Hensarling's Online Freedom of Speech Act, whose sponsors may reintroduce it soon in the House under regular rules, which require only a simple majority to pass it. The president has just nominated three reportedly liberty-minded lawyers to fill FEC vacancies, including Robert Lenhard, part of the legal team that challenged McCain-Feingold's constitutionality. One campaign-finance reform group described the Lenhard pick as "beyond disappointing": excellent news for free-speech fans.
This week, in Wisconsin Right to Life v. FEC, the Supreme Court declined for now to rule definitively on a new challenge to McCain-Feingold. This may be excellent news, since it means the court is likely to decide a future appeal once Sam Alito has replaced Sandra Day O'Connor, who in McConnell cast the deciding vote in favor of McCain-Feingold. If neither Congress nor the Supreme Court does away with this unconstitutional, un-American travesty, we can expect election regulations, in the grim words of Justice Antonin Scalia's McConnell dissent, "to grow more voluminous, more detailed, and more complex in the years to come--and always, always, with the objective of reducing the excessive amount of speech." Thus will our most effective real protection against "the actuality and appearance of corruption"--the First Amendment itself--be nullified.
Lovers of liberty should expose calls to restore the Fairness Doctrine for the fraudulent power-grab that they plainly are. And the right, in particular, needs to understand how much it has benefited from a deregulated media universe. It should be confident that it has the right ideas, and that when it gets the chance to present them directly to the American people--as the new media have allowed it to do--it will win the debate.
Mr. Anderson is senior editor of City Journal, in whose Winter issue this article appears, and author of "South Park Conservatives" (Regnery, 2005), which you can buy from the OpinionJournal bookstore.
