Senator, Show Us What You Got

Sen. Dianne Feinstein will be riding herd over a range of campaign reform ideas, including one to provide free television time to federal candidates. How far will she go to move the agenda?
No Subscription Required

X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When Hillary Clinton recently announced her presidential campaign would likely bypass public financing for both the primaries and the general election in 2008, The New York Times and Washington Post declared our so-called clean presidential election system dead. Call it “so-called clean,” because the method of awarding candidates millions of matching taxpayer dollars in exchange for spending limits has long failed to alleviate fundraising pressure. Both John Kerry in 2004 and George W. Bush in 2000 felt the pot of money was inadequate for the primaries, and it seems every federal attempt to stanch the flow of money into the political world is met by another cadre of lawyers eager to weave one more loophole. But still, in the wake of Clinton’s announcement � and estimates that 2008 will be the first billion-dollar presidential election � the reformers in Washington are out once again with bills to “fix” the system. Sen. Russ Feingold, D-Wisc., for instance, last month proposed doubling the amount of public money available in the presidential fund for the 2012 election. A key player who will sort through the possible remedies is California’s Dianne Feinstein, the Democrat who recently took over the chairmanship of the Senate Rules Committee. People in the pro-campaign finance reform camp say one of the ideas in which the senator is interested is mandating that the networks provide free � or deeply discounted � television ads to federal candidates. TV ads are one of the biggest election cost drivers, eating up between 50 to 70 percent of a candidate’s budget, depending on the district, according to Evan Tracey, chief operating officer of TNSMI/Campaign Media Analysis Group. Candidate advertising is different than marketing for other products, Tracey said. “[Television] is effective because campaigns have a one day sale in politics that doesn’t exist anywhere else,” he said. Forcing the networks to offer free or discounted television time is an idea that has been bandied around for years. Hopefully Feinstein will be serious about it, because it is one of the only proposals to target the demand side of election economics rather than just trying to limit the money supply. Think of it like the drug war, which has been a miserable failure because the government consistently focuses on cutting narcotics supply without addressing how to curtail addiction. Rules Committee staff director Howard Gantman declined to discuss exactly what Feinstein’s staff is looking at, but did say the senator was “deeply concerned” about the high cost of television advertising. “The airwaves were provided to the TV networks, but they still are owned by the public,” Gantman said. “There should be some way information about political candidates can be conveyed to voters and not having it be as expensive as it’s become.” That is exactly where the battle lines of any constitutional challenge would be drawn. “The argument in favor is that the broadcast license is a gift that requires public-interest programming,” said Richard Hasen, a professor at Loyola Law School in Los Angeles who runs an election law blog. Under this logic, the government is well within its rights to require the networks to provide free time for political candidates, because few other types of speech so neatly fall under the rubric of promoting an informed public on vital issues of the day. Just as Congress and the Federal Communications Commission mandate a certain level of children’s programming, so should they require a space for political speech, according to Meredith McGehee, policy director at the Campaign Legal Center in Washington, D.C. Conversely, broadcasters will most likely argue that free TV ads are nothing more than an unconstitutional government taking. If campaign expenditures are such a big problem, they might argue, then why doesn’t the government subsidize other expenses � like air travel � which is also subject to heavy regulation? And if the government mandates that broadcasters air a particular message at a particular time, broadcasters might say, First Amendment implications come into play. Reformers would scoff at those arguments as a fig leaf designed to protect a reliable revenue stream. “The notion to me of a taking, when there is no ownership of the public airwaves, I think is a pretty big stretch,” McGehee said. Still, some proposals floated over the years are clearly aimed at mitigating the industry’s takings argument � giving broadcasters tax credits to offset the lost revenue, for one. True believers think anything short of the holy grail of the reformer movement � full public financing of the presidential and all congressional races � is a cop-out. Perhaps, though that solution is probably impossible to pass during this term. Of course all members of Congress have an inherent disincentive to approve any kind of campaign finance reform, since they won their seats by successfully navigating the current system. Does anyone think it a coincidence that the only morsel of public financing to ever get through Congress affects only presidential contenders and not senators and representatives themselves? So here’s Feinstein’s chance to show us she’s different. If she truly believes in ideas like free television, she can make a name for herself and her Rules Committee by defying the broadcast lobby, building a consensus, and shepherding the concept through the Senate. Her failure will reveal either a lack of will or an absence of clout. Or both.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Trending Stories

 

Featured Product

Global Briefing

A weekly, curated selection of our international content from around the globe, across the business of law, in-house, regulatory, technology and more, with expert insights from our senior editors.

Learn More

More from ALM

 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Privacy Policy

About Us / Contact Us / Site Map / Advertise With Us/ Customer Service / Terms of Service/ FAQ / Privacy Policy

Publications

Law Topics

Rankings

More

Law.com

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.