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The Plot to Shush Rush and OReilly
Talk radio, cable news, and the blogosphere freed U.S. political discourse. The Left wants to rein it in again.
The rise of alternative mediapolitical talk radio in the eighties, cable news in the nineties, and the blogosphere in the new millenniumhas broken the liberal monopoly over news and opinion outlets. The Left understands acutely the implications of this revolution, blaming much of the Democratic Partys current electoral trouble on the influence of the new medias vigorous conservative voices. Instead of fighting back with ideas, however, todays liberals quietly, relentlessly, and illiberally are working to smother this flourishing universe of political discourse under a tangle of campaign-finance and media regulations. Their campaign represents the most sustained attack on free political speech in the United States since the 1798 Alien and Sedition Acts. Though Republicans have the most to lose in the short run, all Americans who care about our most fundamental rights and the civic health of our democracy need to understand whats going onand resist it.
The most imminent danger comes from campaign-finance rules, especially those spawned by the 2002 McCain-Feingold Campaign Reform Act. Republican maverick John McCains co-sponsorship aside, the bill passed only because of overwhelming Dem support. Its easy to see why liberals have spearheaded the nations three-decade experiment with campaign-finance regulation. Seeking to rid politics of big-money corruption, election-law reforms obstruct the kinds of political speechpolitical ads and perhaps now the feisty editorializing of the new mediathat escape the filter of the mainstream press and the academy, left-wing fiefdoms still regulation-free. Campaign-finance reform, notes columnist George Will, by steadily expanding governments control of the political campaigns that decide who controls government, advances liberalisms program of extending government supervision of life.
The irony of campaign-finance reform is that the corruption it targets seems not to exist in any widespread sense. Studies galore have found little or no significant influence of campaign contributions on legislators votes. Ideological commitments, party positions, and constituents wishes are what motivate the typical politicians actions in office. Aha! reformers will often riposte, the corruption is hidden, determining what Congress doesnt dolike enacting big gas taxes. But as Will notes, that charge is impossible to refute by disproving a negative. Even so, such conspiracy-theory thinking is transforming election law into what journalist Jonathan Rauch calls an engine of unlimited political regulation.
McCain-Feingold, the latest and scariest step down that slope, makes it a felony for corporations, nonprofit advocacy groups, and labor unions to run ads that criticizeor even name or showmembers of Congress within 60 days of a federal election, when such quintessentially political speech might actually persuade voters. It forbids political parties from soliciting or spending soft money contributions to publicize the principles and ideas they stand for. Amending the already baffling campaign-finance rules from the seventies, McCain-Feingolds dizzying dos and donts, its detailed and onerous reporting requirements of funding sourceswhich require a dense 300-page book to lay outhave made running for office, contributing to a candidate or cause, or advocating without an attorney at hand unwise and potentially ruinous.
Not for nothing has Supreme Court Justice Clarence Thomas denounced McCain-Feingolds unprecedented restrictions as an assault on the free exchange of ideas.
Campaign-finance reform has a squeaky-clean image, but the dirty truth is that this speech-throttling legislation is partly the result of a hoax perpetrated by a handful of liberal foundations, led by the venerable Pew Charitable Trusts. New York Post reporter Ryan Sager exposed the scam when he got hold of a 2004 videotape of former Pew official Sean Treglia telling a roomful of journalists and professors how Pew and other foundations spent years bankrolling various experts, ostensibly independent nonprofits (including the Center for Public Integrity and Democracy 21), and media outlets (NPR got $1.2 million for news coverage of financial influence in political decision-making)all aimed at fooling Washington into thinking that Americans were clamoring for reform, when in truth there was little public pressure to clean up the system. The target group for all this activity was 535 people in Washington, said Treglia matter-of-factly, referring to Congress. The idea was to create an impression that a mass movement was afootthat everywhere they looked, in academic institutions, in the business community, in religious groups, in ethnic groups, everywhere, people were talking about reform.
Treglia urged grantees to keep Pews role hush-hush. If Congress thought this was a Pew effort, he confided, itd be worthless. Itd be 20 million bucks thrown down the drain. At one point, late in the congressional debate over McCain-Feingold, we had a scare, Treglia said. George Will stumbled across a report we had done. . . . He started to reference the fact that Pew was playing a large role . . . [and] that it was a liberal attempt to hoodwink Congress. . . . The good news, from my perspective, was that journalists . . . just didnt care and nobody followed up. The hoaxersa conspiracy of eight left-wing foundations, including George Soross Open Society Institute and the Ford Foundationhave actually spent $123 million trying to get other peoples money out of politics since 1994, Sager reportsnearly 90 percent of the spending by the entire campaign-finance lobby over this period.
The ultimate pipe dream of the reformers is a rigidly egalitarian society, where government makes sure that every individuals influence over politics is exactly the same, regardless of his wealth. Scrutinize the pronouncements of campaign-finance reform groups like the Pew-backed Democracy 21, and youll see how the meaning of corruption morphs into inequality of influence in this sense. This notion of corruptionreally a Marxoid opposition to inequality of wealthwould have horrified the Founding Fathers, who believed in private property with its attendant inequalities, and who trusted to the clash of factions to ensure that none oppressed the others. The Founders would have seen in the reformers utopian schemes, in which the power of government makes all equally weak, the embodiment of tyranny.
To eradicate corruption, leading theorists of campaign-finance reform, such as Ohio State University law professor (and former Ohio state solicitor) Edward Foley, Loyola law prof Richard Hasen, and radical redistributionist philosopher Ronald Dworkin, want to replace privately financed campaigns with a system in which government would guarantee equal dollars per voter, as Foley puts it, perhaps by giving all Americans the same number of political coupons, which they could then redeem on the political activities of their choice. This super-powerful government would ban all other political expenditures and require all political groups to get operating licenses from it, with stiff criminal penalties for violators. The experts have even started calling for draconian media restrictions to achieve their egalitarian aims. In Foleys view, the chilling of speech is the necessary price we must pay in order to have an electoral system that guarantees equal opportunity for all. But when these experts pen law-review articles with titles like Campaign Finance Laws and the Rupert Murdoch Problem, you know it isnt the New York Times or CBS News that they have in mind.
Campaign-finance reform now has the blogosphere in its crosshairs. When the Federal Election Commission wrote specific rules in 2002 to implement McCain-Feingold, it voted 4 to 2 to exempt the Web. After all, observed the majority of three Republicans and one Democrat (the agency divides its seats evenly between the two parties), Congress didnt list the Internet among the public communicationseverything from television to roadside billboardsthat the FEC should regulate. Further, the Internet is virtually a limitless resource, where the speech of one person does not interfere with the speech of anyone else, reasoned Republican commissioner Michael Toner. Whereas campaign finance regulation is meant to ensure that money in politics does not corrupt candidates or officeholders, or create the appearance thereof, such rationales cannot plausibly be applied to the Internet, where on-line activists can communicate about politics with millions of people at little or no cost.
But when the chief House architects of campaign-finance reform, joined by McCain and Feingold, suedclaiming that the Internet was one big loophole that allowed big money to keep on corruptinga federal judge agreed, ordering the FEC to clamp down on Web politics. Then-commissioner Bradley Smith and the two other Republicans on the FEC couldnt persuade their Democratic colleagues to vote to appeal.
The FEC thus has plunged into what Smith calls a bizarre rule-making process that could shackle the political blogosphere. This would be a particular disaster for the Right, which has maintained its early advantage over the Left in the blogosphere, despite the emergence of big liberal sites like Daily Kos. Some 157 of the top 250 political blogs express right-leaning views, a recent liberal survey found. Reaching a growing and influential audiencehundreds of thousands of readers weekly (including most journalists) for the top conservative sitesthe blogosphere has enabled the Right to counter the biases of the liberal media mainstream. Without the blogosphere, Howell Raines would still be the New York Timess editor, Dan Rather would only now be retiring, garlanded with praiseand John Kerry might be president of the U.S., assuming that CBS News had gotten away with its last-minute falsehood about President Bushs military service that the diligent bloggers at PowerLine, LittleGreenFootballs, and other sites swiftly debunked.
Are the hundreds of political blogs that have sprouted over the last few yearstwenty-first-century versions of the Revolutionary eras political pamphletspress, and thus exempt from FEC regulations? Liberal reform groups like Democracy 21 say no. We do not believe anyone described as a blogger is by definition entitled to the benefit of the press exemption, they collectively sniffed in a brief to the FEC. While some bloggers may provide a function very similar to more classical media activities, and thus could reasonably be said to fall within the exemption, others surely do not. The key test, the groups claimed, should be whether the blogger is performing a legitimate press function. But who decides what is legitimate? And what in the Constitution gives him the authority to do so?
A first, abandoned, draft of proposed FEC Web rules, leaked to the RedState blog last March, regulated all but tiny, password-protected political sites, so bloggers should be worried. Without a general exemption, political blogs could easily find themselves in regulatory hell. Say its a presidential race, Condi Rice versus Hillary Clinton. You run a wildly opinionated and popular group blogcall it No to Hillarythat rails daily about the perils of a Clinton restoration and sometimes republishes Rice campaign material. Is your blog making contributions to Rice? Maybe. The FEC says that a contribution includes any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office (my italics). If your anti-Hillary blog spends more than $1,000, you could also find it re-classified as a political committee. Then youve got countless legal requirements and funding limits to worry about.
In such a regulated Web-world, bloggers and operators of political sites would have to get press exemptions on a case-by-case basis. The results, election-law expert Bob Bauer explains, would be unpredictable, highly sensitive to subtle differences in facts, and to the political environment of the moment. Even when the outcome is happy, says Bauer, a favorable result is still an act of noblesse oblige by a government well aware that if it turns down a request, the disappointed applicant is left with litigation as the only option.
Sites would live in fear of Kafkaesque FEC enforcement actions, often triggered by political rivals complaints. If the matter is based on a complaint, notes former FEC counsel Allison Hayward, the respondent will receive a letter from the FEC with the complaint and will be asked to show why the FEC shouldnt investigate. An investigation involves the usual tools of civil litigationdocument requests, depositions, briefs, and the like. The outcome can take months or longer to determine, says Hayward. If a complaint is filed against you, there will be a flurry of activity while you respond, then perhaps silencethen another letter will arrive and you will be required to respond promptly, then maybe nothing again for months. Most political bloggers arent paid professional reporters or commentators but just democratic citizens with day jobs who like to exercise their right to voice their opinions. If doing so without a lawyer puts them or their families at risk, many will simply stop blogging about politicsor never start.
If you think such fretting is silly, says Bradley Smith, consider the case of Bill Liles, who faced an FEC inquiry when Smith was commissioner. In 2000, a businessman in the little Texas town of Muleshoe, Harvey Bass, painted save our nation: vote democrat al gore for president on a beat-up box and plunked it on his furniture stores porch. Sick of looking at it, Liles and a friend pasted a bigger and better poster praising W. on a trailer and parked it right across from Basss store. This was too much for another local, Don Dyer, who complained to the FEC that Liless sign lacked mandated disclosures about who paid for it and whether Bush had signed off on it.
Though the FEC in the end let Liles and his fellow activists off, the men had in fact broken not just disclosure rules but any number of other regulations, too, recalls Smith. They had clearly spent a bit more than $250 on their makeshift sign, for example, but hadnt reported it, as required, to the FEC. Total statutory penalties could have easily exceeded $25,000, Smith observes. How different is Liless praiseworthy activism from that of many political bloggers? The medium differs, but Liles, like a blogger, is simply voicing his opinion. And this was pre-McCain-Feingold.
Even if the FEC starts by regulating only a little bit of Web politics, instead of the extensive oversight it had at first plannedand a laxer regime is likelier, thanks to the fierce outburst from political blogs, right and left, when they discovered their freedom of speech under firetheres no guarantee that the commission wont steadily expand its reach later. If the history of campaign finance regulation is any guide, notes Commissioner Toner, once the FEC exercises jurisdiction over the Internet, the Commissions initial set of regulations, even if narrowly tailored, are likely to lead to broader regulation in the future. Right after McCain-Feingold became law, co-sponsor Senator Russ Feingold opined: It is only a beginning. It is a modest reform. . . . There will be other reforms. Most campaign-finance reformers share that regulate-to-the-max outlook, aimingswiftly or incrementallyto close all the loopholes.
Recognizing that McCain-Feingold is out of control, liberty-minded Texas Republican Jeb Hensarling introduced the Online Freedom of Speech Act (HR 1606) in the House last April. (Harry Reid has sponsored identical legislation in the Senate, showing that not all Democrats are lost on the issue.) The bill reinforces the Internets current regulation-free status by excluding blogs and various other Web communications from campaign-finance strictures. Brought to an expedited vote under special rules that required a two-thirds majority in early November, the billopposed strenuously by the campaign-finance reform movementfailed. Todays action marks a sad day for one of our nations most sacred rights: freedom of speech, reflected House Speaker Dennis Hastert. The last thing this Congress should be doing is trying to stifle public debate online.
The House Democrats torpedoed HR 1606, but they had surprising help from about three dozen Republicans. Why did so many normally staunch opponents of campaign-finance speech restrictions shift camp? One possible explanation, perhaps cynical: its hard to unseat incumbents, given their advantages of name recognition, free media exposure, and an easier time raising donations. If they can make it harder for their rivals to speak, which campaign-finance rules help them to do, the challengers task gets harder still. (Notably, after Congress began campaign-finance restrictions in the seventies, incumbency rates began to rise.) Once in office, some Republicans may suddenly like McCain-Feingolds power to shield them from criticismincluding on the Web.
Its not just the blogosphere thats at risk. The Left has also begun to use campaign-finance reformnot McCain-Feingold but equally onerous state regulationsto try to shush political talk radio. The oldest of the new mediaRush Limbaugh went national around 15 years agopolitical talk radio is the Rights dominion. Not one of the top 20 nationally syndicated political shows features a left-of-center host, and right-leaning radio talkers outnumber liberals three to one. Over 40 percent of Americans tune in at least occasionally to this extremely influential medium, and over 20 percent use it as a primary source of political information. Given the Lefts continuing inability to compete on the dialits much-ballyhooed Air America doesnt even register in the Arbitron ratings in some marketsits preferred strategy in the future likely will be to force conservatives like Rush Limbaugh and William Bennett off the air.
Consider whats going on in Washington State as an early warning. Early in 2005, the Democrat-controlled legislature passedand Democratic governor Christine Gregoire signeda bill boosting the states gasoline tax a whopping 9.5 cents per gallon over the next four years, supposedly to fund transportation projects. Thinking that their taxes were already plenty high and that the states notoriously corrupt Transportation Department would just squander the gas-tax revenues (millions on enviro-friendly wildlife overpasses, for instance, but little on new roads), some citizens organized an initiative campaign, as Washington law allows, to junk the new levy: No New Gas Tax.
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 states liberal media, environmental groups, and other powerful interests, narrowly lost.
Meantime, however, a group of pro-tax politicians sued No New Gas Tax, arguing that Wilburs and Carlsons on-air commentaries were in-kind contributions and that the anti-tax 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 worththough how the initiatives 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 states 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 Wilburs and Carlsons 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 sanctions 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 campaigns 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 governmentbecause 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, 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.
Youd think that the Supreme Court would have rescued the new mediaand the nationfrom 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 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 burners, tobacco ads, and cross burners. For its original architects, of course, the First Amendments chief aim was to protect political speechthe right to criticize the government. The notion that government could restrict the speech of somewhich is what campaign-finance rules dowould have been the very definition of unconstitutional tyranny for men like Samuel Adams or James Madison. How could the Supremes not stop the campaign-finance juggernaut?
Yet the Courts 5-to-4 McConnell ruling approved almost all of McCain-Feingold. The 2003 decision shocked many, but the Courts evolving jurisprudence in the area of campaign finance should have made it not all that surprising. For the last three decades, the Supreme Court has chopped steadily away at constitutional protection for political speech when campaign finance is at issue. In its 1974 Buckley decision, 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 Gephardts definition of a healthy campaign is, it is not part of the Constitution of the United Statesand free speech is. In fact, it is the bedrock of our healthy democracy.
Buckleys 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 reformthough it primarily seems to be the 2008 McCain-for-President campaign-in-waiting. Some months back, when Cablevision sought approval for a pricing change from the Senate Commerce Committee, then chaired by 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 Courts 1990 Austin decision redefined corruption to mean not just the exchange of political favors for moneyseemingly Buckleys view, though the Courts opinion is vaguebut 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 publics support for the corporations political ideas. In other words, the Supremes 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, Clarence Thomas spelled out the chilling endpoint of the Courts reasoning: outright regulation of the pressexactly what the campaign-reform theorists ultimately seek. Media companies can run pro-candidate editorials as easily as nonmedia corporations can pay for advertisements, 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 non-media corporations. Asked 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 todays opinion does not expressly strip the press of First Amendment protection, Thomas warned, there is no principle of law or logic that would prevent the application of the Courts 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 Number One regulatory threat to the new media, its 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 dont remember, the Federal Communications Commissions Fairness Doctrine, formalized in the late forties but dating back to 1929, required radio and then broadcast 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 issueswhat came to be known as the equal time rule. Any broadcaster who didnt follow these regulations could face fines, free time given to voices that federal regulators felt hadnt 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 felt 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 todays Rush LimbaughSean Hannity senseboisterously opinionated, unafraid to name names, informative, and, if you disagree with the hosts politics, infuriating. If a station ran a show like Limbaughs, drawing upward of 20 million listeners a week, it would also have to run a lefty alternative, even if as has been the case with ratings-challenged Air America in some marketsit cant 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 eighties, when Ronald Reagans 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 Hubers 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 percent of all programming, informational programming expanded to over 20 percent of the AM mix just seven years after the Fairness Doctrines demise. Today, more than 1,400 stations feature the talk format exclusivelyand the vast majority broadcast conservative voices, because thats 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 backand as a law, rather than a mere agency regulation. New York Democratic representative Louise Slaughter, 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 PBSs Bill Moyers, in a statement as incoherent as it is illiberal. And of course they have the right to turn it off. But thats 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 dont. In other words, people cant be trusted with freedom but need the supervision of a paternalist government.
Slaughter doesnt want to re-regulate only radio. When asked by Moyers if she was also proposing the new Fairness Doctrine for Fox News or MSNBC, Slaughter responded: You bet. . . . Fairness isnt going to hurt anybody. If theres anything liberals hate more than talk radio its Fox News, which has dominated cable news by appealing to conservative viewers fed up with the networks liberal bias. New York Democratic representative Maurice Hinchey, sponsor of the second Fairness Doctrine bill, went so far as to host a special Capitol Hill screening of Outfoxed: Rupert Murdochs War on Journalism, a documentary hit job. Slaughter, Hinchey, Vermont socialist Bernie Sanders, Washington State congressman Jay Inslee, and several other House lefties have recently formed the Future of American Media Congress to push for a media crackdown.
Its 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 Americas media with Americas people, John Kerry told the Boston Globes 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 theres a . . . sub-media 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, 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.
Former vice president and Democratic standard-bearer Al Gore, in an 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 heres current Democratic Party chair Howard Dean, in a 2003 interview railing against Rupert Murdoch: I believe we need to re-regulate the media . . . so we can be sure that the American people get moderate, conservative, and liberal points of view. Dean noted that he wouldnt need legislation to do thishe 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 exClinton advisor John Podesta.
These arent marginal figures; theyre the heart of todays 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 Internetnow joined by satellite radio, podcasts, and even newer forms of technological abundancethe involved citizen has never had more information, more debate, more ideas from all political perspectives at his fingertips. Whats 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 Dems 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 didnt have to put up with Rush Limbaugh and Laura Ingraham and Bill OReilly and Matt Drudge and the countless other upstarts recasting our public debate.
The Rightjoined by free-speech defenders from across the political spectrumneeds to defeat the liberal regulatory threat before it does real damage to Americans rights to express their political views. President Bush should strongly back Hensarlings 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. Showing that he gets 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-Feingolds constitutionality. One campaign-finance reform group described the Lenhard pick as beyond disappointing: excellent news for free-speech fans.
In deciding two campaign-finance reform cases in the months ahead, the Roberts Court, one hopes, will show greater enthusiasm for First Amendment protection of political speech than did its predecessor, which should have shot down McCain-Feingold. If neither Congress nor the Supreme Court repeals this unconstitutional, un-American travesty, we can expect election regulations, in the grim words of Justice Antonin Scalias McConnell dissent, to grow more voluminous, more detailed, and more complex in the years to comeand 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 corruptionthe First Amendment itselfbe 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 peopleas the new media have allowed it to doit will win the debate.