Fair and balanced?

Some Democrats are using Bush's pay-for-say media scandals to push for a new Fairness Doctrine for broadcasting.

By Eric Boehlert

Published February 1, 2005 10:09PM (EST)

As the punditocracy's payola scandal -- which has featured conservative commentators such as Armstrong Williams cashing Bush administration checks -- continues to spread in Washington, some Democrats hope the fallout will be enough to kick-start support for the Fairness Doctrine. Rescinded in 1987 by the Federal Communications Commission, the original doctrine made sure that radio and television broadcasters covered political topics with fairness and balance.

Architects of the policy, established in 1949, concerned themselves with keeping the airwaves open to both opponents and proponents of public-policy issues. They likely never foresaw the possibility of broadcast pundits secretly being on the government payroll while touting White House policies.

But Rep. Louise Slaughter, D-N.Y., thinks the growing outrage over media misconduct will help spur interest in the doctrine. Last week she introduced the Fairness and Accountability in Media Act, which would revive the Fairness Doctrine with new requirements for local broadcasters. Currently, the FCC is investigating the Williams case for possible payola violations -- accepting cash to say things on the air and not disclosing the payments to audiences.

"It's a lot different now since Armstrong Williams," Slaughter says. "The airwaves should be used for public benefit. It's broadcasters' one obligation for condition of license. There's no question they don't operate in the public good."

She and some other congressional members blame the loss of fair broadcasting on the ongoing consolidation of newspapers and broadcast outlets, resulting in few owners controlling much of America's information. Media consolidation "is the most critical issue facing the American people today: whether to allow a handful of people to determine what information we receive and influence the decisions we make," says Rep. Maurice Hinchey, D-N.Y., who will head the soon-to-be announced Media Reform Caucus in Congress. "In a free and open society, in a democratic republic, you need a free and open discussion of the issues. We don't have that today."

The success of the Reagan administration in overturning the Fairness Doctrine ushered in a new age of talk radio, allowing stations to broadcast one political point of view day after day, week after week. As Hinchey and others point out, talk radio has spurred a rightward tilt of the press. A study released last June by Democracy Radio, revealed that national and local conservative broadcasts totaled over 40,000 hours every week, while weekly liberal programming totaled just over 3,000 hours. "We need to return to a free and open discussion of the issues," Hinchey says.

Hinchey and Slaughter face entrenched opposition from both broadcasters who don't want the return of regulation and Republicans who are quite content with the current media landscape. During the Fairness Doctrine debate in the 1980s, the Republican opposition seemed to flow from a general philosophy that there ought to be fewer government regulations on big business. By the '90s, with right-wing talkers such as Rush Limbaugh enjoying enormous success, Republicans often challenged any attempt to bring back the Fairness Doctrine on purely partisan grounds, labeling them efforts to "Hush Rush."

As for the station owners themselves, "We think it's a dangerous for the government to be dictating what's on radio and television programming," says Dennis Wharton, spokesman for the National Association of Broadcasters, which lobbied strenuously to get the Fairness Doctrine repealed. "Look at the media business since the Fairness Doctrine was eliminated, which was before satellite TV and the Internet. You'd be hard-pressed to make the case that there are fewer outlets for expression today than there was then."

"I'm troubled by this development because the Fairness Doctrine has been found to be unconstitutional," adds Adam Thierer, director of telecommunications studies at the Cato Institute in Washington. "Somebody forgot to tell Representative Slaughter the '80s are over." Indeed, for Beltway insiders, any discussion about the Fairness Doctrine will bring back memories of the exhausting debate, which dragged on -- in and out of the courtrooms -- for years during the Reagan administration.

When the FCC instituted the Fairness Doctrine in 1949, it considered station licensees "public trustees," obligated to give a reasonable opportunity for contrasting points of view to be heard on controversial issues of public importance. The FCC never used a stopwatch to time how many minutes proponents and opponents of an issue were given, nor did the FCC require that specific programs grant "equal time" to guests. It simply stated that in the big picture, over a span of days, weeks and months, broadcast outlets should be able to show a general balance granted to certain topics.

The doctrine proved its staying power in 1969, when, in a celebrated case, the Supreme Court ordered a Pennsylvania television station to give equal airtime to an author who had been attacked during the course of a program. Within 20 years, though, Republican-appointed judges and a Republican-appointed FCC chairman succeeded in dismantling the doctrine.

The first blow came in 1981 with appointment of Mark Fowler to head the FCC. A communications attorney who had served on Ronald Reagan's campaign staff in 1976 and 1980, and who once equated television to a "toaster with pictures," Fowler was determined to rescind the Fairness Doctrine over the objections of Congress. In 1985, his FCC issued the "Fairness Report," which concluded that the doctrine had a "chilling effect" on public debate and likely violated the First Amendment: "We no longer believe that the Fairness Doctrine, as a matter of policy, serves the public interest."

Judges took note. In 1986, the U.S. Court of Appeals' Antonin Scalia and Robert Bork ruled in a 2-1 decision that the Fairness Doctrine was not a law passed by Congress and was therefore not binding; it was merely an agency regulation, which meant Fowler's FCC had final say in the matter. In August 1987 the FCC, with Reagan's support, announced the doctrine was dead and that the agency would no longer enforce it.

Capitol Hill revolted. Within months, the House voted 301-102 to codify the doctrine as law, thereby forcing the FCC to reinstate the guideline. The Senate followed suit. Rep. Newt Gingrich, R-Ga., and Sen. Jesse Helms, R-N.C., were among the those who led the bipartisan charge to save the Fairness Doctrine, and in the halls of Congress, Phyllis Schlafly, president of the conservative Eagle Forum, lobbied on its behalf.

Nevertheless, Reagan vetoed the final bill. In 1989, bipartisan Congress members again sought to revive the doctrine, but President George H.W. Bush threatened a veto and stymied their attempt. A third effort in 1993 to get the doctrine passed into law met with little support from the Clinton White House, and so it too languished in Congress.

Today, there are indications that bipartisan support for the Fairness Doctrine lives on, albeit outside Congress. In a poll conducted last April by Garin Hart Yang Research, and commissioned by the liberal advocacy group Media Matters for America, an overwhelming majority of voters -- 77 percent -- favored restoring rules requiring fairness and balance on the public airwaves. What's more, 74 percent of conservatives, and 71 percent of Republicans, agreed that television and radio should be required to present issues in a balanced way.

As an opponent of the doctrine, Thierer at the Cato Institute fears that the recent bad press surrounding the Williams controversy, Sinclair Broadcasting's attempt last fall to run a one-sided anti-John Kerry documentary, and CBS's ill-fated report on Bush's Texas Air National Guard record, may indeed prompt more and more Congress members to give the doctrine another look. When it comes to what ails the media, Thierer says, "The left and the right came to same regulatory conclusion: We should do 'something' about it."

Bipartisan displeasure with the press may also allow the Media Reform Caucus, which at first will likely consist entirely of Democrats, to enlist some Republicans. In the uphill battle to restore real fairness and balance to the airwaves, backers will need all the help they can get.

Eric Boehlert

Eric Boehlert, a former senior writer for Salon, is the author of "Lapdogs: How the Press Rolled Over for Bush."

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