Reclaiming a Public Resource: The Constitutionality of Requiring Broadcasters to Provide Free Television Advertising Time to Candidates for Federal Office


In the last half century, political campaigns have moved from the railroad whistle stops and town meetings to the airwaves. Television airwaves, like the train stations, town halls, and parks in which candidates traditionally campaigned, are public property. However, unlike the traditional fora, access to the broadcast media (other than in news broadcasts) costs presidential campaigns millions of dollars in each federal election cycle. As a result of the increased reliance of campaigns on the broadcast media, the costs of running for elective office have escalated dramatically. During the last thirty years the real dollar cost of presidential campaigns alone has increased 500%, from just over $25 million in 1960 to $125 million in 1988. This trend reflects an explosion of campaign spending on television advertising. While candidates for all offices spent just over $30 million on television advertising in 1970, that figure had ballooned to over $230 million in 1988.

Currently, there are two proposed approaches to the dangers posed byescalating campaign costs: federal subsidization of campaign spending, and federal regulatory reduction of campaign costs. The combination of these approaches would require that broadcasters provide a specified amount of free television advertising time to candidates for federal office as a condition for the grant of a broadcast license. Candidates accepting free advertising time would, in turn, be required to refrain from purchasing any other television advertising time. This Note addresses the constitutionality of this combined approach to the problem of massive campaign spending on television advertising.

In recent decades, the only solution offered to resolve the problem of escalating campaign costs has been public subsidization of presidential campaigns. For example, in 1971, Congress passed the Federal Election Campaign Act [hereinafter FECA], providing full federal funding for presidential general election campaigns and matching funds for presidential primary campaigns. Additional legislation has been proposed, but not yet passed, which would create public financing for campaigns for the Senate and the House of Representatives. Like FECA, these bills generally take a two-pronged approach to the problem of campaign financing. First, they would provide public financing in an effort both to limit the amount of time candidates must spend fund-raising and reduce candidates’ reliance on contributions from political action committees. Second, they would limit the total amount of money candidates may spend in their pursuit of office in an effort to equalize the amounts opposing candidates may spend in the same race.

Other proposals focus only on the second prong – limiting the expense of campaigns – through regulatory reduction in the cost of using the broadcast media for campaign advertising. This approach has met with limited success in the past. For example, a provision of FECA amended the Communications Act of 1934 [hereinafter the Communications Act] to limit the amount broadcasters may charge for political advertising in the time prior to the election. Pending legislation would require broadcasters to charge lower advertising rates, or provide advertising time free of charge to candidates running for federal office.

These proposals generally seek to “attack the problem of spiraling costs of political Federal campaigns at its source,” most often identified as the expense of media broadcast time. Senator Claiborne Pell, a sponsor of proposed legislation taking this approach, argued that it is “essentially a no-cost bill in terms of the value of the media time that would be given to the political process.” According to Pell,

The basic commodity of the bill is an existing public resource – namely the airwaves – which the Congress can properly require to be used for political debate . . .. If we are truly concerned about curbing the cost of campaigning, it makes sense to use an available public resource to substitute for this major category of expenditure.

The proposals are based on the assumption that broadcasters are licensees of the federal government, broadcasting over publicly-owned airwaves. For simply the cost of an application, licensees are granted use of particular frequencies of the broadcast spectrum. The limited nature of the spectrum makes individual frequencies extremely valuable. The broadcasters with access to these frequencies, thus, have a government created monopoly, which in turn makes broadcasters responsible to the public. Such responsibility has been expressly created by statute. The Communications Act, for example, requires the Federal Communications Commission [hereinafter FCC] to base the grant of a broadcast license on what is consistent with the public interest. It also requires broadcasters to allow federal candidates “reasonable access” to broadcasting time, and to provide balanced coverage of issues of public importance.

The first three Sections of this Note provide a foundation requirement for a discussion of the constitutionality of a two-pronged requirement that television broadcasters provide free advertising time to federal candidates and that candidates limit their television advertising. The statutory provisions regarding public financing of campaigns for federal office and the constitutionality of the concomitant restrictions on candidates’ spending is described in Section I. Section II analyzes the statutory and regulatory scheme by which the federal government regulates the broadcast media in the public interest, and discusses the constitutionality of that regulation in light of the first amendment prohibition on government restriction of speech. Section III discusses the constitutional prohibition on the government’s taking of private property for public use without just compensation, since one of the constitutional questions raised by the proposed requirement is whether the government may require broadcasters to give up advertising time for which they would otherwise be receiving payment from advertisers. This Section also analyzes the relationship between the takings rule and the unconstitutional conditions doctrine, which prohibits the distribution of government benefits in an unconstitutional manner.

Finally, Section IV of this Note will argue that the requirement is not a taking of property, but a constitutionally permissible condition on the grant of a government license. The Note concludes that requiring broadcasters to provide free television advertising time to candidates for federal office violates neither the broadcasters’ nor the candidates’ first amendment right to free speech, nor the broadcasters’ fifth amendment right to just compensation for the taking of their property for public use.

Suggested Reading