The Fairness Doctrine Vote Proves Conservative Noise Machine Still Strong As Ox But Twice As Dumb.

Conservatives take joy where they can these days, so no surprise they are busy patting themselves on the back for attaching to the DC Voting Rights Bill an amendment to prevent the FCC from reviving the “Fairness Doctrine.” It makes an interesting case study on a number of levels. First, how does the conservative echo chamber still manage to get a Democratic Senate to vote for an item pushed by conservative talk radio 87-11? Were the situation reversed, and liberal Senators wanted to attach some piece of useless legislation promoted by Air America, such as a ban on banging your head against the wall until you fall unconscious, conservatives would take joy in crushing it just to show the bleeding heart Liberal wussies who rules the roost.

Of course, some of it may be the piece of legislative jujitsu pulled off by Senator Durbin, which modified the amendment to reenforce the overall regulatory power of the FCC to promote diversity. All in all, this makes an excellent case study on how Rush and his crew are leading the GOP back to glory while the Ds stay focused on being effective.

Details below . . .

For some time now, the Fairness Doctrine has been the favorite boogeyman of the conservative punditry and their chief rallying cry. Well, I suppose if I had programming like that (i.e. which appeals to an increasingly undesirable advertising demographic consisting of broke angry white guys over 50 driven primarily by rage) I’d also be scared sh**less of people hearing any alternative. Still, to mangle a phrase, “the crappy flee where no one persueth.” Everyone from Obama on down has said they have no intention of reviving the Fairness Doctrine. But, as this profile of young conservatives in the Washington Post demonstrates, conservatives long ago gave up on “the power of ideas” and now rely solely on trying to provoke outrage. And the Fairness Doctrine, combining as it does the specter of Big Government dictating content and a theoretical assault on conservative radio by requiring some reasonable airing of opposing views, is tailor-made to provoke outrage. Even better, like the old joke about the mouse statue that keeps elephants out of the peanut factory, the fact that no one actually wants to bring it back makes it very easy to claim you defeated it.

Still, given handy majorities in both the House and Senate, you would expect an effort to amend the D.C. Voting Rights Act with an utterly unrelated amendment barring the FCC from reviving the Fairness Doctrine would not get a majority. After all, if the tussle over ARRA and the posturing over the budget teaches anything, it is that the Republican leadership has no interest in compromising to get legislation they want passed. (Or, as Rush told CPAC last week, “To us, bipartisanship is them being forced to agree with us after we politically have cleaned their clocks and beaten them. And that has to be what we’re focused on.”) But not only did the Rules Committee deem it of sufficient relevance to the DC Voting Rights Act to allow it to come to the floor as an amendment, but it passed 87-11.

It is tempting to regard this as evidence of the power still latent in the conservative noise machine, and there is some truth to that. As we saw during the stimulus fight, progressives remain new to the concept of staying engaged, whereas the conservatives have spent over 15 years conditioning the news media and members of Congress to kowtow to their demands. Thus, despite consistent polling evidence that the majority of Americans don’t particularly care what the conservative punditry say and the Dems can defy them with impunity, we keep seeing the chattering class acting as if the conservatives had won the election and questioning why the Democrats why they think they can go ahead and keep their campaign promises.

But while the conservative noise machine remains strong, it also remains incredibly stupid. Senator Dick Durbin substituted an amendment for the original DeMint Amendment. Both ban the FCC from reviving the Fairness Doctrine (which, again, no one actually wants to do). But the Durbin Amendment actually strengthens the FCC’s authority to regulate on issues progressives do care about. Here’s the language of the DeMint Amendment:

(a) LIMITATION ON GENERAL POWERS: FAIRNESS DOCTRINE.—Title III of the Communications Act of 1934 is amended by inserting after section 303 (47 U.S.C. 303) the following new section:

Notwithstanding section 303 or any other provision of this Act or any other Act authorizing the Commission to prescribe rules, regulations, policies, doctrines, standards, guidelines, or other requirements, the Commission shall not have the authority to prescribe any rule, regulation, policy, doctrine, standard, guideline, or other requirement that has the purpose or effect of reinstating or repromulgating (in whole or in part)—
(1) the requirement that broadcasters present or ascertain opposing viewpoints on issues of public importance, commonly referred to as the ‘Fairness Doctrine’, as repealed in In re Complaint of Syracuse Peace Council against Television Station WTVH, Syracuse New York, 2 FCC Rcd. 5043 (1987); or
(2) any similar requirement that broadcasters meet programming quotas or guidelines for issues of public importance.

This would not only have eliminated the old Fairness Doctrine, but pretty much any effort to impose public interest obligations of any kind (especially once the D.C. Circuit got its activist little mitts on it). But the Durbin Amendment supplements this and “clarifies” it by adding:

(a) CLARIFICATION OF GENERAL POWERS.— Title III of the Communications Act of 1934 is amended by inserting after section 303 (47 U.S.C. 303) the following new section:
The Commission shall take actions to encourage and promote diversity in communication media ownership and to ensure that broadcast station licenses are used in the public interest.
(b) CONSTRUCTION.—Nothing in section 303A shall be construed to limit the authority of the Commission regarding matters unrelated to a requirement that broadcasters present or ascertain opposing viewpoints on issues of public importance.

So the DeMint Amendment prevents the FCC from reviving the Fairness Doctrine as it existed when repealed by Syracuse Peace Council in 1987 — which nobody wanted to revive anyway — and in exchange creates an affirmative obligation to “encourage and promote diversity” and “ensure that broadcast station licenses are used in the public interest.” Way to go Conservatives! You sure showed those Liberal wussies whose boss! Or, to quote my favorite conservative, Eric Cartman: “You guys are hella stupid.”

Mind you, I think it probably would have been better in the long run to simply squash this amendment (and other such efforts) rather than give the conservatives bragging rights. And — assuming this passes, which is not at all certain — it may have some impact on the pending litigation around the FCC’s localism and public file proceedings. Still, it makes an interesting case study in the way in which the conservative movement has reduced itself to exulting form over substance for the pleasure of claiming victory and stoking its base, while the Democrats remain focused on actually achieving things.

Stay tuned . . .


  1. I would not stand by your ‘nobody wants it’ line —

    — “I absolutely think it’s time to be bringing accountability to the airwaves,” Sen. Debbie Stabenow, D-Mich., told liberal radio host Bill Press last week.

    — “I pledge to you to study up on the ‘Fairness Doctrine’ so that, one day, I might give you a more fulsome answer,” White House press secretary Robert Gibbs said. (Why study something you don’t think is worth executing?)

    — BILL PRESS: Alright, well good for you. You know, we gotta work on that, because they are just shutting down progressive talk from one city after another. All we want is, you know, some balance on the airwaves, that’s all. You know, we’re not going to take any of the conservative voices off the airwaves, but just make sure that there are a few progressives and liberals out there, right?

    SENATOR TOM HARKIN (D-IA): Exactly, and that’s why we need the fair — that’s why we need the Fairness Doctrine back.

    Stabenow has subsequently recanted. But the point is, it is in many hearts that they wish its return. It is only the fact that they receive negative feed back that they relent.

    You also make the fatal error of many on the left do in assuming that a cabal exists between talk radio and the Republican Political Class. There is a huge chasm between the two. It has gotten larger over time which culminated in the 2006 wins for the Dems. Talk radio today is actively attacking the Republican Political Class for being sell outs. Or have you totally missed the Limbaugh-Steele-Cantor pissing contest? They have subsequently gone kissy-kissy but there is no love lost there.

    Fairness doctrine on the ARRA bill. Probably not good politics. But then the ARRA itself is probably going to be challenged and remanded to 1st Circuit. The wording on what qualifies for representation is quite strict in the Constitution.

  2. Fair point on the “nobody” I suppose. If it is where folks chose to put their resources who am I to say them nay.

    I also don’t assume a cabal. I think the relationship at the moment is that the Republican political class sucks up to the conservative punditry, recognizing that folks like Rush Limbaugh and Sean Hannity have more loyalty among current Republican voters. This is simply more pandering.

    I also think you confused ARRA 9the stimulus bill) with the DC Voting Rights Act. I expect the guts of the DC Voting Rights Act to be declared unconstitutional (you can’t just give someone voting representation ’cause you feel like it no matter what the equities. It needs a constitutional amendment similar to the one used to give DC votes in the Electoral College). But the anti-Fairness Doctrine provision has a severability clause. Even if the rest of the statute is unconstitutional, this provision lives and dies on its own merits.

  3. Thanks for including the texts of the amendments. This certainly does seem like “The Fairness Doctrine” in so many words is gone for good, but depending on the whims of the FCC, diverse ownership and, actually, anything else the FCC thinks is important, could have the same effect. Taken together it’s not obvious to me that the amendments changed anything.

    The Presidency (through FCC majority) has always included de facto control of allowed topics for broadcast, hasn’t it? Recent Republican presidents have made a great show of their FD opposition, but Nixon, for example, threatened the broadcast license of a station owned by the Washington Post. I guess Clinton ignored FD out of bipartisanship, although talk radio may have been less politically important for much of his tenure than it has been in years since.

    So, did DeMint’s amendment actually make things any worse for free speech, whether by encouraging Durbin’s amendment or in any other way? I can’t predict all the machinations of the FCC, but I can’t see that it did. You wouldn’t know that from listening to the actual thing. For days Rush, Hanity, et al. have been griping that Durbin’s amendment heralds the rise of “localism” (a bad thing when I go surfing, for sure; in this context, who knows?). It certainly hasn’t been exultation, although for all I know DeMint has been exulting or whatever. (Am I listening to too much talk radio? What can I say? I’ve been driving a lot, and the local NPR stations play way too much classical music.)

    As an aside, Mr. Feld, it’s your blog and all, but in future can we expect less objective analysis of FCC regulation and the telecom market, and more of this sort of us-vs.-them stuff?

  4. Jess:

    I’ve always been upfront and opinionated and quite snarky to Republicans and Democrats when I think they deserve it. And I’ve certainly not been shy in the past about my party affiliation (D) and my general political philosophy (progressive). Certainly my ire is usually directed at incumbents and at FCC proceedings. But with the FCC focused heavily on DTV, and my own work focusing more on things like the stimulus package, recent posts have focused more on Congress and legislation. with Republicans often opposing things I believe in, recent posts have had a more heavily partisan flavor. Fortunately, there is always JohnMc to take me down a peg if I mess up.

    I don’t particularly expect to be focusing in on Congressional doings, unless that remains the source of action. I do expect to post more on ARRA (such as the DUNS post) and other developments.

  5. Whether the FCC’s fairness doctrine should be reinstated for talk shows and news coverage can be debated, but we badly need it back to balance paid advertising in ballot measure campaigns (which affect 75% of the US population).

    The fairness doctrine used to apply to TV ads for controversial products (e.g., cigarettes). It required stations to broadcast one free counter-ad for every 3 to 4 paid commercials. This reduced cigarette purchases in the late 1960s.

    It also brought balance to ballot measure campaigns. In 1988, California citizens placed a cigarette tax increase initiative on the ballot. The cigarette industry spent over $10 million on “NO” ads, while proponents had virtually no money for “YES” ads. The fairness doctrine required TV stations to give the “YES” side one free ad for every three “NO” ads. The measure passed. Proponents cited the fairness doctrine as a critical factor in their success.

    Without the fairness doctrine, heavily negative advertising from industry groups is often unopposed, leaving voters in the dark as they cast their ballots.

    Reinstatement of the fairness docttinr judy for ballot measure campaigns would offer some balance to the paid commercials that, unfortunately, now dominate the airwaves during elections.

    If the people are to vote directly on ballot measures that affect their lives, shouldn’t they hear both sides of the story?

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