Why California Needs the FCC to Restore the Fairness Doctrine


One of the lesser-known tragedies of the Reagan era was the Federal Communication Commission's decision to abolish the Fairness Doctrine in 1987. That doctrine used to require radio and television stations to air opposing and contrasting views on controversial issues of public importance. In 1992, the FCC expanded its ruling to include ballot measures.

The FCC's decision was largely based on the notion that the Fairness Doctrine had a chilling effect on broadcasters' speech. As the commissioners wrote at the time, “The intrusion by government into the contents of programming occasioned by the enforcement of the Fairness Doctrine restricts the journalistic freedom of broadcasters and actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists.” Frankly, this argument is compelling. Why, for example, should broadcasters be required to air responses to station editorials when newspapers are under no such obligation?

But ballot measures are an entirely different matter. For better or worse, much of California's public policy is now developed through the initiative process. Since 1978, California voters have approved initiatives that have reduced property taxes, adopted a state lottery, protected wildlife, guaranteed public school funding, regulated toxic materials, rolled back auto insurance rates, reformed the criminal justice system, and adopted term limits for state elected officials.

On June 2ndth, Californians will vote on Propositions 16 and 17. Both are prime examples of the citizen-initiative process gone deeply awry.

Disingenuously titled “The Taxpayers Right to Vote Act,” Proposition 16 uses the initiative process to solidify the monopoly power of one company at the expense of California citizens. If voters approve the measure, it will protect PG&E from dissatisfied customers angry about bad service and high costs. The initiative makes it virtually impossible for those customers to escape the investor-owned utility and create their own public power agency or be annexed by a neighboring government-owned and operated utility. Under its provisions, a nearly unobtainable super-majority (two thirds) of the voters in any jurisdiction would have to approve a proposal to switch from PG&E and move to public power. In addition, in a remarkable display of “chutzpah,” PG&E’s planned $35 million campaign to pass Proposition 16 is being funded with ratepayer money.

Mercury Insurance Company is the sole sponsor of Proposition 17. In 1988, California voters approved fundamental changes in auto insurance by passing Proposition 103. Mercury Insurance, the state's third-largest auto insurer, has been fighting for more than 20 years to undo that law. This initiative represents at least the fourth attempt by the company to undermine it.

If passed, it will roll back the Proposition 103 insurance regulations that protect motorists from unfair rate hikes. Proposition 17 allows insurance companies to raise auto premium rates for consumers who have had a lapse in coverage for ninety days. That would include military personnel stationed in the U.S. who need coverage to resume driving after living on base and people who used public transportation for work who now need auto insurance after finding a job that is accessible only by car.

So here we have two companies with unlimited financial resources who are able to subvert the intent of the California progressive movement at the dawn of the 20th century. The California Legislature enacted the modern day initiative process in 1911 as part of a package of reforms that were designed to protect the people of California from the unchecked power of a major corporation. At the time, the corporation in question was the Southern Pacific Railway. Today, both PG&E and Mercury Insurance are using the initiative process to do exactly the opposite of what it was designed to do.

Neither was able to get the legislature to do their bidding, so they hired political consultants, paid millions of dollars to gather signatures, and proceeded to put these self-serving measures on the ballot. Now, they are flooding the airwaves with well-crafted bunk.

Now as always, broadcasters – a powerful player in Washington - rely on the First Amendment to argue that the Fairness Doctrine acts to impede their rights of free expression. However, a core principle of the First Amendment's guarantee of free speech is the ventilation and airing of opposing points of view.

There can be little doubt that the effect of broadcasters’ refusal to provide under-funded campaigns free response time since the repeal of the Fairness Doctrine for ballot measures in 1992 has been to increase the amount of one-sided information voters receive before entering the voting booth. This is hardly the kind of open and free debate the framers of our Constitution had in mind when they wrote the First Amendment.

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