DURING THE CLOSING days of the recent campaign, when political commercials seemed limitless, it must have seemed unthinkable that broadcasters have the power to keep ic>any political message off the air.
But they can do that, for any reason, or no reason at all, regardless of how factually accurate the commercial, or how important the issue -- even the danger of nuclear war.
I learned that lesson as chairman of Citizens for Common Sense in National Defense, a group formed last July to hold certain senators and congressmen accountable for their opposition to the nuclear weapons freeze. We also had a more general mission: to persuade the "hawks" in Congress that they could no longer pursue a militaristic policy with impunity; that they, like the "doves" in 1980, might pay a political price.
Our plan was to produce a powerful and factually unassailable TV spot and to air it in the states and districts of three senators -- Hatch of Utah, Schmitt of New Mexico and Wallop of Wyoming -- and seven representatives, including House Minority Leader Bob Michel. The commercial would urge viewers in each of the 10 races to defeat the incumbent because of his opposition to a prompt nuclear weapons freeze.
That was our plan. But of those 10 contests, we could only get our message broadcast in three. The broadcasters froze us out of the other seven.
We planned to operate as an independent expenditure political action committee (PAC), which meant that our efforts had to be separate from those of the candidates. That placed us in the same legal and strategic pigeonhole as the National Conservative Political Action Committee (NCPAC), which was widely credited in 1980 with the defeat of such Democratic senators as South Dakota's Georgia McGovern, Iowa's John Culver and Idaho's Frank Church by flooding the airwaves with raw, emotional -- and often misleading -- "negative advertising."
We were determined from the outset to distinguish ourselves from NCPAC. We would not impugn the incumbent's character or motivations. We would insist that our commercial be factually documentable. To assure others on that score, we prepared a seven- page memorandum documenting the 99 words of our spot.
Our commercial dealt with the danger of a nuclear war by computer error -- a danger that will increase if, without a nuclear freeze, the superpowers deploy weapons like the Pershing II missile that will cut down reaction time, thus making world leaders more dependent on computers.
The picture portion of our spot showed a mother sending her children off to school, intercut with a simulated computer room at a missile launch center. At the end of the commercial, a small computer component shorts out, sounding an alarm.
Frightening, yes, but only fractionally as frightening as nuclear war itself and, more to the point, based in fact. Twice in 1980, our SAC bomber crews were sent scrambling to their planes because of the failure of a single computer chip costing just 46 cents.
In late September, our commercial completed and documented, we set out, through Jack Fiman, our time-buyer in Los Angeles, to purchase air time for the last week of the campaign. Like any manufacturer of corn flakes or deodorant, we began by asking for "availabilities." While some stations did not respond, in every one of the 10 races we had targeted at least one station offered us time. We instructed Fiman to place orders in all 10 markets.
So on Oct. 18, a week before our spots were to begin airing, everything seemed set. We sent the commercial, plus the documentation memorandum, to the stations with which we had placed purchase orders.
Then, the unexpected happened. Suddenly, one by one, stations that had accepted our order called -- sometimes as late as the day our spot was to begin airing -- to say they weren't going to run our commercial after all.
Why not? Here are some of the reasons, as they were relayed to Jack Fiman, our time buyer:
"Does not reach acceptable standards."
"I don't think this is the style that the people of Wyoming like. In my judgment, it is not in the interest of the populace of Wyoming. They would not understand."
"(We do) not believe that how an incumbent voted (on the nuclear freeze) constitutes a 'controversial issue of public importance.' "
". . . not in the best interest of the station to run it." (Emphasis added.)
Station WJIM in Lansing originally told us it had available time and took our order; but when the spot arrive d, it suddenly was "sold out."
Since our commercial dealt, not with the compararive merits of laxatives or detergents, but with the danger of nuclear war, those reasons -- or non-reasons -- were distressing enough. But, even more disturbing, some of the stations appeared to have changed their minds because of protests from one or both of the political candidates.
Shortly after our spot arrived in Peoria, Jack Fiman was told that it got an enthusiastic reception from the sales manager of station WEEK. But by week's end, Fiman got word that neither of Peoria's two TV stations would be airing our commercials.
What had happened? We were told that Rep. Michel had learned of our commercial via a network newscast and had complained that it was misleading to say that he had "voted against the nuclear freeze." He had, he said, voted for a freeze -- the Reagan-backed "freeze with parity."
The facts were these: First Rep. Michel had stated on the House floor that any freeze "that would deny (the U.S.) the right to build a B1 or the MX or the Trident is not acceptable" and "would be tantamount to national suicide." That is, the only freeze acceptable to him was a freeze after another round of U.S. buildup that will take several years. Those Michel statements were included in the memorandum we had furnished all TV stations.
Second, our commercial talked of a nuclear freeze under which "both sides would agree now to stop building more nuclear weapons." We carefully used the word "now" in anticipation of the very protest lodged by Michel. By his own words, Michel was opposed to a freeze "now."
Question: Which was more misleading to the people of the 18th District of Illinois: to air our commercial saying that Michel had opposed the freeze? Or to accede to Michel's claim, keep our spot off the air and perpetuate the impression that he had supported a meaningful nuclear freeze?
WRAU Station Manager Rice cose the latter course. Placing our commercial under a semantic microscope, he concluded that the word "now" was too far separated from "he voted against the freeze," and that by failing to state explicitly that Michel had voted against the Kennedy-Hatfield version of the freeze, we were guilty of deception by omission.
Station WEEK-TV also declined to run our spot ("too controversial," we were told) and as a result, none of Bob Michel's constituents saw it. Michel in a traditionally heavily Republican district, squeaked through with 51.6 percent of the vote.
In Salt Lake City, the scenario was different.
Three days before our commercial was to begin airing, a sales representative of station KTVX told Jack Fiman that "the two (senatorial) candidates (Republican Sen. Orrin Hatch and Democratic challenger Ted Wilson) have gotten together and decided that there are certain issues they don't want to deal with and this issue is one of those. This is something we don't want to air in our marketplace because we are going against the wishes of the two candidates."
In answering a complaint we filed with the Federal Communications Commission, KTVX did not deny the bipartisan protest, but said the station had decided "earlier this year not to sell any time" to independent political action committees. Why, then, had they offered us time for sale and taken our order?
Ironically, in some cases the strongest opposition to our ad came from the intended beneficiary -- the Democratic challenger. In the Wyoming senatorial race, for example, Rodger McDaniel, seeking the seat of Republican Sen. Malcolm Wallop, not only weighed in personally with local TV stations, but told our group, in a telegram, that "I deeply resent" an "out-of-state group intruding into a Wyoming election," in view of Wyoming's "proud tradition of making its own political decisions without any guidance from out-of- state groups."
To the best of my knowledge, McDaniel's resentment was conspicuously unvoiced when he accepted nearly a third of his campaign funds from out-of-state political action committees, principally labor unions.
His opponent, Sen. Malcolm Wallop, was even more oblivious of his state's "proud tradition": he accepted nearly 45 percent of his campaign gifts from out-of-state PACs, whose interests were, at best, tangentially relevant to the well-being of Wyoming.
By contrast, if there is an issue that knows no state boundaries, it is the danger of nuclear war. In such a war, there would be no "outsiders."
The pervasive dependence on outside PACs renders candidate protestations about "outside groups" suspect, if not spurious. To test that proposition, our group offered to withdraw its commercial if the candidates in any of the 10 races were sufficiently concerned about "outside influence" to return their contributions from out-of-state PACs. We got no takers.
By the end of Oct. 25, the day our ad was scheduled to begin running, the 10 contests in which we had hoped to air our spot had dwindled to three. The broadcasters in the other seven had, for various reasons -- or for no reason at all -- frozen us out.
My initial layman's reaction was, "They can't do this to us. What about our First Amendment right to speak?"
But legal experts advised me that the stations were acting within their court-given rights; that under court decisions, non-candidates such as we have zero right of access to the airwaves, and that broadcasters have virtual carte blanche to be as arbitrary as they choose in turning us down.
So, other than filing two complaints with the FCC (which were dismissed), we had no legal recourse. All we could do was to purchase, in the cities from which we had been excluded, full-page newspaper ads. There, too, we were frozen out of one city: the Albuquerque Journal declined to publish it, on the ground it contained libelous innuendoes against the TV stations. The argument puzzled us: that danger was not perceived by any of the other 10 papers in which we placed the identical ad.
While broadcasters may deny air time to non-candidates, Congress has guaranteed political candidates themselves a right to "reasonable access" to the airwaves. Ironically, moreover, once a station has agreed to carry a candidate's commercials, it may not alter them in any way, even if the broadcaster has reason to know that a commercial is false. misleading or even libelous.
What kind of law is it that not only permits but ic>obliges a station to air Massachusetts' Rep. Margaret Heckler's claim that Rep. Barney Frank had "sponsored a bill to permit legalized prostitution" (when in fact he had sought to confine it to "adult recreation zones"), while empowering another station to reject our spot because of the alleged misplacement of the word "now," and permitting still others to be wholly arbitrary about declining such a meticulously documented ad as ours?
It's the arbitrariness to which I object, the absence of a rational system with publicly stated rules governing the airing or non-airing of political messages by non-candidates.
I find this especially objectionable when the judgments are made by persons who are accountable for their decisions only in theory, since not a single broadcaster ever has lost his license for failing to carry a political ad.
I also find it incongruous that in the name of protecting the First Amendment rights of broadcasters, they are empowered to ic>curb speecn to h and deny viewers and listeners their right to see and hear.
The Supreme Court, in denying non-candidates the right of access to the airwaves, explicitly foresaw that Congress or the FCC might, "at some future date . . . devise some kind of limited right of access that is both practicable and desirable." Congress has already guaranteed "reasonable access" for political candidates, and the FCC has issued rules for implementing that right. Especially as long as the Federal election laws sanction independent groups, I see no reason why Congress couldn't adopt a similar system for, say, non-candidates who wish to speak on ballot issues. A rule requiring that each ad be accompanied by supporting documentation might have a salutary effect (especially if applied to commercial as well as political advertising).
Anything is better than continuing the arbitrary right of broadcasters to decide "what is in the interest of the populace" (to quote one Wyoming station manager) to see or hear.