Congress attempts to codify the Fairness Doctrine

An article from CQ Almanac 1987

President Reagan beat back a determined congressional bid to codify the so-called “fairness doctrine,” which required broadcasters to air controversial public issues and to cover all sides of such issues.

The House had included the requirement in its version of the omnibus fiscal 1988 funding bill (H J Res 395 — PL 100-202). But negotiators backed down after Reagan insisted he would veto the bill unless the plan were dropped. (Continuing resolution, p. 480)

On June 19, Reagan vetoed separate legislation (S 742) codifying the doctrine, and no override was attempted. Although many lawmakers argued the fairness requirement should be retained in light of the scarcity of broadcast outlets, Reagan called it a curb on the free speech of broadcasters. Following the veto, the Federal Communications Commission (FCC) voted to abolish the 38-year-old doctrine.

Proponents of fairness provisions vowed to resume the fight in 1988. “We will be patient and persistent,” declared Ernest F. Hollings, D-S.C., chairman of the Senate Commerce, Science and Transportation Committee.

Underlying the dispute was a deep-seated split between the administration and Congress over who should set communications policy.

Lawmakers had hoped to reassert their influence after some six years of activism by the FCC, which had sought to loosen government controls on the communications industry.

Senate Action

By a vote of 14-4, the Senate Commerce Committee March 24 approved a bill (S 742 — S Rept 100-34) that would have written the fairness doctrine into law. The doctrine, long enforced by the Federal Communications Commission, required broadcasters to provide a “reasonable opportunity” for the discussion of conflicting views on important public issues.

The committee’s action was prompted by a ruling in September 1986 by the U.S. Court of Appeals for the District of Columbia that the FCC could repeal the standard without congressional approval. Before the ruling, the fairness requirement was widely thought to have its basis in the 1959 amendments to the Communications Act (PL 86-274).

But the court declared that the amendments merely ratified prior FCC enforcement of the doctrine. (The Supreme Court June 8 denied a request by a public interest group to review the decision.)

Commerce members were concerned that the FCC, under the leadership of departing Chairman Mark S. Fowler, would scrap the doctrine. Fowler often criticized it as a violation of free speech that inhibited broadcasters from airing controversial subjects for fear of having to yield time for opposing viewpoints.

Committee Chairman Hollings, author of S 742, contended that the fairness doctrine had provided the public with a greater range of views upon which to base decisions.

Committee opposition was led by Bob Packwood, R-Ore., who shared Fowler’s misgivings and sponsored separate legislation (S 827) to repeal the doctrine.

Many in the broadcasting industry also opposed the bill, and they contended that the proliferation of radio and cable television outlets had voided the need for governmental supervision.

Despite the opposition of the administration and broadcasters, the Senate April 21 passed S 742 by a vote of 59-31. (Vote 75, p. 16-S)

Hollings argued on the floor that broadcasting outlets remained scarce and that the fairness standard enriched public debate. But Packwood countered that the power to shape programming that the doctrine effectively gave the FCC was “a terrible power to put in the hands of government in this country, any government, conservative, liberal or otherwise.”

Sponsors of the bill found support from a wide range of sources, including consumer advocate Ralph Nader, who saw the standard as increasing public access to the air-waves, and conservative activist Phyllis Schlafly, who feared what she called “monopoly power” exercised by the “big three networks.”

House Action

The House Energy and Commerce Subcommittee on Telecommunications and Finance May 7 agreed by voice vote to an identical measure (HR 1934 — H Rept 100–108) to codify the doctrine.

Six days later, the full Energy and Commerce panel approved the bill by a vote of 33-8. The committee defeated by voice vote an amendment by Bill Richardson, D-N.M., that would have established a nine-member commission to review the impact of the fairness doctrine legislation.

The House June 3 sent S 742 to the White House. The action came after lawmakers voted 302-102 in favor of HR 1934, despite urging by the Reagan administration to vote against the bill. S 742 was then passed in lieu of the identical Energy and Commerce measure. (Vote 164, p. 50-H)

The House rejected, by a vote of 71–333, an amendment to HR 1934 by Bill Green, R-N.Y., that would exempt radio stations from the standard.

Green said the fairness requirement was not necessary, since there were already some 10,000 radio stations in the country, offering “a wide variety of points of view.” (Vote 163, p. 50-H)

But Al Swift, D-Wash., countered that listeners in rural communities typically had limited access to the airwaves.

Veto Confrontation

As expected, Reagan vetoed the bill on June 19, arguing that the fairness doctrine restricted broadcasters’ freedom of speech. (Veto message, p. 18-D)

Four days later, the Senate agreed to refer Reagan’s veto message to the Commerce Committee, after backers of the bill acknowledged they lacked the two-thirds majority needed to override the president’s veto.

Democrats said they would wait until later in the year to attach the doctrine to other legislation the White House might find more difficult to resist.

All but three Democrats supported the procedural motion by Hollings to send Reagan’s message to the Commerce panel. The motion was approved 53-45. (Vote 154, p. 30-S)

Packwood said Democrats refused to allow a vote on the veto message because they did not want to blemish their perfect override record in the 100th Congress. Earlier in the year, Congress had successfully overridden White House vetoes on clean water and highway and mass transit legislation.

“Very clearly, it is not in the interests of the Democrats for the president to win anything,” Packwood said. “But the public can be well aware that the president would have won a victory today. The veto would have been sustained.”

Eighteen Republicans initially supported the bill, but Packwood said he persuaded some of them to back the president and vote to sustain the veto.

Subsequent Dispute

The fight over the fairness doctrine was resurrected later in the year as members of the Senate Commerce Committee tried to use an omnibus budget-saving measure to enact the broadcasting requirement.

The committee agreed Oct. 21 to assess violators of the standard a penalty upon sale of their broadcasting outlets. On the grounds that no such fee could be collected without a doctrine on the books, the panel also included language to codify the doctrine abolished Aug. 4 by the FCC.

The provisions were part of a “reconciliation” package aimed at meeting a $394 million deficit-reduction target set for the committee by the fiscal 1988 budget resolution (H Con Res 93). The panel rejected 6–11 a motion by the committee’s ranking Republican, John C. Danforth, Mo., to strike the fairness provisions from the measure.

However, when the reconciliation bill (HR 3545 — PL 100-203) reached the Senate floor Dec. 10, Hollings agreed to drop the controversial fairness provision, in part because he hoped it would lessen opposition to another proposal he had to charge broadcasters a fee that would be used to support public broadcasting ventures. (Budget reconciliation, p. 615)

Meanwhile, the House Appropriations Committee rejected an attempt by the House leadership to include the fairness doctrine in a catchall spending bill (H J Res 395) to keep the government running through fiscal 1988.

At the leadership’s request, Neal Smith, D-Iowa, offered the fairness doctrine amendment in committee. But Chairman Jamie L. Whitten, D-Miss., opposed the move, arguing that other committees increasingly looked to Appropriations to provide cover for measures that could not be passed on their own.

“This is not a vote on the merits,” said Whitten. “It’s a vote to keep this bill where we can handle it.” Smith’s amendment was defeated 20–28.

When the measure came to the House floor Dec. 3, however, an amendment by Energy and Commerce Committee Chairman John D. Dingell, D-Mich., to write the fairness doctrine into law was approved by a vote of 259-157. (Vote 455, p. 138-H)

In a conference on the legislation, Senate negotiators initially agreed to retain the House-passed provision, despite a threat by Reagan that he would veto the entire spending bill as a result.

But as the end of the year drew near, members retreated from the confrontation. At a stormy session Dec. 21, Senate conferees voted 15-12 to reconsider their earlier decision. They then voted 14-13 to leave the fairness doctrine off the bill.

House members voted 11-9 to insist on their provision, and then, on a 10-10 tie, refused to reconsider. But Rep. C. W. Bill Young, R-Fla., was expected to arrive from Florida later that day and reverse the vote.

Meanwhile, House leaders became increasingly concerned that if their members continued to insist on the provision it would mean no bill would pass. When the conference resumed later that evening, the House side, directed to dump the doctrine, did so by voice vote.